If you ever have a prospect interested in buying a property with a First Right of Refusal on it, you have a delicate situation that you need to address. When talking about a potential sale of a property, a First Right of Refusal is an agreement that gives someone the right to purchase a property at the exact same terms and conditions contained in an offer that the owner has received (and wants to accept) from another buyer.
Build Your Real Estate Business While On-The-Go!
In this situation, the owner is first obligated to offer their property for sale to the holder of the First Right of Refusal at the exact price and terms contained in the offer they've received. The holder of the First Right of Refusal can then either agree to purchase the property under the same terms and conditions, or decline and allow the other buyer to move forward and complete the purchase.
This is very different from someone having an option to purchase because with a First Right of Refusal, the owner has no obligation to sell their property to anyone at a predetermined price. The ability to exercise a First Right of Refusal is only triggered when an owner receives an offer to purchase their property that they would like to accept. The property may be listed at the time, or the owner may have received an unsolicited offer to purchase without ever listing their property for sale.
When a First Right of Refusal is given, it's normally given to the tenant occupying the property, but occasionally it can be given by an owner to someone else. It's normally negotiated in situations where the tenant feels they'd like to own the property someday, but the owner isn't interested in selling it to them right away.
So in activating the First Right of Refusal, a buyer submits an offer to the owner that's acceptable for the purchase of the property, then the owner presents the offer to the holder of the First Right of Refusal to see if they are willing to purchase the property under the same price and terms. If they're not, the owner will then proceed to sell the property to the original buyer who submitted the offer.
The problem here is if you're the agent representing the buyer submitting the original purchase offer to the owner. If the First Right of Refusal is exercised, you now have no transaction to get paid on unless you have a listing on the property. This is true even though it was your client's offer that caused the sale to take place. So in effect you've done all the work that caused the seller to sell their property, and you've saved the seller from paying you a commission in the process, too.
So what's the ideal solution here?
say something like this to the owner:
"The only way that I'll attempt selling your property is if you sign an agreement stating that you'll pay me a 6 percent commission if your tenant exercises his First Right of Refusal to buy it. Whether or not your tenant exercises his First Right of Refusal, it's my having produced the offer from my buyer that's creating the sale, and I should be compensated for it."
Make sure the owner will pay you a commission if the other party exercises its First Right of Refusal when you submit your offer, and you'll go home with much more than a "thank you" from the owner at the end of the day.
Jul 11, 2013