In Uncategorized on 07/23/2021 at 17:49

On a late autumn morning nearly sixty years ago, on The Hill Far Above, I first became acquainted with another of England’s gifts to our legal system, the rule hereinabove first cited at the head hereof, which required something to happen within lives in being plus twenty-one (count ’em, twenty-one) years. I knew what that something was some three-and-a-half years later, when I took the Bar examination.

Today, I’ll be dipped if I know, and my alma mater’s Legal Information Institute provides corroboration: “Because the meaning of this rule is virtually impossible to decipher, many states have modified it, and some have abolished it altogether.”

When it comes to conservation easements, I’m sure Judge Holmes is in favor of enacting the Rule Against Perpetuities. So am I. But Judge James S. (“Big Jim”) Halpern has confounded me.

See my blogpost “Es Ist Ein Ganzes Meer,” 4/27/21; Judge Big Jim refers to the order therein described hereinbelow. Then see 901 South Broadway Limited Partnership, Standard Development, LLC, Tax Matters Partner, Docket No. 14179-17, filed 7/23/21.

Once again we’re back with the “very contestable readings of what it means for an easement to be perpetual.”

While admitting that the valuation issue is not susceptible of summary J (in fact, the 901s want to put in even more expert witnesses than they had specified heretofore; see Order, at p, 5, footnote 5), Judge Big Jim is citing Palmolive, and suggesting that judicial expediency might be best solved with the perpetuity gambit.

“The Court bears a responsibility to the public and to the parties who appear before it to manage its proceedings efficiently. In our exercise of that responsibility, we have determined that the time and potential expense of trial may be unnecessary to our disposition of the case. The April 27 Order suggests the possibility of our deciding the case in respondent’s favor on the ground that the partnership’s contribution of the easement to the Conservancy does not satisfy section 170(h)(5)(A)’s perpetual protection requirement because, as stated in that order, ‘proceeds from the condemnation of the Building attributable to the easement could be used to satisfy indebtedness owed by the partnership’. If the partnership is not entitled to any deduction for its contribution of the easement because of a failure to satisfy the mortgage subordination requirement provided in section 1.170A-14(g)(2), Income Tax Regs., the easement’s value on the date of the contribution — the issue that we understand would be the trial’s principal focus — would be moot. Therefore, with this order, we are directing the parties to proceed in a manner that would allow the resolution of a potentially dispositive legal issue before any trial of the case.” Order, at pp. 5-6.

So let the 901s show cause why they shouldn’t be tossed for nonperpetuity, and let IRS further attempt to eviscerate whatever subordinations the 901s managed to winkle out of the three (count ’em, three) holders of the five (count ’em, five) mortgages on the property.

Word to the 901s: Please try “so remote as to be negligible.” Does Los Angeles County have the money to pay an eminent domain award, even assuming they could do a Kelo and flip the building to a developer? Their police chief says he hasn’t resources to enforce COVID masking orders.


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