THE OPTION TO PURCHASE THE CONDOMINIUM UNIT WHEN IT BECAME VACANT DID NOT VIOLATE THE RULE AGAINST PERPETUITIES; ALTHOUGH THE TENANT IN THE UNIT WAS NOT NAMED, REFERENCE TO THE TENANCY WAS SUFFICIENT TO SUPPLY A “LIFE IN BEING” (FIRST DEPT).

The First Department, reversing Supreme Court, determined the contract giving plaintiff the option to purchase a condominium unit when the unit became vacant did not violate the rule against perpetuities (Estates, Powers and Trusts Law [EPTL] 9-1.1):

The court’s determination that there was no relevant life in being specifically named in the option, and therefore, the option was required to vest [*2]within 21 years, is too rigid an application of the rule. Rather, “[i]t is sufficient if a plain implication arises that a certain class or number of lives mentioned or referred to are selected for a limitation of the gift or trust” (61 Am Jur 2d, Perpetuities, Etc. § 16; see also Fitchie v Brown, 211 US 321, 333 [1908]).

Here, the … rider expressly stated:

“As Seller is unable to deliver vacant possession of Unit 5SR at the closing hereof, the Purchaser shall only purchase Unit 5SF . . . and the Purchaser shall have the option to purchase Unit 5SR at the time the Seller shall be able to deliver vacant possession thereof on all of the same terms and conditions as contained herein . . .”

Although the tenant is not expressly named in the option, the language of the option expressly makes the termination of his tenancy the relevant date upon which the option can be exercised … . Therefore, the court should not have determined that the reference to the tenant is too indefinite to serve as the relevant life in being. In addition, the interpretative canon set forth in EPTL 9-1.3(b), under which it is “presumed that the creator intended the estate to be valid,” applies. Protetch v Jocar Realty Co., Inc., 2024 NY Slip Op 05317, First Dept 10-29-24

Practice Point: This decision includes a rare discussion of the how the rule against perpetuities should be interpreted and applied.