Property — rights of first refusal

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Wisconsin Court of Appeals

Civil

Property — rights of first refusal

A right of first refusal is not indefinite.

“We conclude waiver can have only one reasonable meaning under the policy. ‘Waiver’ must refer to Tidy-View’s refusal to buy the property under the terms of a third-party offer to purchase, when the transfer to a third party is ultimately accomplished pursuant to Section 1. ‘Waiver’ cannot refer to Tidy-View’s refusal to meet the terms of a third-party lease; that would make Section 2.2 internally inconsistent. The only interpretation of ‘waiver’ consistent with the entire agreement is Tidy-View’s refusal to meet the terms of a third-party purchase offer. ‘Waiver,’ in a sense, ties together the purchase and lease provisions such that the sale or transfer of the property to a third party necessarily extinguishes both rights.”

“We conclude this interpretation gives effect to the intent of the parties, which is our primary goal. See Nature Conservancy, 313 Wis. 2d 382, ¶6. As Tidy-View concedes, the ‘primary purpose of the ROFR … was to afford Tidy[-]View the pre-emptive opportunity to utilize the property in the event the Foxes choose to offer such use to others.’ When Tidy-View allows a third party to buy the property, it has necessarily waived its opportunity to use the land. And since the Foxes no longer own the property upon a completed third-party transfer, they are no longer in a position to offer its use to anyone else, including Tidy-View.”

Reversed and Remanded.

Recommended for publication in the official reports.

2013AP679 MS Real Estate Holdings, LLC, v. Donald P. Fox Family Trust

Dist. III, Outagamie County, Gage, J., Mangerson, J.

Attorneys: For Appellant: Hemaidan, Jordan J., Madison; Screnock, Michael P., Madison; For Respondent: Koehler, Charles D., Appleton