(Almost) Escaping the Rule Against Perpetuities
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There are many things that strike fear in the hearts of law students preparing for the bar exam. The worst for me was worrying that I would get a question on the rule against perpetuities.
The rule against perpetuities is an arcane legal doctrine tracing back to 17th century English common law. We are told that it limits the ability to put long-lasting restrictions on land.
The meaning of the rule against perpetuities is as obscure as its origins. The phrase "lives in being plus twenty-one years” is commonly mentioned as if magically adding clarity. Improbable illustrations involving “fertile octogenarians” and “unborn widows” are offered for guidance. Kind of like stirring a tablespoon of mud into a cup of coffee.
The legal world divides into two camps: those who pretend they understand the doctrine and those who come right out and admit they never will. Tellingly, the California Supreme Court once held it that an attorney who drafted a will that violated the rule against perpetuities did not commit malpractice, terming the rule a “technicality-ridden legal nightmare” and a “dangerous instrumentality in the hands of most members of the bar.” Lucas v. Hamm, 56 Cal.2d 583, 15 Cal.Rptr. 821, 364 P.2d 685, 691 (1961).
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I sat for bar exams in three states (back before the days of reciprocity) and managed by luck of the draw to never pull a question on the rule against perpetuities. Then, by focusing my practice on litigation rather than trusts or real estate, I was able to stay even further away from this legal third rail.
Upon becoming a full-time mediator, I finally felt safe. The rule against perpetuities was just an uneasy memory, one of many fading law school insecurities. It was almost funny to look back on.
But then it happened. I was asked to mediate a land dispute between neighbors concerning a right of first refusal. The central issue was the validity of that first refusal under the rule against perpetuities. Suddenly, I was plunged back into reading the statutes, sifting through the case law and considering the more recent impact of the adoption of the Uniform Statutory Rule Against Perpetuities (USRAP).
USRAP, incidentally, was an attempt to make the rule against perpetuities more comprehensible by standardization and giving it an acronym. New Hampshire decided not to go this route, but other states like Maine have done so, hoping to provide guidance to the lost. The search parties are still out.
As I prepared for the mediation and tried to grasp what eluded me some forty years ago in law school, I thought I was beginning to figure this all out. I now realize that this was just wishful thinking.
The rule against perpetuities notwithstanding, the mediation went fine. The parties reached a common-sense resolution that involved discharging the problematic right of first refusal in exchange for easement rights and other concessions. Kind of like driving a wooden stake through the heart of a legal doctrine that kept more law students awake than caffeine ever could.
I think I’m going to sleep better, too.
This article originally appeared in the February 19, 2020 edition of NH Bar News. Reprinted with permission.
