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2017-09-20 06:01
Corlia van Zyl

Corlia van Zyl

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Question:

I have been renting a house for a few years. I would like to eventually buy the place should the owner decide to sell, and I asked that we include a right of first refusal in my favour in the lease agreement. The lease has been renewed a few times over the years. Now the owner has decided to sell to his brother-in-law, saying that my right fell away when the lease was renewed and no longer exists. Can he do this?

Answer:

A right of first refusal (also called a right of pre-emption) affords the holder of the right a preference to buy a property should the owner sell it. One often encounters such a right of first refusal being included in lease agreements for the same reason you have such a right, namely to enable the lessee to have the first opportunity to buy the property if it comes into the market.

The Constitutional Court recently had to consider the question of whether such a right of first refusal lapses when a lease agreement is renewed or whether it is also renewed when the lease agreement is extended.

In terms of our common law, the rule is that only essential terms to the lease relationship, such as the time period and rental, will be renewed. Non-essential or collateral terms will not automatically be renewed, unless the parties clearly indicated that these terms should also renew.

The Court disregarded this common law principle and in considering the matter, stated that this position unduly favours the lessor and that it is inconceivable that the ordinary lay person would be able to distinguish between what would be essential and collate-ral to their relationship.

The court held that unless expressly or tacitly agreed otherwise, rights of first refusal are automatically renewed when the lease is renewed.

In your situation, unless renewal is specifically excluded, it does appear that your right of first refusal will have renewed with your lease renewals and that the owner cannot sell the property without first offering it to you. We recommend you ask your attorney to review the wording of your lease agreement and assist you in explaining the continued existence of your right of first refusal to the owner.
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Corlia van Zyl, associate, Phatshoane Henney Attorneys

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