Monday, April 23, 2012

"The Descendants" and the Rule Against Perpetuities: Hooray for Aristocracy

In search of a relaxing diversion after another hard day mulling the intricacies of land use and real property law, I sat down last night with my wife to enjoy a quirky, Oscar-nominated film called "The Descendants."  You can imagine my surprise and indignation when a key plot point hinged on the rule against perpetuities!  Although the intricacies of the rule were irrelevant, my enjoyment of the film was greatly diminished as I found myself attempting to mentally sort out how the rule would apply in this situation and whether the movie had gotten the rule right rather than paying attention to the poignant tale that was unfolding. 

Fortunately for you, I am not going to spend this post saying whether the movie got the rule against perpetuities right because, frankly, that would just reveal my ignorance about the rule.  Rather, the movie's treatment of the rule against perpetuities communicated an interesting and somewhat disturbing message about dead hand control in property law.    

To summarize ever so briefly, the protagonist Matt King is a real estate lawyer in Hawaii who, along with innumerable cousins similarly garbed in garish Hawaiian shirts, has inherited an interest in 25,000 acres of pristine Hawaii land from a native Hawaiian ancestor.  The land is held in a trust administered by our hero, who tells us at the outset that because of the rule against perpetuities, the trust is set to expire in seven years (thus beginning my confusion, as I had thought trusts were exempt from the rule).  The entire local community is greatly interested in the fate of the land, which now rests in the hands of Mr. King along with several other weighty personal matters which will be resolved in the following 2 hours.  SPOILER ALERT AHEAD: 

Most of the cousins wish to sell the land now to a real estate developer before the trust expires.  Our hero seems set to agree with them, but then dramatically changes his mind in the movie's conclusion, asserting that he and the family have an obligation to their ancestors, their descendants, and to the Hawaiian people at large to maintain the land in its pristine state.  When his cousins question him about how he's going to get around the RAP problem, he says that he's got seven more years to figure that out.  They seem convinced. 

So what's the message for property lawyers?  The movie interprets the RAP as a heartless legal formality that operates to remove land from its sentimental roots and convert it into a market commodity that can be exploited by rapacious real estate developers (it is no coincidence that the nearest thing the movie has to a villain is a real estate broker).   This is, to say the least, an interpretation of the RAP that property profs will find novel.  I have always understood the purpose of the RAP to be the prevention of a landed aristocracy: no longer can a landowner ensure that the source of his or her wealth stay in the family for all time.  The dramatic conclusion of "The Descendants," by contrast, asks us to cheer for the protagonist as he attempts to perpetuate his family's landed aristocracy into perpetuity.  The movie accomplishes this through a clever trick: we do not see the protagonist as an aristocrat, but as someone whose wealth and privilege is a burden because he is so conscious of the monumental social impact of his great fortune.  And it's easy to look good when your adversary is a developer.  The movie practically makes one nostalgic for the days when society was ruled by a patrician class with an acute sense of social responsibility.  After Citizens United, we still have the patrician class, but without the social responsibility. 

In short, I could not enjoy the movie.

Ken Stahl

http://lawprofessors.typepad.com/land_use/2012/04/the-descendants-and-the-rule-against-perpetuities-hooray-for-aristocracy.html

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