First Right of Refusal

[mamacole83]

My question involves real estate located in the State of: Wisconsin

We purchased our farm and 80 acres and included in purchase contract first right of refusal on additional 80 acres
previous farmer just told us he has agreed to sell those 80 acres to a frack sand company and will be closing in a few days
he did tell us how much they are paying him but never has said anything regarding our first right of refusal
all his information to us was nonchalant/just so we know but i repeat nothing regarding our first right of refusal on said property

is there anything we can do??? obviously there is no way for us to match what the sand company has offered him
but are we able to sue him for "damages" or anything after the fact for never officially offering us first right of refusal?

thanks so much for any help!!

[flyingron]

What "damages" do you think you have? If he had offered it to you, you could not have accepted. Your feelings being hurt are not recoverable.

[mamacole83]

"Because an ROFR is a contract right, the holder's remedies for breach are typically limited to recovery of damages. In other words, if the owner sells the asset to a third party without offering the holder the opportunity to purchase it first, the holder can then sue the owner for damages"

just something i read on wikipedia


im not sure what constitutes damages but we rely on that 80acres for making feed for our cows and pasture etc.
we just purchased the farm and half the land(all we could afford at the time) in 2010 and had every intention of purchasing
the additional 80 acres within the 5years we had first right of refusal.. but planned on ag. prices not this...
and yes i admit our feelings are very hurt but so is the future of our business too

thanks again

[flyingron]

What constitutes damages are what you are out if he had followed the contract versus what happened when he didn't.
I'm presuming the right of first refusal clause allowed you to meet the other parties offer, rather than pay him some arbitrary smaller amount.
In that case, if you are unprepared to meet that offer, you have ZERO damages.

Of course, it depends on just what your contract says. We can't see it. Take it to a lawyer.

[Mr. Knowitall]

If you want to assert your rights under your "right of first refusal", given that you have knowledge of the sale, sitting on your hands while the sale goes through will likely cause a court to deem you "guilty of laches" (an old-fashioned way of saying that when given the opportunity to act to protect your rights, you instead did nothing over a period of time during which you should have acted) such that your rights are deemed waived. See, e.g., Hanson v. Winsnes, 2006AP1497 (Wis Ct App, unpublished, 2007).

If your option is on file with the register of deeds, presumably the buyer already knows about it. If not, it's possible that they do not. You can inform them of your option and see how they respond, but I expect that they will let you know that you are free to beat their offer - and you've already stated that you have neither the resources nor the intention of doing so.