Under the Rule Against Perpetuities, which item is commonly considered a potential interest that may be subject to the rule?

Under the Rule Against Perpetuities, which item is commonly considered a potential interest that may be subject to the rule?

• A. Contingent Remainder
• B. Executory Interest
• C. Option to Purchase Land Not Incident to a Lease
• D. Vested Remainder Subject to Open

Answer: (D)

The Rule Against Perpetuities focuses on whether a future interest might vest more than a life in being plus 21 years after its creation. A vested remainder that is subject to open is the items most likely to raise RAP concerns because, while it is currently vested in some members of a class, the class can enlarge as new members are born or identified. The exact beneficiaries and their shares aren’t fixed until the class closes, and that closing can occur long after the measuring life. So the vesting of the full remainder could be delayed beyond the 21-year window, making it a potential RAP issue. In contrast, a contingent remainder is by definition subject to a condition and typically falls squarely under RAP; an executory interest likewise operates by taking effect only upon the happening of a condition or event and is RAP subject; and an option to purchase land not incident to a lease creates a future interest whose exercise could vest beyond the period, also raising RAP concerns. The subtlety here is that the open class aspect of a vested remainder means there’s real potential for vesting to occur far in the future, which is why this item is commonly treated as a RAP candidate.

The Rule Against Perpetuities focuses on whether a future interest might vest more than a life in being plus 21 years after its creation. A vested remainder that is subject to open is the items most likely to raise RAP concerns because, while it is currently vested in some members of a class, the class can enlarge as new members are born or identified. The exact beneficiaries and their shares aren’t fixed until the class closes, and that closing can occur long after the measuring life. So the vesting of the full remainder could be delayed beyond the 21-year window, making it a potential RAP issue.

In contrast, a contingent remainder is by definition subject to a condition and typically falls squarely under RAP; an executory interest likewise operates by taking effect only upon the happening of a condition or event and is RAP subject; and an option to purchase land not incident to a lease creates a future interest whose exercise could vest beyond the period, also raising RAP concerns. The subtlety here is that the open class aspect of a vested remainder means there’s real potential for vesting to occur far in the future, which is why this item is commonly treated as a RAP candidate.