Property
Class Notes
We’re
going to omit pp. 218-249.
Statutory reform of the Rule
Against Perpetuities
O.R.C. § 2131.08. Statute against perpetuities.
(C) Any interest in real or
personal property that would violate the rule against perpetuities, under
division (A) of this section, shall be reformed, within the limits of the rule,
to approximate most closely the intention of the creator of the interest. In
determining whether an interest would violate the rule and in reforming an
interest, the period of perpetuities shall be measured by actual rather than
possible events. * * *
Section
(C) is a combination of two reform elements: cy pres (which applies to the law of charitable trusts) and
wait-and-see. For example, the March of
Dimes used to raise money to treat polio.
Once polio was cured, they changed to birth defects. But you need to get permission from the court
to do that. The doctrine of cy pres says that if things go on for a
long time, it might be impossible to accomplish the original purpose, so you reform the original document to keep
with the testator’s intent. So this is a
doctrine of reform, trying to keep
with the testator’s intent.
The
second thing is that the statute adopts “wait-and-see”. In determining if the Rule has been violated,
you don’t indulge in all the crazy assumptions like the fertile octogenarian and
the unborn widow: you actually wait and
see what happens. You judge the
validity of the gift by actual
events, not possible events.
So
first: we’ll find if the gift violates the common law Rule Against Perpetuities. If not, you’re done. If so, we figure out what the potential problem is, which tells us how
long we have to wait. Then we wait and
see if the contingent remainder vests or fails too remotely. If we wait all that time to find out if the
gift actually violated the Rule
Against Perpetuities, then we reform it at the date we find it in violation in
order to bring it into compliance, taking into account the testator’s intent. By that time, the testator will be dead.
Options and rights of first
refusal
We
haven’t talked about these, but an option is a right to purchase something at a
certain price at a future time. A right
of first refusal is a promise to first offer certain property to a certain
person before it’s made available for anybody else. These may have Rule Against Perpetuities
problems! For example, what if the
parties are corporations? Traditionally,
the courts have applied the Rule Against Perpetuities and have struck down
options and rights of first refusal if they didn’t end or have to be exercised
within 21 years. Wait and see applies to
these and cures most of the problems.
Usually, the parties didn’t intend
for these things to be perpetual, and wait and see cures their ills.
Wait
and see doesn’t make things easier! If
anything, according to Braunstein, it makes matters more complicated!
The Uniform Statutory Rule
Against Perpetuities
This
version of the Rule says that you just wait some fixed period (like 90 years) regardless
of any lives in being. You just wait
that period of time from the creation of the gift! Then you void any contingent remainders that
linger. There are plusses and
minues! You have to wait a long time,
and these interests are guaranteed to
hang around a long time even if they eventually fail!
Whether
you like this version depends on how you feel about the marketability of land
and how you feel about “dead hand control”.
The
This
statute reflects a more piecemeal approach.
This statute tries to limit the most extreme applications of the Rule
Against Perpetuities, but otherwise tries to leave the common law Rule intact.
Practice problems revisited
using
1.
“Orville to Andy and his heirs so long as the land is farmed; but if it
is not farmed to Bonnie and her heirs.”
a. Under
b. Under Ohio law: Since Ohio
law measures by actual rather than possible events, I think we will wait
and see whether the land is still being farmed 21 years after the death of the last
life in being at the time of this gift (Braunstein suggests it would be 21
years after Andy died). If it is still being farmed, I think the gift
must be reformed to destroy the contingent remainder. The remainder has to vest in someone (maybe becoming
possessory) or just end. Orville maybe wanted
to keep the land as a farm, but he’s only allowed to control the land 21 years
after Andy, Bonnie and himself are all dead.
We would need more information about what Orville really wanted.
4.
“Orville to Adam for life, then to Adam’s children for life, and then
to Adam’s grandchildren who survive their parents.”
a. Under
b. Under
5.
“‘Orville to Arvid for life, then to his widow, and then to his
children who survive her.’ Assume that
Arvid is 89 and is married to Bella, his wife of 65 years, and that they have
three children.”
a. Under
b. Under
7.
“Orville to Abby for life, then to her children who reach the age of
30.”
a. Under
b. Under
O.R.C.
§ 2131.09 says if you create a trust with a trustee who can create a fee simple
absolute in Ohio, then the Rule Against Perpetuities doesn’t apply. Now it’s possible if you just create
equitable interests and if the trustee or trust property is domiciled in
These
statutes started in
Notice
that you must have a lot of money in order for a trust to last that long. You need a big honking trust to be able to
continue to pay the trustee over a really, really long period of time.
1. “Oswald to
a. Classify the interests:
b. Apply the Rules: There is no
Rule Against Perpetuities problem.
However, the Rule in Shelley’s Case applies. In one instrument,
c. Reclassify:
2. “Oswald to Andres for life, then to Boswell
and his heirs, but if Andres dies without children, to Chambers and her heirs.”
a. Classify the interests:
Andres gets a life estate. Boswell gets a
vested remainder subject to divestment (or subject to total divestment or
subject to a condition subsequent or subject to an executory limitation). Chambers gets an executory interest in fee
simple absolute.
b. Apply the Rules: It doesn’t
appear that there are any problems with any of the rules.
3. “Oswald to Annie and the
heirs of her body, then to Bob and his heirs.”
a. Classify the interests: Annie
has a fee tail and Bob has a vested remainder in fee simple absolute. (Note that a fee tail is not a vested fee simple.)
b. Apply the Rules: Does the fee
tail still exist? If not, how would we
recharacterize? In
4. “Oswald to Arthur for life,
then to Arthur’s children for life.”
a. Classify the interests:
Arthur has a life estate and Arthur’s children have either a contingent
remainder for life (if there are no children now) or a vested remainder subject
to open for life (if there’s already at least one child). Oswald has a reversion in fee simple absolute.
b. Apply the Rules: No
problems!
5. “Oswald to
a. Classify the interests:
Oswald has a fee simple subject to an executory limitation, and
b. Apply the Rules: No
problems!