Also known as: vested executory interests · executory interest
Written by attorneys · grounded in primary & secondary sources — see below
An executory interest classified as vested for purposes of the Rule Against Perpetuities because it is not subject to a condition precedent other than the natural termination of the prior estate. Such an interest complies with the Rule upon creation without further testing.
James conveyed one floor of his office building to Highland Protection by deed reciting an unrestricted fee simple. Highland Protection took possession and recorded covenants restricting use to insurance business. Claudia held an executory interest that would become possessory if James died without descendants. When James remained childless, Claudia's interest took priority over the fee and covenants created by Highland Protection.
Damon sold the basement studio of his mixed-use building to Peak Digital before any children were born. Peak Digital granted perpetual easements to influencers. Travis held an executory interest that would become possessory if Damon died without descendants. The easements remained subordinate to Travis's interest even after Damon later had a child.
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Dominic conveyed a mountaintop parcel to his grandson Casey by deed using fee simple language followed by a gift over if Casey and all descendants died. Casey later attempted to sell the parcel to another carrier. Ridge Fiber held the future interest limited after the conditional estate. The carrier refused to close because the future interest remained enforceable against the parcel.
Zachary conveyed her homestead to her son Leo by deed using fee simple language followed by a gift over if Leo died without issue. Leo negotiated a permanent access easement with Star Resource. Bay Eco held the future interest limited after the conditional estate. Star Resource's easement remained subordinate to Bay Eco's interest.
James held title to an office building in fee simple conditional. He conveyed one floor to Highland Protection by unrestricted deed. His sister Claudia held an executory interest that would become possessory if James died without descendants. James's surviving spouse's dower interest remained subordinate to Claudia's executory interest.
A vested executory interest is classified as vested upon creation because it is not subject to a condition precedent other than the natural termination of the prior estate. This classification means the interest automatically satisfies the Rule without additional analysis of lives in being or periods of years.
Supporting sources
A vested executory interest limited after a fee simple conditional remains superior to any interests the conditional owner creates by inter vivos conveyance. All such created interests are subordinate to the executory interest even if the deed recites an unrestricted fee simple.
The birth of issue does not destroy or upgrade the vested executory interest. Interests created before the birth remain subordinate because the rule fixes their status at the time of creation relative to the executory interest that follows the conditional fee.