The feud between Disney and Florida Governor Ron DeSantis has turned into a mini drama-series that might last several seasons. As a recap, at the end of February 2023, DeSantis signed legislation taking over Disney’s special development district, Reedy Creek Improvement District. In taking over the district, DeSantis would appoint his own board, filling it with election donors and allies, and renaming the district the Central Florida Tourism Oversight District. This takeover was DeSantis way of retaliating against Disney for publicly opposing the “Don’t Say Gay” bill that was signed into law in March 2022.
In this season of the battle between Disney and DeSantis, DeSantis and his newly appointed board found themselves caught in the Disney mouse trap at the second meeting of the oversight board. Before DeSantis signed the law taking over the district, Disney’s Reedy Creek District held a board meeting and signed a new agreement, stripping the board of its power and handing a significant amount of power back to Disney. The agreement is a Declaration of Restrictive Covenants; it allows Disney to have the final say on any alterations to the property and requires the board to inform Disney of plans for such alterations without conditions or delays.
The newly appointed “DeSantis” board realized this declaration means they will lose most of their ability to do anything other than maintain the roads and maintain basic infrastructure. The bigger trap is that the declaration was set using the “Rule Against Perpetuities.”[1] Any law student can tell you that the rule against perpetuities is one topic they will never forget. “It’s one of those things in law school that feel ‘lawyerly’, but you’ll likely never encounter,” attorney Whitney Merrill wrote in response to the Disney news, “Why the lawyers are all geeking out today.”[2] The Rule Against Perpetuities holds that the declaration will continue until twenty one (21) years after the death of the last survivor of the descendants of King Charles III. University at Buffalo School of Law Professor of Property Law, Rebecca Redwood French commented, “This clause is basically a Perpetuities Saving Clause, or a clause put into an agreement on real property that insures that the agreement will not fail because it lasts beyond the time allowed under the Rule Against Perpetuities. The specific one chosen in this case is called a “Royal Lives Clause” which is common in England, to tie the length of the agreement to the lives of members of the Royal family in England alive when the agreement was created plus 21 years.” She added, “Such clauses are common in Rule Against Perpetuties states but usually are limited to the members of the family concerned or a famous family in the US such as the Kennedy family.” It is likely that Disney chose the Royal Family because of the ties to the “Magic Kingdom”. Disney could have also selected King Charles III, since his birthdate and his descendants’ birthdates are matters of public knowledge, and the most recent living descendant was born in 2021.
The Rule Against Perpetuities is meant to prevent people from making indefinite property deals, by limiting them to 21 years past the death of a specific person who is alive as of the date of the deal. The last survivor of the descendants of King Charles III is his granddaughter Princess Lilibet of Sussex, Prince Harry and Megan Markle’s daughter. She is almost two years old, and if she has the strength and will of her late great-grandmother, Queen Elizabeth, who lived till she was 90 years old, the declaration would remain in place until 2132.[3]
DeSantis and the new board were sitting for their second official meeting when they made the discovery. No one was aware the old Reedy Creek board made the changes. In a statement provided to NPR, Disney said the move was “appropriate” and “approved in open, noticed public forums in compliance with Florida’s Government.” The declaration was recorded in the February 8th Reedy Creek agenda and meeting minutes, and the agreement was registered with the Orange County Comptroller. The public meeting on February 8th was open to the public and there were no public comments made on the agreement. It seems that no one on DeSantis’s team monitored or was aware of anything that the Reedy Creek board legally did at the February 8th meeting.
The declaration is binding, which means if the new board oversteps its powers, Disney could sue for legal damages. [4]
DeSantis called for a state investigation into the declaration. Florida’s chief inspector general Melinda Miguel is doing “a thorough review and investigation” into the agreements made by the Reedy Creek Improvement District and the board members and employees who were behind the agreements.[5]
[1] Olson, Emily, “Disney blocked DeSantis’ oversight board. What happens next?”, 30 Mar. 2023, https://www.npr.org/2023/03/30/1167042594/disney-desantis-board-reedy-creek-charles
[2] Papantonis, Nick, “Reedy Creek mouse trap: What is the ‘rule against perpetutites’ and why is King Charles involved?”, 30 Mar. 2023, https://www.wftv.com/news/local/reedy-creek-mouse-trap-what-is-rule-against-perpetuities-why-is-king-charles-involved/BOQIM7OW2RCLLPNJCL5YG2AE2I/
[3] Murphy Jr., Bill, “Disney Just Revealed Its Response to Florida’s New Law, and Taught a Master Class in Strategy,” 1 Apr. 2023, https://www.inc.com/bill-murphy-jr/disney-revealed-its-response-to-floridas-new-law-taught-a-master-class-in-strategy-patience.html
[4] Olson, Emily, “Disney blocked DeSantis’ oversight board. What happens next?”, 30 Mar. 2023, https://www.npr.org/2023/03/30/1167042594/disney-desantis-board-reedy-creek-charles
[5] Barnes, Brooks, “Disney Sues DeSantis Over Control of Its Florida Resort,” 26 Apr. 2023, https://www.nytimes.com/2023/04/26/business/disney-desantis-board-florida.html
Also overlooked by DeSantis is how he cannot legislatively change the agreements.
There is a part of the United States Constitution that he seems to forget about. It is the Contract Clause.