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StevenW3
(Oklahoma)
Posts:64
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| 06/15/2008 3:31 PM |
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"If any provision of this Declaration would be unlawful, void, or voidable by reason of applicability of the rule against perpetuities, such provision shall expire twenty-one (21) years after the death of the last survivor of the now living descendants of the youngest living President of the United States having a descendant. Nothing in this section shall be construed to permit termination of any easement, covenant, restriction, or obligation created in this Declaration without the consent of the holder of such easement."
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SusanW1
(Michigan)
Posts:2116
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| 06/15/2008 6:02 PM |
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If you Google this paragraph, you get many sites with info. Looks like some kind of land trust terms.
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MaryA1
(Arizona)
Posts:2156
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| 06/16/2008 10:50 AM |
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Steven,
It's called the "rule of perpetuity" and is probably in the majority of HOA CCRs. Mine says essentially the same thing except that "the Pres of the U.S." is replaced by "Ronald Reagan". In the CCRs of my former assn it was "the issue of the board who are living at the time".
Here's a definition: "Rule that no contingent interest is good unless it vests not later than 21 years after the death of a person living at the time the interest is created. It prevents a person from keeping property in his family for multiple generations. Under the rule, a future interest must vest within a certain period of time. This period is limited to the duration of a life or lives in being (the "measuring lives") at the time the interest in the property is transferred, plus twenty-one years. Under the common-law rule, if there is a possibility that the future interest will not vest until after the expiration of the life or lives in being, plus twenty-one years, the interest is void. The determination is made at the time the future interest is created. In order to avoid the harshness of this rule, some states have enacted statutes providing that the validity of the interest is to be decided at the time the interest actually does vest, rather than at the time it is created. Under these statutes the courts "wait and see" if the interest does in fact vest within the period of the rule. If it does vest within the period of the life or lives in being plus twenty-one years, then the interest is valid. Under other more limited "wait and see" statutes, a decision is made at the time of the death of the life tenant or tenants. These statutes are also called second look statutes."
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JohnK3
(Pennsylvania)
Posts:437
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| 06/16/2008 11:20 AM |
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Mary,
Actually, it is the Rule AGAINST Perpetuities, hence the life or lives in being + 21 years. It was invented to prevent trusts from running forever and favoring eventual distribution of the corpus of the trust. |
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MaryA1
(Arizona)
Posts:2156
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| 06/16/2008 4:21 PM |
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Posted By JohnK3 on 06/16/2008 11:20 AM
Mary,
Actually, it is the Rule AGAINST Perpetuities, hence the life or lives in being + 21 years. It was invented to prevent trusts from running forever and favoring eventual distribution of the corpus of the trust.
John,
So why, do you think, this is put into CCRs. CCRs (restrictive covenants) run with the land and are automatically passed on to the successor owners of the property. |
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JohnK3
(Pennsylvania)
Posts:437
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| 06/17/2008 8:28 AM |
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Mary,
I'd guess the language is for the reason stated within the text, that IF a provision of the CCRs somehow violates the RAP, the provision is amended to comply with the RAP. It's been a LONG time since my Ds Es & Ts course in second year! Just some boilerplate to cover the writer's posterior?
Say, for instance, there is a provision regarding a historic tree on the property that, in order to protect it, states the tree will be held for the benefit of the HOA as long as the HOA exists. That, on its face, probably violates the RAP, so the boilerplate would correct it and make it valid.
But as I said - a LONG time.
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MaryA1
(Arizona)
Posts:2156
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| 06/17/2008 4:40 PM |
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| Thx, John. There are a lot of legal concepts that I find hard to understand and this one is certainly on the list. Especially when I got to the "wait & see statutes", the "second look doctrine" and let's not forget the "fertile octogenarian", the "unborn widow" and a number of other concepts that Wikipedia described as "creations that live only in the minds of the lawyers." I've heard it said that engineers are a "different breed" but I think that also applies to lawyers. |
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JohnK3
(Pennsylvania)
Posts:437
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| 06/18/2008 9:07 AM |
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Mary,
I had to laugh when those Perpetuities buzz words started showing up in your post. My favorite is the "percocious toddler." But you are not alone. Ask any former law student, or attorney for that matter, to list the three most difficult concepts they had to (try to) master, and Perps will probably show up 90% of the time. Exceptions to the Hearsay Rule is another gem. But you can memorize the Hearsay stuff; Perps has to be memorized and then learned to be applied, an often times daunting task. But it (Perps) can be a very, very important item, esp. when huge $$$ estates/trusts are involved. Just a single lapse by the person(s) setting up a trust could shift tens or hundreds of millions of $$$ to unintended recipients, and away from the intended objects of largesse. Shoot, even in smaller estates/trusts. I know it's popular to razz lawyers, esp. when it comes to seeming minutia, but sometimes, as with guns, it's better to have one and not need it than need one and not have it. |
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BradP
(Kansas)
Posts:1742
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| 06/18/2008 9:19 AM |
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| Ours are a little different, ours run for a period of 35 years, then are extended for 10 year periods after that unless 75% of the lots sign a document abolishing the HOA. |
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