Disney, DeSantis, and The Sound of Lawyers Laughing, Perpetually

No interest in land is good unless it must vest, if at all, not later than twenty-one years after some life in being at the creation of the interest.

That sound you hear could be one of a few things: a chuckle from older attorneys, a groan from younger attorneys and/or law students, or a chorus of “huh?” from non-attorneys.

This is the Rule Against Perpetuities, a legal rule rarely seen outside of exam questions but indelibly etched into the brains of anyone who has ever been a 1L, unless they have wiped it from their minds in an effort at self-protection.

It’s also currently trending on Twitter, which makes me giggle.

Here’s a short ‘splainer on what the Rule means, before I get into why it has been resurrected as tweet fodder.

The Rule Against Perpetuities is intended to prevent control of land from beyond the grave. You have to understand the legal meanings of “vest”, “creation of the interest”, and “life in being.” The interest is created, for example, when a valid will is created leaving land to some person. That person now has an interest. Of course, that can change if a will is rescinded or something, but for purposes of the R.A.P. we’ll leave it at that. In order for that interest to be valid, it must “vest” – meaning, in simple terms, the person takes possession, i.e., the bequeather dies – no later than 21 years after the death of a person who is living (a life in being) when the will is written.  The life in being can be literally anyone. Remember that for later.

It’s complicated. It’s hard for me to even think up a clear scenario to demonstrate the Rule, so I’ll steal this one from Thomson Reuters:

A conveys Blackacre to B and her heirs as long as tobacco is never grown on the property. But if tobacco is ever grown on the property, then to C and his heirs.

C’s property interest violates the RAP. True, it’s possible that tobacco may be grown on Blackacre only six months after the interest was created. Remember, though, that the RAP doesn’t care whether it’s possible that an interest could vest within the time limits.It cares whether an interest will vest within the time limit for a certainty.

It’s possible that tobacco could be grown on Blackacre in 700 years. Or never. Therefore, we do not know for a certainty that the interest will vest 21 years after some life in being (here, a life in being could be B, but it also could be any random person alive at the time of the conveyance). And that’s why C’s interest is not allowable under the RAP.

It’s hard to wrap one’s mind around it, which is why it is the bane of the existence for law students everywhere. I had to learn it because I took Dean Fisher’s required property class and had no choice. But it’s an old common law rule, not in place everywhere and, thankfully, it’s not one that most lawyers have to grapple with in their practice. And don’t get me started on the fertile octogenarian.

So, why is this little slice of legal esoteria having a moment?

Because of some creative lawyering on behalf of the House of Mouse down in Florida. Recall last year when Gov. Ron DeSantis decided to punish Disney’s apparently too-woke stances by terminating the agreements which gave the company control over the “Reedy Creek Improvement Area” in which the parks are located, giving control to his hand-picked board instead.  But before the new board could take over, the company and the existing board entered into new agreements which favored the company and helped it keep its control of the land around its parks.

The effective term of the agreement? From now into perpetuity. And just in case that “in perpetuity” part is deemed invalid, then “until 21 years after the death of the last survivor of the descendants of King Charles III, King of England living as of the date of this declaration.” Remember how I said the “life in being” could be anyone? The youngest of these “lives in being” is 16 month old Lilibet, daughter of Harry and Megan. Only 21 years after she, her toddler brother Archie, cousins George, Charlotte and Louis, her dad, and her Uncle Will have passed away does the agreement terminate, at the earliest (assuming the “in perpetuity” clause is not valid.) Notice that it only applies to descendants now living; why not all future descendants, since William and Harry remain capable of having more children? Say it with me: “Because that would violate the Rule Against Perpetuities.”

It’s unclear to me what ability the new board will have to rescind or break this agreement, though they have already vowed to try. But it strikes me as amusing that the DeSantis folks allowed this to happen; the new agreement was “discussed and approved in open, noticed public forums,” per a statement by Disney. After all the blustering about taking on Disney, it appears DeSantis quit paying attention, as his new board appears blindsided by the agreement.

Anyway, we’ll see how it all plays out. In the meantime, you are all now a little smarter than you were 3 minutes ago, or, if nothing else, in on the joke.