How Long Can Property Be Controlled? Rethinking the Rule Against Perpetuity under the Transfer of Property Act, 1882

Abstract

How much control should a person have over property after transferring it? Can an owner decide not only who will receive property, but also how that property must be dealt with by generations who are not yet born? Property law gives an owner considerable freedom to arrange the transfer of property, but that freedom is subject to legal limits. One such limitation is the rule against perpetuity, principally contained in section 14 of the Transfer of Property Act, 1882 (‘TPA’), which restricts interests that are intended to take effect too remotely in the future.

The rule reflects a basic tension in property law. On one hand, a person should be able to make reasonable arrangements for the future of his or her property. On the other hand, future owners should not be permanently restricted by instructions imposed by someone from an earlier generation. Although the rule developed in a very different period of property law, the problem it addresses has not disappeared. It can still arise in wills, family settlements, trusts, gifts and transfers involving unborn beneficiaries.

This article argues that the rule against perpetuity continues to serve a useful purpose because it prevents property from being placed under excessively remote control. However, the rule should be applied to genuine proprietary interests rather than being stretched to cover every long-term arrangement connected with property. The article examines the statutory provisions, judicial decisions and practical concerns surrounding the doctrine and considers whether its nineteenth-century framework remains suitable for present-day property planning.