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Options and Rights in Real Property…. Oh My!! The Scary Truth About Future Interests

The law is a many splendored thing, but one thing is clear, that certain kinds of contracts and rights embodied within contracts can be confusing, especially for attorneys. True to form then, where even lawyers practicing in a particular area of law find something difficult to deal with, or they find that the law itself is unclear or that it has many ways to say the same thing, clarity is a welcome thing. In relation to real estate law in particular and specifically about the law of options and rights embodied within real estate contracts (whether purchase/sale documents or leases), much should be desired in the state of the United States “body of law” on this topic. Because of the difficulty in deciphering what is actually occurring in live transactions which often spawn years of litigation, the author proposes black-letter clarity on these kinds of clauses, and a uniformity across the United States, in order that the laws affecting the sale or rental of real estate be easier to digest, common in its understanding and application, and uniform in its laws. This Article reviews the many different kinds of rights, options and terms that are commonly used in the U.S., and explores many popular issues that arise out of the use of options and rights, in addition to their impact on other legal concepts in Property Law. Part II provides an introduction into the overall context of the Article and provides insight into the problems attendant to the mixup between rights and options in general. Part III opens up the proverbial Pandora’s Box and identifies and explains the different kinds of rights and options that are used in U.S. real estate transactions commonly within Subpart A. Subpart B identifies concerns over priority in rights and options when two kinds of things are simultaneously announced or exercised by one or more parties or third parties involving real estate. Subpart C discusses the assignability of rights and options and explores the complications that arise when original parties to a real estate contract or lease assign or are the recipients of an assignment and lay a claim to a right or option. Part IV discusses issues in exercising rights and options and Subparts A through C discuss Landlord/Tenant (and vendor/vendee), Tender, Doctrines of Good Faith and Fair Dealing, Restraints and Perpetuities, and the issues of contiguous and unrelated parcels. Part V rounds out the discussion with thoughts and reflections on how the law might be shaped through modification of existing frameworks, crafting of a uniform statute governing rights and options, in consideration of the “boots on the ground confusion” that is being displayed in courtrooms across America. While not a comparison of every kind of right vs. option case that ever was, the sum of the parts is intended to provide a jumping off point for a dialogue in the halls of those drafting model and uniform rules, and to spurn more critical examination of the issues that truly affect the parties and their counsel when things are left in a confused state, such as whether we have an option, a right, or merely a question about what is what.