THE STATE OF SOUTH CAROLINA 

In The Court of Appeals 

Spring Valley Interests, LLC, Appellant, 

v. 

The Best for Last, LLC, Respondent. 

Appellate Case No. 2022-000813 

Appeal From Richland County 

Jocelyn Newman, Circuit Court Judge 

Opinion No. 6070 

Heard May 15, 2024 – Filed July 10, 2024 

AFFIRMED 

Kenneth Ray Raynor, of Raynor Law Firm, PLLC, of 

Charlotte, North Carolina, for Appellant. 

Kirby Darr Shealy, III, of Adams and Reese LLP, and 

Luke M. Allen, both of Columbia, for Respondent. 

KONDUROS, J.: Spring Valley Interests, LLC (Spring Valley) appeals the 

circuit court's order finding void a contractual purchase option (Purchase Option) 

for a portion of property owned by The Best for Last, LLC (Best). The circuit 

court found the Purchase Option was void pursuant to the common law Rule 

Against Perpetuities (CLRAP). Spring Valley argues this was error because the 

CLRAP has been preempted by the South Carolina Uniform Rule Against 

Perpetuities (SCURAP), which would provide protection to Spring Valley under 

the facts of this case. We affirm. 
 

 

 

 

 

 

 

 

 

FACTS/PROCEDURAL BACKGROUND 

On or about May 3, 2017, Spring Valley's predecessor, White Interests Limited 

Partnership (White), entered into an agreement (Loan Agreement) with Best, 

wherein White loaned $800,000 to Best. Best used the loan proceeds to purchase 

certain real property located in Columbia (the Property). As part of the 

consideration for the loan, Best granted White a freely assignable and perpetual 

option to purchase a 74.425% undivided co-tenancy interest in the Property. The 

Purchase Option, set forth in Section 2 of the Loan Agreement, specifically 

provides: 

Lender's Purchase Option. I[n] consideration for making 

the Loan, the Borrower hereby grants to Lender the 

perpetual option to purchase a 74.425% undivided cotenancy interest in the Property (the "Purchase Option") 

for a purchase price of Eight Hundred Thousand and 

00/100 Dollars (the "Purchase Price."). The Purchase 

Option shall be exercised at the Lender's sole discretion 

by delivery of a written notice no later than thirty (30) 

days before the intended closing. The Purchase Price 

shall be paid in cash or immediately available funds at 

the Closing. The Lender shall hold take [sic] title to the 

co-tenancy interest subject to (1) no mortgages other than 

the Borrower's then outstanding first lien mortgage, and 

(ii) a mutually acceptable co-tenancy agreement. The 

Purchase Option is freely assignable by the Lender. 

White assigned its right to exercise the Purchase Option to Spring Valley. 

On August 21, 2019, Spring Valley sent Best a letter entitled "Notice of Exercise 

of Option to Purchase." The letter notified Best that Spring Valley was exercising 

its option to purchase a 74.425% undivided co-tenancy interest in the Property. 

Best objected to the exercise of the option and insisted that Spring Valley exercise 

the option by becoming a member of Best. The parties engaged in negotiations 

and nearly came to an agreement but for Spring Valley's insistence on certain 

attorney's fees. 

Spring Valley filed a complaint seeking specific enforcement of the Purchase 

Option and reformation of the Loan Agreement. Best filed an answer asserting 

defenses including that the Purchase Option was void because it violated the 
 

 

 

 

 

 

 

 

 

 

 

 

CLRAP. Best eventually filed a motion for summary judgment as to the specific 

performance claim, which the circuit court granted based on the following: 

The Uniform Statutory Rule Against Perpetuities 

(USRAP) does not apply in this case. Generally, the 

USRAP supersedes the common law rule against 

perpetuities. S.C. Code Ann. [§] 27-6-80 [(2007)]. 

However, USRAP does not apply to nonvested property 

interests arising out of a [non]donative transfer. S.C. 

Code Ann. [§] 27-6-50(1) [(2007)]. Here, the basis of the 

parties' arguments concerns—a nondonative transfer— 

the commercial transaction involving the purchase 

option. Because USRAP does not apply to nondonative 

transfers, the USRAP cannot supersede or replace the 

common law, thus the common law is the appropriate 

legal standard to conclude that the purchase option is 

unenforceable. 

This appeal followed. 

STANDARD OF REVIEW 

"When reviewing a grant of summary judgment, an appellate court applies the 

same standard used by the trial court." Town of Summerville v. City of North 

Charleston, 378 S.C. 107, 109, 662 S.E.2d 40, 41 (2008). "A grant of summary 

judgment is proper when there is no genuine issue as to any material fact and the 

moving party is entitled to judgment as a matter of law." Id. at 109-10, 662 S.E.2d 

at 41 (citing Rule 56(c), SCRCP). "Determining the proper interpretation of a 

statute is a question of law, and this [c]ourt reviews questions of law de novo." Id. 

at 110, 662 S.E.2d at 41. 

LAW/ANALYSIS 

I. Preemption of the CLRAP by the SCURAP 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Spring Valley maintains because the CLRAP was preempted by the SCURAP, the 

circuit court erred in concluding the CLRAP1 prevented the Purchase Option from 

being enforceable. We disagree. 

Section 27-6-20(A) of the South Carolina Code (2007), provides: "A nonvested 

property interest is invalid unless: (1) when the interest is created, it is certain to 

vest or terminate no later than twenty-one years after the death of an individual 

then alive; or (2) the interest either vests or terminates within ninety years after its 

creation." However, section 27-6-50 of the South Carolina Code (2007 & Supp. 

2023) exempts certain property interests from that provision. It states "[s]ection 

27-6-20 does not apply to (1) a nonvested property interest or a power of 

appointment arising out of a nondonative2 transfer . . . ." Two other sections 

comment on the scope of the SCURAP. Section 27-6-60(A) of the South Carolina 

Code (2007) provides: "[T]his chapter applies to a nonvested property interest or a 

power of appointment that is created on or after July 1, 1987." Section 27-6-80 

instructs that "[t]his chapter supersedes the common law rule against perpetuities." 

Spring Valley argues section 27-6-50, which makes section 27-6-20 inapplicable to 

nondonative transfers, combined with section 27-6-80, superseding the common 

law, removes nondonative transfers completely from any application of the RAP— 

either the statutory iteration or at common law. With regard to section 27-6-20, 

subsection (A)(1) is simply a restatement of the CLRAP. Subsection (A)(2) 

provides for a ninety-year wait-and-see period that would likely save otherwise 

violative transfers. Therefore, subsection (A)(1) cannot doom the commercial 

transfer in this case, but subsection (A)(2) cannot save it or provide a mechanism 

to delay a declaration of the transfer as void. The conundrum then is how does 

section 27-6-80 affect transfers to which the statutorily stated SCURAP and waitand-see provision do not apply. 

Supersede is defined in Black's Law Dictionary as "obliterate, set aside, annul, 

replace, . . . [t]o set aside." Supersede, Black's Law Dictionary (6th ed. 1990). "A 

rule of statutory construction is that any legislation which is in derogation of 

common law must be strictly construed and not extended in application beyond 

clear legislative intent." Doe v. Marion, 361 S.C. 463, 473, 605 S.E.2d 556, 561 

(Ct. App. 2004). Therefore, a statute is not to be construed in derogation of 

1 The CLRAP mandates that any interest not certain to vest within a life in being 

plus 21 years is void. Black v. Gettys, 238 S.C. 167, 176, 119 S.E.2d 660, 664 

(1961). 

2 The parties do not dispute that this case involves a nondonative transfer. 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

common law rights if another interpretation is reasonable. Hoogenboom v. City of 

Beaufort, 315 S.C. 306, 318 n.5, 433 S.E.2d 875, 884 n.5 (Ct. App. 1992). In this 

case, subsection 27-6-20(A)(1), containing the statutory expression of the RAP, 

does not apply to nondonative transfers. Therefore, it cannot supersede or replace 

the CLRAP with regard to nondonative transfers, which are expressly excluded. 

Faced with the identical question, the North Carolina Court of Appeals has 

addressed this issue applying its prior version of the URAP that mirrored our own. 

In New Bar Partnership v. Martin, the court concluded the following: (1) the 

USRAP does not apply to nondonative transfers; (2) commercial transactions such 

as the commercial lease in that case are nondonative transfers; and (3) the CLRAP 

applies when the USRAP does not and therefore applies to commercial 

transactions. 729 S.E.2d 675, 683 (N.C. Ct. App. 2012). While North Carolina law 

is not controlling, our courts have found it persuasive, particularly when 

considering comparable statutes. See Parrott v. Barfield Used Parts, 206 S.C. 381, 

396, 34 S.E.2d 802, 804 (1945) ("[W]hile of course not binding upon this [c]ourt, 

[the North Carolina case] is highly persuasive, because it relates to practically the 

same question now under consideration, and the North Carolina Act is 

substantially the same as ours as to the particular sections involved . . . .").

3 

We recognize that North Carolina, in 2022, revised its version of the USRAP to 

state the legislation "abolished" the CLRAP. See N.C. Gen. Stat. § 41-6.5(c) 

(2022) ("This section clarifies the intent of the General Assembly to abolish the 

common-law rule against perpetuities when it enacted Chapter 190 of the 1995 

Session Laws, which enacted the Uniform Statutory Rule Against Perpetuities."). 

Nevertheless, New Bar has not been overruled by an appellate court. Furthermore, 

while most of the states that have adopted the USRAP seem to conclude its 

adoption removed commercial transactions from the purview of both the CLRAP 

and the USRAP, South Carolina was the first state to adopt the USRAP in 1987. 

See John A. Borron, Jr., 3 Simes and Smith, The Law of Future Interests, § 1451 

(3d ed. 2002) ("South Carolina was the first state to adopt the Uniform Act."). 

Consequently, we cannot say with certainty that the "abolishment" of the CLRAP 

was our legislature's intent at the time. Unlike North Carolina, South Carolina did 

not pass any companion statutes regarding commercial transfers that would have 

moderated the effects of the abolition of the CLRAP. See N.C. Gen. Stat. Ann. § 

41-29 (1995) ("An option in gross with respect to an interest in land or a 

3 This quoted language is from the circuit court's order, which was reported with 

the supreme court's opinion and cited with approval. See Parrott, 206 S.C. at 402, 

34 S.E.2d at 806. 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

preemptive right in the nature of a right of first refusal in gross with respect to an 

interest in land becomes invalid if it is not actually exercised within 30 years after 

its creation."); see also N.C. Gen. Stat. Ann. § 41-30 (1995) ("A lease to 

commence at a time certain or upon the occurrence or nonoccurrence of a future 

event becomes invalid if its term does not actually commence in possession within 

30 years after its execution. For purposes of this section, the term 'lease' does not 

include an oil, gas, or mineral lease."). These statutes would have prevented many 

commercial transactions from falling into a RAP vacuum if the CLRAP did not 

apply. 

Moreover, the complete abolition of the CLRAP without some provision for 

limitations in commercial transactions risks putting two legal principles at odds— 

freedom to contract and restrictions on alienability. Generally, parties are free to 

contract for terms upon which they agree subject to reasonable regulations to 

protect an overriding public interest. S.C. Dep't of Consumer Affs. v. Rent-A-Ctr., 

Inc., 345 S.C. 251, 255, 547 S.E.2d 881, 883 (Ct. App. 2001). One such parameter 

is prohibiting the enforcement of unreasonable restrictions on alienation of real 

property. Wise v. Poston, 281 S.C. 574, 579, 316 S.E.2d 412, 415 (Ct. App. 1984) 

("Under South Carolina common law, any unreasonable limitation upon the power 

of alienation is against public policy and must be construed as having no force and 

effect.").4 Consequently, because we can construe the SCURAP in a manner that 

preserves the common law, we affirm the circuit court's ruling finding the purchase 

option void under the CLRAP. 

II. Implied Term of a Reasonable Time 

Spring Valley next contends an implied term exists in the contract that the 

Purchase Option would be exercised within a reasonable time to prevent the 

Purchase Option from violating the CLRAP. We disagree. 

4 While a claim for unreasonable restriction examined under the auspices of the 

Restatement provides a vehicle to call commercial transfers into question, in the 

absence of clear intent from the legislature, we are inclined to construe the USRAP 

in a way that preserves the common law. See Restatement (Third) of Property 

(Servitudes) § 3.4 (2000) ("Reasonableness is determined by weighing the utility 

of the restraint against the injurious consequences of enforcing the restraint.") 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Initially, whether this contention is preserved for appellate review is questionable. 

In its reply brief, Spring Valley points to the following argument it made before the 

circuit court to demonstrate it preserved this issue: 

[O]ne thing, too; I, I talked about the, you know, the rules 

for commercial transactions are different. One of the 

differences of the, one of the differences of the --

including these estate kind of, kind of transfers that a 

commercial transfer -- courts, including courts in South 

Carolina where no date is stated in a commercial transfer 

for something to be accomplished, courts routinely apply 

a reasonable date. And so that in and of itself is a kind of 

illustration of why commercial cases were excluded, but 

that would apply in this case. 

The circuit court's order does not mention any implied or reasonable term in the 

contract. Even if the argument was sufficiently raised to the circuit court, Spring 

Valley did not seek a ruling on this point and argues on appeal the court's order 

implicitly rejected this argument. Therefore, the preservation of this argument is 

suspect. See S.C. Dep't of Transp. v. First Carolina Corp. of S.C., 372 S.C. 295, 

302, 641 S.E.2d 903, 907 (2007) ("To successfully preserve an issue for appellate 

review, the issue must be: '(1) raised and ruled upon by the trial court; (2) raised by 

the appellant; (3) raised in a timely manner; and (4) raised to the trial court with 

sufficient specificity.'" (quoting Jean Hoefer Toal et al., Appellate Practice in 

South Carolina 57 (2d ed. 2002)). However, "where the question of issue 

preservation is subject to multiple interpretations, any doubt should be resolved in 

favor of preservation." Johnson v. Roberts, 422 S.C. 406, 412, 812 S.E.2d 207, 

210 (Ct. App. 2018) (quoting Atl. Coast Builders & Contractors, LLC v. Lewis, 

398 S.C. 323, 333, 730 S.E.2d 282, 287 (2012) (Toal, C.J., concurring in result in 

part and dissenting in part)). 

On the merits, Spring Valley's argument is unavailing. In Clarke v. Fine Housing, 

Inc., 438 S.C. 174, 882 S.E.2d 763 (2023), our supreme court rejected the notion 

that an implied "reasonable time" served to insulate a right of first refusal from a 

reasonableness examination under the Restatement. 

Clarke's . . . suggestion that the law implies a "reasonable 

time" within which he could exercise the Right [of first 

refusal is] without merit. . . . 
 

 

 

 

 

 

 

 

 

. . . Clarke misses the point of the Restatement approach 

by arguing a court can simply imply a reasonable time 

requirement in which a right of first refusal must be 

exercised. The whole point of the Restatement is to 

predetermine a limited time within which a right of first 

refusal must be exercised to protect the owner's power of 

alienation. 

A judicially implied "reasonable time" requirement 

would do little to protect the owner's power of alienation. 

Lengthy litigation over what is or is not a reasonable time 

under the facts of any given case will necessarily restrain 

alienation. 

Id. at 186-87, 882 S.E.2d at 769-70. For the same reasons, implying a reasonable 

time in a purchase option subject to the CLRAP undercuts the point of preserving 

an owner's power of alienation. Consequently, we reject Spring Valley's 

contention. 

III. Waiver—Additional Sustaining Ground 

Finally, Best argues as an additional sustaining ground that Spring Valley waived 

its right to exercise the Purchase Option by negotiating with them to reach a 

satisfactory resolution outside the basic parameters of the Purchase Option. 

Because we find the Purchase Option is void, we decline to consider the issue of 

waiver. See Whiteside v. Cherokee Cnty. Sch. Dist. No. One, 311 S.C. 335, 340, 

428 S.E.2d 886, 889 (1993) (appellate court need not address remaining issues 

when disposition of prior issue is dispositive). 

Based on all of the foregoing, the order of the circuit court is 

AFFIRMED. 

WILLIAMS, C.J., and VINSON, J., concur.