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# Session 09 - Executory Interests, RAP, and Co-Tenancies

> Property class session 09 outline notes

## I. Executory Interests Review

### A. Shifting vs. Springing Executory Interests

**Shifting Executory Interest**

* Takes property from a **grantee** (another transferee)
* Divests a prior owner who received from the grantor
* Example: O to A for life, but if B gets an A+ in property, then to B
  * A has: Life estate subject to executory limitation
  * B has: Shifting executory interest in life

**Springing Executory Interest**

* Takes property from the **grantor**
* Springs from the grantor to take possession
* Example: O to A if A gets an A+ in property
  * O has: Fee simple subject to executory limitation
  * A has: Springing executory interest in FSA

**Key Distinction**: Who is being divested?

* Grantee → Shifting
* Grantor → Springing

### B. Executory Interests vs. Remainders

**Critical Rule for Remainders**

* Must be capable of becoming possessory upon the **natural expiration** of the prior estate

* Example: O to A for life, then to B if B gets an A+ in property
  * B has: **Contingent remainder** (waits for A's natural death)

* Example: O to A for life, but if B gets an A+ in property, then to B
  * B has: **Shifting executory interest** (can take before A's death)

**Language Matters**

* "then to B if..." → Remainder (takes after natural expiration)
* "but if B..." → Executory interest (can divest early)

### C. Executory Interests in Life Estates

* Executory interests can apply to **life estates**, not just fee simple estates
* Example: O to A for life, but if C gets an A+ in property, then to B for life, then to C for life
  * A has: Life estate subject to executory limitation
  * B has: Vested remainder subject to complete divestment in life
  * C has: Shifting executory interest in life

## II. Rule Against Perpetuities (RAP)

### A. The Basic Rule

**Magic Words for Exams**

* "Is it **possible** within 21 years to **vest or fail to vest**?"
* Write these words on every RAP analysis

**Purpose**

* Prevents interests from "floating around forever"
* Voids remote vesting that could last in perpetuity

### B. Common Law RAP Applications

**1. Executory Interests Following Defeasible Fees**

Example: O to A and her heirs so long as Blackacre is used for residential purposes, otherwise to B and his heirs

* A has: Fee simple subject to executory limitation
* B has: Executory interest in FSA
* **RAP Application**: VOID every single time
* **Result**: Once B's interest is voided, A has fee simple determinable; O retains possibility of reverter

**Critical Distinction**:

* O to A so long as Blackacre used for residential purposes, otherwise to B
  * After RAP voids B's interest → A has FSD; O has possibility of reverter

* O to A, but if Blackacre not used for residential purposes, then to B
  * After RAP voids B's interest → Entire conveyance after comma is void
  * **Result**: A has FSA (condition and executory interest both gone)

**2. Valid Executory Interests - Life Measurement**

Example: O to A for life, but if Blackacre used for anything other than residential purposes, then to B for life

* A has: Fee simple subject to executory limitation (lasting only for duration of B's life)
* B has: Executory interest in life
* O has: Reversion (since interest ends at B's death)
* **RAP Application**: VALID
* **Reasoning**: Interest will vest or fail to vest within B's own life (not floating forever)

### C. RAP and Class Gifts

**The Age 22+ Rule** - **ALWAYS VOID**

**Critical Test Rule**: Any condition requiring individuals to reach age **22 or more** → VOID under RAP

Example: O to A for life, then to B's children who reach the age of 22

* Current facts: B has two children (C=17, D=21)
* **RAP Analysis**: VOID
* **Reasoning**:
  * Measured at time of creation, not actual facts
  * Possible scenario: B could have another child; then everyone dies on plane crash
  * New child would take more than 21 years to reach age 22
  * Therefore, void for remote vesting

**Result**: If class gift is void, conveyance reads: O to A for life (period)

**The Age 21 Rule** - VALID

* If condition requires age 21 or less → VALID under RAP
* Can vest within 21 years of measuring life

**Special Rules**

*Rule of Convenience*

* If one member of class reaches required age before life tenant dies, may save entire class
* Minority view; jurisdiction-dependent

*All or Nothing Rule*

* Every single member must satisfy condition or entire class fails
* Common law/majority view

**Exam Tip**: When you see age 22+, immediately know it's void. Tattoo this to your brain.

### D. Modern RAP Approaches

**Common Law Approach**

* Apply traditional RAP analysis
* Measure at time of creation
* Lives in being plus 21 years

**Uniform Statutory RAP (U.S. RAP) - Modern/iPhone Law**

Three-step analysis:

1. **First**: Apply common law rule
   * If valid under common law → Done!
2. **Second**: If fails common law, apply "wait and see" approach
   * Wait 21 years and see if interest vests
3. **Third**: Wait 90 years
   * See if interest vests within 90 years

**Note**: Different jurisdictions have different wait-and-see periods, but 90 years is the uniform rule

### E. RAP Exceptions

**Charity to Charity Exception**

* RAP does **not apply** to conveyances from charity to charity
* Example: Red Cross to Salvation Army → Valid, no RAP analysis
* **DOES NOT apply** to private person to charity
* Must be charity → charity

## III. Interaction with Future Interests Doctrines

### A. Rule in Shelley's Case

**The Rule**: When one instrument creates:

1. Life estate in A, AND
2. Remainder in A's heirs (or heirs of A's body)
3. Both legal or both equitable

**Result**: The two estates merge → A gets FSA

Example: O to A so long as Blackacre used for residential purposes, otherwise to B for life, then to B's heirs

* Initially: A has FSSEL; B has executory interest in life; B's heirs have contingent remainder in FSA
* **Apply Shelley's Case**: B's life estate + B's heirs' remainder merge → B has executory interest in FSA
* **Apply RAP**: B's executory interest in FSA is VOID
* **Final Result**: A has fee simple determinable; O has possibility of reverter

**Modern Status**

* Abolished in overwhelming majority of states
* Still valid in very small minority
* **Exam Approach**: Even if iPhone law/modern fact pattern, still discuss if it appears

### B. Doctrine of Worthier Title

**The Rule**: When instrument conveys:

* Life estate to grantee, AND
* Remainder to grantor's heirs

**Result**: Language creating remainder in grantor's heirs is void

* Reads as: O to A for life (period)
* O automatically has reversion

**Modern Status**

* Abolished in California, Illinois, Massachusetts, Minnesota, New York, North Carolina, Texas, and others
* **Exam Approach**: Still discuss if it appears, even in modern jurisdictions

### C. Destructibility of Contingent Remainders

**Common Law Rule**

* If contingent remainder does not vest by the time the prior estate ends → It destructs (destroyed)
* Example: O to A for life, then to B if B gets an A+ in property
  * If A dies before B gets A+, at common law B's interest is destroyed
  * Goes back to O (reversion)
  * B's interest typically converts to springing executory interest

**Modern/iPhone Law**

* Contingent remainders are generally **not destructible**
* Check jurisdiction

## IV. Co-Tenancies (Introduction)

### A. When Co-Tenancy Issues Arise

**Trigger Language**: "O conveys Blackacre to A and B"

* Two or more people have simultaneous interests in property
* Need to determine what type of co-tenancy

### B. Three Types of Co-Tenancies

1. **Tenancy in Common** (most common, default)
2. **Joint Tenancy** (tested heavily)
3. **Tenancy by the Entirety** (less common, but fair game)

### C. Joint Tenancy - Basic Principles

**Right of Survivorship**

* Last remaining survivor gets 100% fee simple absolute
* While alive: Each has separate but undivided interest
* Example: Three siblings own property 1/3 each
  * One dies → Two survivors now own 50% each
  * Second dies → Last survivor owns 100%

**Undivided Interest**

* Cannot divide property physically ("you get that third of the toilet")
* Each has equal right to possess and enjoy entire property
* If property sold, proceeds divided proportionally

**Critical Rule: Wills Are Meaningless**

* Joint tenant cannot devise their interest by will
* If you don't survive longest, you have **no interest** to convey at death
* Will language leaving joint tenancy interest = "squiggly lines on paper"
* Interest automatically passes to surviving joint tenants

**Litigation Example**

* Two brothers held land in joint tenancy
* Both killed by train simultaneously
* Issue: Who was last survivor?
* Evidence: One had blood squirting from neck (heart still beating)
* Held: Person with beating heart survived longer → their heirs take 100%

### D. Creating Joint Tenancy - Common Law

**Four Unities Required** (Time, Title, Interest, Possession)

1. **Time**: Interests must vest at same time
2. **Title**: Must take through same instrument (same deed/will)
3. **Interest**: Must have same type of estate (both FSA, or both life estates, etc.)
4. **Possession**: Equal right of possession and enjoyment

**If any unity missing → No joint tenancy created**

**Straw Person Requirement**

* Common law: If you already own property, cannot simply add another person as joint tenant
* Reason: Violates time and title unities
* **Procedure**:
  1. Convey property to straw person (often attorney) in FSA
  2. Straw person re-conveys to you and new person as joint tenants
  3. Now all four unities satisfied

### E. Creating Joint Tenancy - Modern Law

**Modern Approach**

* No longer requires four unities or straw person
* Only requires **specific language** showing intent to create joint tenancy
* Magic words: "Joint tenants with right of survivorship"
* Must demonstrate grantor's clear intent

**Analysis Approach**

* Common law fact pattern → Discuss all four unities separately
* Modern fact pattern → Focus on grantor's intent and specific language

## V. Key Exam Tips

### RAP Analysis Framework

1. Identify future interests subject to RAP (executory interests, contingent remainders, vested remainders subject to open)
2. Ask: Is it **possible** this could vest more than 21 years after relevant lives in being?
3. Use magic words: "possible," "21 years," "vest or fail to vest"
4. Special rules:
   * Age 22+ = VOID (always)
   * Age 21 or less = VALID
   * Life measurement = Usually VALID
   * Executory interest following defeasible fee = VOID (usually)

### Future Interests Checklist

1. Classify all interests first
2. Check for Shelley's Case (life estate + remainder in A's heirs)
3. Check for Worthier Title (life estate + remainder in O's heirs)
4. Apply RAP to appropriate interests
5. Determine what happens after RAP voids interests
6. State final classification of all interests

### Co-Tenancy Analysis

1. Identify trigger (multiple grantees)
2. Determine type of co-tenancy
3. Common law vs. modern jurisdiction?
4. If joint tenancy, check four unities (common law) or intent (modern)
5. Consider severance, adverse possession, contribution issues (to be covered)

## VI. Important Casebook References

* **Page 322**: Chart of future interests (grantor vs. grantee interests)
* **Page 327-328**: Examples of remainders and class gifts
* **Page 334**: Executory interests; destructibility of contingent remainders
* **Page 351-354**: Rule in Shelley's Case; Doctrine of Worthier Title
* **Page 355-390**: Rule Against Perpetuities (extensive examples)
* **Page 362-363**: RAP applied to class gifts; Rule of Convenience
* **Page 374-382**: Wait-and-see approach; U.S. RAP
* **Page 395-396**: Co-tenancies; four unities

**Review Problems**: Page 341 (answers in Appendix B, page 1177)