Right of First Refusal:
How It Works, Triggers, Examples

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What is Right of First Refusal?

In real estate, right of first refusal (ROFR) is a contract clause that gives certain people the contractual right to purchase a property before the seller accepts public offers. A right of first refusal is beneficial to interested parties because it gives them the opportunity to have first dibs before any other offers can be received on the property. However, it can be a disadvantage for sellers, since it can block their access to other offers.

How Does Right of First Refusal Work?

Right of first refusal in real estate allows interested parties the first chance to purchase a property. The right of first refusal can be used to sweeten the deal when renting out a property. Some sellers offer it as a way to attract tenants who are looking to buy but may not be ready yet.

Since the terms of the agreement are signed before the house goes on the market, it allows potential buyers plenty of time to ready themselves before committing to a mortgage. Tenants who need time to financially prepare can take this time to save for a down payment or to improve their credit score.

Elements of Right of First Refusal

This contract clause is negotiated before the home reaches the market and has a few elements. Real estate lawyers help sellers and buyers determine the terms of the contract clause. The same lawyers help construct the purchase and sale agreement that transfers the home, too.

  • Time Limit : parties that have right of first refusal must exercise their privilege within a pre-determined amount of time or risk having to compete with others to purchase the property
  • Sale Price : right of first refusal contracts should determine how a sale price will be calculated if a seller decides to list the property
  • Breach Remedies : determines what happens if right of first refusal contract clauses are not honored
  • Exceptions : any special situations that might alter the terms of ROFR, such as a cash offer

Right of First Refusal Example

Aaliyah is a real estate agent who specializes in selling luxury homes. One of her clients is interested in purchasing a property that is only available for rent. Even though Aaliyah has showed this client several other properties in the area, the client is not interested in any other option. Right of first refusal is a great option for this client.

  • In order to make her client happy, Aaliyah approaches the owner of the rental property and asks for a right of first refusal
  • The property owner agrees that they will give Aaliyah’s client first dibs on the home if they decide to sell
  • Aaliyah consults with her company’s real estate lawyer to draw up the terms
  • The home owner and lawyer agree on right of first refusal elements such as purchase price, time limit, and any remedies in the event of a breach of contract
  • The real estate lawyer documents all the details, which is then added into the lease agreement
  • The homeowner and tenant agree and sign the contract
  • If the home ever goes up for sale, Aaliyah’s client will have the opportunity to purchase the house at the agreed-upon price before it ever hits the market

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What Triggers Right of First Refusal?

Right of first refusal in real estate is triggered when a homeowner decides to sell their property. If he or she has entered into a contractual agreement that requires them to give someone else the right to purchase the house first, right of first refusal is triggered immediately.

Right of first refusal can also be set into motion if a third party offers to purchase a property from a property owner. In this scenario, whoever holds the ROFR would have the opportunity to match the offer and gain ownership of the property. If this occurs, whoever has right of first refusal must also be granted the same terms as the third party.

Learn more about right of first refusal in real estate here .

Examples of Right of First Refusal in Real Estate

Right of first refusal helps interested parties have the best chance of acquiring a property they are interested in. Since this contractual right requires sellers to accept offers from rights holders before going public, this often means that those with right of first refusal have the opportunity to get a great deal. There are a couple of different scenarios where right of first refusal would apply.

When an Owner Decides to Sell

When a property owner decides to list their home on the real estate market, right of first refusal goes into effect. The seller must notify the right of first refusal holder before they can bring their listing to the public. Then, whoever has right of first refusal has a certain amount of time to put their offer in before their rights expire.

Right of first refusal protects interested parties from having to enter into a bid war for a property. This is good news for them because it means there is a much better chance of gaining a property at a bargain than otherwise. It also guarantees the property to a buyer as long as the terms are followed.

When an Offer is Received from a Third Party

Sometimes, an interested third party will put an offer in on a property that is not for sale. If this happens and the property owner is interested in the offer, they cannot immediately accept the offer if someone else has right of first refusal. The owner must allow the owner of first refusal rights the option to buy before the third-party offer can be accepted.

Read more about right of first refusal here .

Right of First Refusal vs. Right of First Offer

In the real estate industry, there are two contractual rights that apply to the hierarchy of home selling: right of first refusal and right of first offer. Even though they sound similar, the rights they provide are not identical. In fact, there are major differences to each one.

  • Right of First Refusal: Whoever has the right of first refusal on a property must be allowed to purchase the home before it goes to market. Other offers cannot be entertained unless the rights holder declines to purchase.
  • Right of First Offer: Those with the right of first offer are promised that they will have the opportunity to make an offer on a property. However, there is no guarantee that they will be granted ownership and there is no obligation for their offer to be prioritized over others.

Find out more about the differences between right of first refusal and right of first offer here .

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Are you interested in learning more about right of first refusal and other key terms of real estate contracts such as arbitration clause, choice of law clause, confidentiality clause, definitions clause, indemnification clause, and severability clause? Share a project today on ContractsCounsel and start receiving bids from real estate lawyers who specialize in right of first refusal.

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