the distribution of land long—long—after death and even to tie changes in ownership to activities conducted (or not) on the land and/or the activities of descendants. In the United Kingdom, this strife was particularly acute given the concerns of the nobility about their ancestral realms and what their noble descendants might get up to long centuries later. Courts were soon asked to make law. In 1682, The Duke of Norfolk’s Case launched the Rule into the common law tradition.1
The Rule Against Perpetuities in Oil & Gas Law By: Christopher Kulander Professor of Law South Texas College of Law Houston “It was a dark and stormy night and no executory interest was good unless it had to become possessory, if at all, within 21 years following a life or lives in being at the creation of the interest.”
An executory interest is a future interest, held by a third person, that either cuts off another’s interest or begins after the natural termination of a preceding estate. Further, a springing executory interest is one that operates to end an interest left in the transferor. The Duke of Norfolk’s Case established that executory interests are only valid and enforceable if they were sure to become possessory within a certain span of years.2 Instead of just ruling that the executory interests must be reduced to possession within a set time—say, forty years—the court in Norfolk (and courts after it) made the mandated time to take possession variable. 3 Specifically, the point in the future at which possession must have been achieved was set according to the lives of the people involved in the grant—the so-called “lives in being”—that law students and property lawyers have wished death upon over the years. The modern version of the Rule was not laid exactly down in Norfolk; later cases took the idea and refined it. Subsequent evolution of the Rule converged on a measure of years ascertained such that no interest passed muster under the Rule save those that must vest, if at all, within twenty-one years following a life or lives in being at the creation of the interest.
Did you just convulse a familiar fright? As long as possession of land has existed in any form, owners have worried about what will happen to their property—and on it—after they go to the grave. The question of what will immediately happen to the property of the recently deceased has been answered with elaborate schemes of disposition carved into the headstone of whatever legal scheme governs the law where the land in question lies. In this article, taken from my paper at TexasBarCLE’s “Oil & Gas Disputes” symposium back on January 10, 2020 here in Houston, let’s talk about the Rule Against Perpetuities—hereafter, “the Rule.” An Introduction The Duke of Earl Countries following the English system of estates accept that the owner of real property can decide what happens to his property at death, who might inherit it, and in what amount and division. While this idea was leavened over the centuries with laws requiring dispositions meant to protect spouses and children from being left poor by such decisions, acceptance that the plans of immediate disposition of real property according to the wishes of deceased owners were generally recognized by society. Difficulties and conflict arose, however, where the deceased tried to influence changes in 2
