Rule Against Perpetuities (RAP)

The Rule Against Perpetuities (RAP) is a legal doctrine that limits certain types of future property rights to prevent long-term “dead-hand control” and keep property freely transferable.

South Carolina’s RAP laws were humming along for nearly four decades without any significant changes until just this last year. Those changes:

1. South Carolina extended the “wait-and-see” vesting period for nonvested property interests and powers of appointment from 90 years to 360 years in May 2025. This change mainly affects high-net-worth families and individuals engaged in long-term estate planning. Read more about this here.
2. The Supreme Court of South Carolina ruled in January 2026 that future property interests arising from nondonative commercial transfers are not subject to any vesting timeframe under state law. This decision affects businesses and parties entering into commercial property agreements involving certain types of future property rights.

The supreme court’s ruling in the Spring Valley Interests, LLC v The Best for Last, LLC (2026) (read the decision here) is important because it affirms the way attorneys and business professionals have long interpreted the law  – i.e., that the RAP does not apply to nondonative commercial transactions in South Carolina.

That’s the TL;DR summary of the situation, and it might be all you need to know. But if you are ever involved in complex commercial real estate transactions or leasing contracts, or any other agreements involving future property rights, it’s worth reading on for a deeper look at the history of the RAP in South Carolina and the court’s reasoning in the recent Spring Valley Interests decision, and what it means for you going forward.

Basics of RAP: Curbing “Dead-Hand Control”

The Rule Against Perpetuities came to the U.S. as part of the common law after originating in 17^th-Century England. The original intent was to help keep land freely marketable and transferable by preventing a property owner from directing what should happen to his property long after his death through a will or trust.

Without the RAP, a property owner could tie up the land for generations through so-called “dead-hand control,” strengthening the family dynasty, shielding it from creditors and certain taxes, and adversely affecting the local economy.

With the RAP, a nonvested future property interest or power of appointment must vest or terminate within a certain time. This prevents land (or other asset subject to the RAP) from being perpetually tied up and makes it easier to market and transfer.

The Changing Time Frame Under the RAP

This background is germane to the supreme court’s reasoning in Spring Valley.

“Life in Being” + 21 Years

The original common law RAP (CLRAP) limits the period of vesting to “a life in being plus 21 years.” Any nonvested interest must be vested by the time “a life in being” (measured by the life of an individual alive when the will or trust goes into effect) ends plus an extra 21 years. Here’s the twist: A future interest that could, theoretically not vest within that period of time is automatically void at the time of its creation under the common law RAP.

Over the years, many found that “a life in being plus 21 years” was too restrictive and created too much uncertainty, leading to arguments over what, hypothetically, could cause a property interest not to vest within that time. (See: “Fertile Octogenarian” and “Unborn Widow” legal fictions.)

The solution: New laws.

90-Year “Wait-and-See” Period, then 360

In 1986, a model law called the Uniform Statutory Rule Against Perpetuities (USRAP) was drafted which made two big changes. First, the timeline was changed from the much-debated “life in being plus 21 years” to a straightforward 90 years. Second, it made the 90 years a “wait-and-see” period, meaning that a future nonvested interest would only be void if still not vested after 90 years, rather than being void from the start.

South Carolina, like many other states, adopted a version of the USRAP. In 1987, SC enacted the SCUSRAP which supersedes the common law rule against perpetuities; see SC Code § 27-6-10 to § 27-6-80. From 1987 to May 2025, the “wait-and-see” period for vesting was 90 years, as it is in the model USRAP law. In May 2025, that period was extended to 360 years.

How does the RAP Apply to Commercial Property Interests?

So far, this discussion has only considered property rights in the context of individuals and families, not commercial property rights. Does the RAP apply to similar commercial property rights in South Carolina as well?

That’s what the Spring Valley Interests decision ultimately clarified.

The rule against perpetuities has always applied to donative transfers, like those made through wills and trusts, which are made voluntarily without expectation of payment or other consideration.

The RAP may or may not apply to nondonative transfers, as in commercial and business transactions, which are made with the expectation of payment or other consideration. It depends on state law.

In South Carolina, the SCUSRAP does not apply to nonvested property interests arising out of nondonative transfers, as that’s one of the exceptions explicitly listed in SC Code § 27-6-50. Accordingly, attorneys and business professionals have conducted business believing the RAP did not apply to nondonative transfers.

Then this case came before the courts to challenge this interpretation.

Spring Valley Interests, LLC v. The Best for Last, LLC Background

In 2017, White Interests Limited Partnership (White) entered into a loan agreement with The Best for Last, LLC (Best). White loaned Best $800,000 to purchase property (Property). In the loan agreement, Best granted White a freely assignable and “perpetual” option (Option) to purchase a 74.25% undivided co-tenancy interest in the Property for a fixed price of $800,000.

In 2019, White informed Best of its intention to exercise the purchase Option. White then assigned the Option to Spring Valley Interests, LLC (Spring Valley). Best and Spring Valley almost reached an agreement but ultimately couldn’t, as Best did not want to reimburse Spring Valley for legal fees.

Legal action followed. Spring Valley sued Best for specific performance of the Option. One of Best’s counterclaims sought a declaration that the Option was void because it violated the SCUSRAP and the CLRAP.

The circuit court found in favor of Best. It reasoned that since the nonvested property rights in question arose out of a nondonative transfer, the SCUSRAP did not apply – but the common law RAP did. Therefore, the “perpetual” Option was void because it violated the strict “life in being plus 21 years” vesting timeline test of the CLRAP. The South Carolina Court of Appeals affirmed the circuit court’s decision.

The decision was appealed.

The Supreme Court’s Reasoning in Spring Valley Interests

Did the appeals court err in determining the common law RAP applies to nondonative transfers in South Carolina?

Yes, says the SC Supreme Court. Its reasoning:

Plain reading of the statute

SC Code § 27-6-50(1) plainly states that the SCUSRAP does not apply to nonvested property interests arising out of nondonative transfers. Additionally, § 27-6-80 states “This chapter supersedes the common law rule against perpetuities.”

The circuit court and the appeals court “resurrected” the common law rule, “breathing life back into the CLRAP,” in the words of the supreme court. However, a plain reading of the statute does not support this interpretation; rather, the wording makes it clear that the common law RAP was no longer applicable in any scenario once replaced.

Intention of the SC General Assembly

Best argued that the South Carolina General Assembly did not intend for the SCUSRAP to abolish the common law RAP entirely but intended for it to apply to property interests excluded by the SCUSRAP. Here, the supreme court looks at the title of the 1987 act, which states the intention “to abolish the common law rule against perpetuities and replace it with a statutory rule…”

The argument that the General Assembly intended for the common law RAP to apply to any property rights is not supported.

Comments on the original USRAP

Additionally, the supreme court looked at comments made by the drafters of the USRAP (on which the SCUSRAP was based), the National Conference of Commissioners on Uniform State Laws (now called the Uniform Law Commission). The supreme court quotes the following excerpts: “A nonvested property interest, power of appointment, or other arrangement excluded from the Statutory Rule by this section is not subject to any rule against perpetuities, statutory or otherwise.” … “The rationale for this exclusion is that the Rule Against Perpetuities is a wholly inappropriate instrument of social policy to use as a control over such arrangements. The period of the rule—a life in being plus 21 years—is not suitable for nondonative transfers…” (Emphasis added by the court.)

Some states have “plugged in” this gap by creating statutes that address property rights related to nondonative transfers and other exceptions in the USRAP, but South Carolina is not one of them. In its opinion, the supreme court says, “These comments speak for themselves and support only the conclusion that the Option is not subject to any rule against perpetuities.”

The case was reversed and remanded.

The Takeaway: Think Carefully Before Signing Away Future Interests

The SC Supreme Court’s confirmation of how the statute should be interpreted and applied could be seen as extreme, and there is always the possibility that South Carolina legislators could amend the law to address it.

But it’s likely this will stick, as it is in line with the trend towards less restrictive RAP laws on both commercial and private property. Dozens of states already do not impose the RAP on commercial, nondonative transfers, and as of January 2026, South Carolina is officially on that list, too.

Either way, if you are a party to commercial agreements in South Carolina that involve future nonvested property interests, act as if the RAP does not and will not apply, and think carefully before signing anything. Such future interests can be an encumbrance on a property that cloud a title and severely diminish its marketability and transferability.

Call Gem McDowell for Help with Contracts and Commercial Real Estate Transactions in South Carolina

Know what you are agreeing to when you sign an agreement. There can be damaging real-world ramifications stemming from an innocuous provision in a contract, such as a perpetual option for a party to purchase property at a fixed price.

Speak with business attorney Gem McDowell for strategic legal advice on drafting and signing contracts, commercial real estate transactions, and more. Gem has years of experience helping business professionals protect their business interests and handling high-value commercial real estate transactions in South Carolina. Contact Gem and his team at the Gem McDowell Law Group, with offices in Myrtle Beach and Mt. Pleasant, SC today by calling 843-284-1021.