Rule Against Perpetuities

Common Law Rule
"The rule against perpetuities developed through a series of English cases beginning in 1682 and spanning about 150 years. See 10 Richard R. Powell, Powell on Real Property § 71.02 (Michael Allan Wolf ed.2007). At one time, the common law rule was a part of the law of nearly every jurisdiction in the United States. Id. § 71.03. By the end of the twentieth century, however, only a handful of jurisdictions still followed it. Id. Today, perpetuities law varies from state to state. See Lynn Foster, Fifty-One Flowers: Post-Perpetuities War Law and Arkansas's Adoption of USRAP, 29 U. Ark. Little Rock L.Rev. 411, 411-13 (2007); Frederick R. Schneider, A Rule Against Perpetuities for the Twenty-First Century, 41 Real Prop. Prob. & Tr. J. 743, 747-48 (2007). In Florida, the rule has had a rocky history. It was first adopted judicially, as part of the common law. It was later adopted legislatively, then replaced with a uniform rule, and now it has been legislatively abolished. To provide context for our discussion, we briefly discuss this history." Case::Old Port Cove Holdings, Inc. v. Old Port Cove Condo. Ass'n One, Inc., 986 So.2d 1279 (Fla. 2008).

Statutory Rule
The rule against perpetuities has been adopted by statute, amended, and later abrogated. The Legislature first codified the rule in 1977. The statutory rule provided:


 * STATEMENT OF THE RULE. — No interest in real or personal property is valid unless it must vest, if at all, not later than 21 years after one or more lives in being at the creation of the interest and any period of gestation involved. The lives measuring the permissible period of vesting must not be so numerous or designated in such a manner as to make proof of their end unreasonably difficult.

Ch. 77-23, § 1, Laws of Fla. (codified at § 689.22(1), Fla. Stat. (1979)). The statute exempted various interests, including "[o]ptions to purchase in gross or in a lease or preemptive rights in the nature of a right of first refusal," but limited them to forty years. Ch. 77-23, § 1, Laws of Fla. (codified at § 689.22(3)(a)(7) (1979)).[1]

In 1988, the Legislature "replac[ed] the existing statutory rule with the `Florida Uniform Statutory Rule Against Perpetuities.'" Ch. 88-40, Laws of Fla. It states the rule as follows:


 * (2) STATEMENT OF THE RULE.—
 * (a) A nonvested property interest in real or personal property is invalid unless:
 * 1. When the interest is created, it is certain to vest or terminate no later than 21 years after the death of an individual then alive; or
 * 2. The interest either vests or terminates within 90 years after its creation.

Id. § 1 (codified at § 689.225(2), Fla. Stat. (1989)). With eight exceptions, the statute excludes nonvested property interests and powers of appointment arising out of "a nondonative transfer." Id. (codified at § 689.225(5)(a), Fla. Stat. (1989)). The law also added, among other things, a provision through which interests created before October 1, 1988, that violate the rule against perpetuities could be reformed "in the manner that most closely approximates the transferor's manifested plan ... and is within the limits of the rule against perpetuities applicable when the nonvested property interest or power of appointment was created." Id. (codified at § 689.225(6)(c), Fla. Stat. (1989)).

In 2000, the Legislature added the following language to section 689.225(7): "This section is the sole expression of any rule against perpetuities or remoteness in vesting in this state. No common-law rule against perpetuities or remoteness in vesting shall exist with respect to any interest or power regardless of whether such interest or power is governed by this section." Ch. 2000-245, § 1, Laws of Fla. (codified at § 689.225(7), Fla. Stat. (2001)). The Fourth District relied primarily on this language to conclude that "[r]etroactive application could hardly have been stated more clearly." Old Port Cove, 954 So.2d at 745. Case::Old Port Cove Holdings, Inc. v. Old Port Cove Condo. Ass'n One, Inc., 986 So.2d 1279 (Fla. 2008).