In 1970, CA repealed CCP § 715.8, AND amended CA Const. to repeal constitutional provision re: instead, enact RAP statutorily RAP… in CA has 3 components must comply w/ USRAP one… Common law RAP 90-yr. wait-and-see Equitable approximation Best for draft document that complies w/ common law RAP… BUT, if NOT complying w/ may still wait common law RAP, … upwards of 90 yrs. for interest to OR void (during which time vest title is screwed up, so NO title insurance obtainable)… OR, if go to court to seek reformation of document … “necessary”, covered under but Potential Posthumous Birth Disregarded USRAP/CA, NOT common law RAP B dies leaving to B for life, then to children that reach “A B’s 21”… pregnant wife, who gives birth several months later (such that child will B’s turn 21 beyond RAP period)… Under adds to common law RAP, gestation rule gestation period B’s thereby making life in being, CR valid… BUT, under the fact that child was born after … USRAP/CA, B’s death ignored, thereby making valid (same outcome, CR B’s different method) now, assume that sperm was frozen, and B has child well after … B’s B’s death… Under is void b/c child was NOT the common law RAP, CR B’s product of gestation period Under is valid USRAP/CA, CR RESTRAINTS ON ALIENATION Validity of restaint at common law depends on… Type of estate being restrained… (being potentially infinite) is most likely to be protected from a Fee restraint on alienability… AND, w/ (landlord/tenant), any restraint is estate for yrs. … OK… whereas, falls in b/w (likely for restraint to be justified) life estate … Type of restraint… any attempt to transfer is void Disabling
In 1970, CA repealed CCP § 715.8, AND amended CA Const. to repeal constitutional provision re: RAP… instead, enact RAP statutorily USRAP in CA has 3 components must comply w/ one… Common law RAP 90-yr. wait-and-see Equitable approximation Best for draft document that complies w/ common law RAP… … BUT, if NOT complying w/ common law RAP, may still wait upwards of 90 yrs. for interest to vest OR void (during which time title is screwed up, so NO title insurance obtainable)… … OR, if “necessary”, go to court to seek reformation of document Potential Posthumous Birth Disregarded covered under USRAP/CA, but NOT common law RAP “A to B for life, then to B’s children that reach 21”… B dies leaving pregnant wife, who gives birth several months later (such that B’s child will turn 21 beyond RAP period)… Under common law RAP, gestation rule adds gestation period to B’s life in being, thereby making CR valid… … BUT, under USRAP/CA, the fact that B’s child was born after B’s death ignored, thereby making CR valid (same outcome, different method) … now, assume that B’s sperm was frozen, and B has child well after B’s death… Under common law RAP, CR is void b/c B’s child was NOT the product of gestation period Under USRAP/CA, CR is valid RESTRAINTS ON ALIENATION Validity of restaint at common law depends on… Type of estate being restrained… Fee (being potentially infinite) is most likely to be protected from a restraint on alienability… … AND, w/ estate for yrs. (landlord/tenant), any restraint is OK… … whereas, life estate falls in b/w (likely for restraint to be justified) Type of restraint… Disabling any attempt to transfer is void