The Rule Against Perpetuities: The 21-Year Deadline

⚡ 10-Second Rule

A shaky future gift of land fails unless it must get settled, one way or the other, within 21 years of someone alive now.

🧒 ELI-10 Scene

Principal Okafor announces a prize: the school flagpole goes to "the first student ever to run a three-minute mile." Nobody has done it. Maybe a kid born fifty years from now will. Maybe no one ever will. That prize could dangle over the flagpole for centuries. Nobody could ever safely sell it or move it. The law hates promises that hover over property forever. So it sets a stopwatch. Look at everyone alive when the promise is made. The question must be answered within their lifetimes, plus 21 more years. If the promise might stay open longer than that, the law kills it today.

⚖️ Actual Rule

The classic common-law rule, in John Chipman Gray's formulation: "No interest is good unless it must vest, if at all, not later than twenty-one years after some life in being at the creation of the interest." Gray, The Rule Against Perpetuities § 201 (1886).

• Interests covered: contingent remainders, executory interests, vested remainders subject to open (class gifts), options to purchase held in gross, and — in many jurisdictions — rights of first refusal.
• Interests exempt: all interests retained by the grantor (reversions, possibilities of reverter, rights of entry), indefeasibly vested remainders, and remainders vested subject to complete divestment. Under the common-law exemption, a gift from one charity over to another charity also escapes the Rule — but a gift from a charity to a private person, or from a person to a charity, gets no special treatment.
• Validating-life analysis: the interest is valid if you can identify one person alive (or in gestation) at creation who proves the interest must vest or fail within that person's life plus 21 years. Test creation-date possibilities, not what actually happens; one imaginable late-vesting scenario voids the interest from the start.
• Class gifts — all-or-nothing: if the interest of any possible class member could vest too remotely, the entire class gift fails, subject to the rule of convenience, which closes a class when any member is entitled to possession.
• Classic traps: the fertile octogenarian (the law conclusively presumes any living person, at any age, can have more children) and the unborn widow (a gift following "A's widow" may fail, because A's eventual widow could be someone not yet born at creation).
• Reform doctrines (noted): many states soften the rule by wait-and-see (judge by actual events), the Uniform Statutory Rule Against Perpetuities (alternative 90-year vesting period), or cy pres (judicial reformation to approximate the grantor's intent). The bar's default remains the common-law rule unless the question says otherwise.

[NJ-VARIANT: flagged for future Eli Explains NJ Law module]

ELI-10 translation: find one person alive today who guarantees an answer within their life plus 21 years. No such person, no gift.

🔍 Ask These Questions

1. Is this an interest the Rule even covers — contingent remainder, executory interest, class gift, or option in gross? (The giver's own take-back interests are always safe.)
2. When was the interest created? (Start the stopwatch at the deed's delivery, or at the will-maker's death.)
3. Can you name a validating life? (One person alive now whose life plus 21 years must settle the question.)
4. Could any weird-but-possible event delay vesting past the deadline? (The law says an 80-year-old, like Grandma Ruth, might still have a baby.)
5. Is it a class gift where one member could vest too late? (If one late kid spoils it, every kid loses.)
6. Is it a gift from one charity to another charity? (Charity-to-charity handoffs skip the stopwatch entirely.)
7. Does a reform statute apply — wait-and-see, USRAP's 90 years, or cy pres? (Some states let the promise play out before killing it.)

⚠️ Bar Trap

Exam language: When an executory interest following a defeasible fee is void under the Rule, examiners test what remains after the void language is struck. Strike only the offending interest: "to A so long as no alcohol is sold, then to B" loses B's interest but keeps the durational limit, leaving A a fee simple determinable and the grantor a possibility of reverter. By contrast, "to A, but if alcohol is sold, to B" loses the entire "but if" clause with B's interest, leaving A a fee simple absolute.

ELI-10: Cross out only the broken gift, then reread what is left. Time words survive on their own, so the land can still snap back. A "but if" clause falls with the dead gift, and the first taker keeps everything.

🧪 Question

In 2010, Delia conveyed a vacant lot by deed "to Green Valley Community Church, so long as the land is used for church purposes, and then to my friend Nadia and her heirs." The jurisdiction follows the common-law Rule Against Perpetuities without statutory modification. The church currently uses the lot for services. Nadia and Delia are both alive.

Which of the following correctly states the ownership of the lot?

(A) The church holds a fee simple absolute, because the entire limitation is stricken. (B) The church holds a fee simple determinable, and Delia holds a possibility of reverter. (C) The church holds a fee simple subject to an executory limitation, because gifts involving a charity are exempt from the Rule. (D) The conveyance is wholly void, and Delia holds the lot in fee simple absolute.

Answer: (B). Nadia's executory interest could vest centuries from now — church use might cease long after every life in being plus 21 years — so it is void at creation. Striking it leaves "to the church so long as used for church purposes": a fee simple determinable, with a possibility of reverter arising in Delia, which is exempt from the Rule as a grantor-retained interest.

💡 Why the Wrong Answers Are Wrong

• (A) strikes too much; durational "so long as" language survives the void gift, so the church's estate remains determinable.
• (C) misstates the charity exemption, which requires a gift from one charity to another charity — Nadia is a private person.
• (D) voids the church's valid present estate, but the Rule kills only the offending future interest, never the whole conveyance.
• ELI-10: The misconception is treating the Rule like a bomb that destroys the whole deed. It is a scalpel that cuts out one bad gift.