I’m reading a story where a parent left a piece of real estate (the family farm) to his two children, with the requirement that they own it jointly, and neither may attempt to partition it. If either does attempt to partition it, the other child gets the entire property.
Would this hold up? Can someone place restrictions like that on property after their death? I thought there was a law against that - the Rule against Perpetuities or something.
The story is set in a farming state in the USA, most likely Iowa. The exact quote is:
Note that the writer was a practicing attorney at the time he wrote this, and is normally proud of the fact that he gets details correct, so I was surprised to see this in there.
Okay… I am not a lawyer, and though I’m fascinated by the Rule against Perpetuities, I don’t understand all of its intricacies.
This definitely seems odd. Are the siblings enjoined against selling their “stake” in the property to someone else, or bequeathing it after they die? If so, are the new part-owners supposed to be bound by the no-partition provision?
Covenants can be added to deeds that would prevent them from partitioning it, my own property has such a restriction. I was told by a real estate lawyer that it could be broken also. I don’t see how an attempt to partition can lead to a default, but I’m not a lawyer.
If you ask me, the weak link of this story is the word “tried”. Just exactly what constitutes TRYING to partition it? If you talk to a lawyer and ask “Can I partition this property?” does asking that question, in and of itself, count as “trying”?
In 1901, James Hogg (former Governor of Texas) purchased a plantation–once run by slaves, then by convicts & finally turned into a ranch (with mostly African-American cowboys). It had been damaged by the 1900 Storm, so he probably got a bargain.
His will directed his children to hold on the place–and its mineral rights–for at least 15 years after his death. He died in 1906; oil was later discovered.
The fairly well-fixed Hogg children became exceedingly wealthy–and exceedingly generous philanthropists…
If the siblings agree to partition it, what happens if they act in tandem to do so? Even if that clause gets activated, there’s nothing to stop the “benefiting” sibling from partitioning the land as they please, right?
Are there facts you are leaving out? Where did you read this story? What state are you talking about? It sounds like a law school exam question.
I’m confused by the hypothetical. A and D both own the property jointly. A partition sale is a sale forced by a court when one joint owner wants to sell and the other owner or owners don’t want to sell. If A and D both asked about selling the property and both thought it was “bad news” that pursuing a partition sale could cause them to forfeit their interest in the property, then it seems both want to sell. Without other facts to suggest that they would somehow forfeit their property if they tried to sell, they should just jointly agree to sell – no partition sale necessary.
Isn’t the whole point of the Rule Against Perpetuities that stuff has to get settled within 21 years of the death of someone alive at the time?
Since this restriction could only ever kick in if one of those already-living children tries to partition it before dying, AFAICT it’s not a problem.
(The problem comes in when you write a restriction like, uh, “You shall have use of this land; and, when you die, your first-born shall have use of the land; and so on for that kid’s first-born, forever and ever – until and unless someone in that chain gets divorced; if that ever happens, the land immediately goes to my sister’s oldest direct descendant.” That might not happen for centuries! We’re not enforcing that!)
The clause doesn’t have anything to do with the story beyond explaining why the two of them continue to live and work on the farm together, even though they hate each other (more specifically, the brother and the sister’s husband hate each other). It’s a fictional story and there are no details beyond the sentences I quoted.
I presumed it meant that neither could sell their own interest in the property separately, or split the land down the middle and sell off their half, or even sell their own interest to the other sibling.
The will creates, and then grants property to, a legal entity consisting of D & A. In the creation of this legal entity a clause is placed on it’s existence that ejects any participant who attempts to partition the land.
I always thought things of this sort were unenforceable. Once property rights vest in a particular person, then it’s up to them and the terms of the will are void.
So for instance, it’s perfectly possible to have something in the will like “Bob gets the farm as long as he stands on one foot and clucks like a chicken at my funeral. If he does that he gets the farm.”
But it’s not possible to have something like “Bob gets the farm, but every year on the anniversary of my death he has to stand on one foot and cluck like a chicken. If he fails to do that, then he loses the farm and it goes to Alice instead.”
If they both wanted to sell… create a company (jointly held) and sell the entirety to that company. Then that company partitions the land and sells a share to each sibling.
Presumably, this is more like a hate-version of chicken. “I’m not going to sell, so I will wait until he gives in and I get the whole thing.” Nothing beats a good family feud.
OTOH, Fred could sell his half-interest in the farm to his wife, who is not bound by the will. Then she could have it partitioned. I suppose if the other side could prove this was just an elaborate ruse to partition the land by Fred himself, he would lose his rights. Similarly, as soon as one of the siblings died, their heir(s) could petition to partition?
I’m more of a tax guy, but I tend to doubt that will would hold up after the estate was closed and assets distributed.
However, it would be easy to put the property in a trust. A trust gives the decedent more control about how assets are managed, skipping probate altogether in most (all?) jurisdictions. The kids would not own the land directly; they’d merely be beneficiaries of the trust that owns the land. This would give you the situation you describe in a legally binding manner. If the book devoted two whole sentences to this part of the premise, it’s not surprising it didn’t delve into the details of the trust. To prevent a perpetuity, the trust would have to eventually distribute the land to someone, but it would have a long time to do that.
Strange way of arranging it, unless the father was trying to test the brothers’ suspicion of each other.
I mean, if the brothers were cooperative and trusting, they’d just walk in to the courthouse together and jointly file a deed (or whatever the legal real estate maneuver is) to split the property and give each other ownership in half. Who would possibly have standing to sue to stop it, and what remedy could they possibly receive?
I guess one of the brothers could afterwards sue the other one, saying “Really, I didn’t want to divide things; it was all his idea and he started it, so I should get the whole thing”. But it’s kind of hard to imagine a court agreeing with that unless there’s some unusual evidence.
It would depend on the specific language used in the conveyance to see exactly how any scenario would pan out. If the terms of a fee simple determinable fail to be met, then the fee returns to the grantor or his heirs.
Imagine a man who is a widower who dies with one living son (and no will or no other devises or bequests in his will). The man leaves his farm to his son, “so long as no alcohol is sold on the premises.” The son immediately opens a bar. The condition is met, and the fee automatically reverts to the grantor (Dad) and then immediately passes to his only heir (his son) who now takes in fee simple without the condition.
Without more, the OP’s conveyance seems to read:
O to A and B as joint tenants with the right of survivorship, so long as A or B does not attempt a partition, if so then to the other.
As others have said, a joint partition attempt would vest each other’s share in the other and defeat the intent that way.
If it read the same, but added “if both shall jointly attempt a partition, then to the First Baptist Church of Pleasantville” then the conveyance would be valid against both and their heirs forever, as the church is a “life in being” at the time and it does not violate RAP.
However, as mentioned, A and B may be able defeat this condition by a variety of legal maneuvers which would likely be challenged by First Baptist. Then we lawyers make some money.
I have always hated people who try to control land forever. The land is essentially timeless and every owner wants to enjoy it to his or her satisfaction. I am only here for my “three score and ten” and should not be permitted to make my wishes supersede the thousands of people who will come after me.