The Right of First Refusal: A Condominium Minefield

Real Property Law Section 339-v(2)(a) permits condominiums, in their by-laws, to include “provisions governing the alienation, conveyance, sale, leasing, purchase, ownership and occupancy of units[.]”.

Based thereon, most residential and commercial condominiums include, in their by-laws, a so-called “right of first refusal” – pursuant to which an owner, before selling a unit, must offer the apartment to the condominium or to a contiguous owner on the same terms and conditions as the contemplated third party transaction.

It is quite rare and unusual for a condominium to, in fact, exercise the right.  However, two recent decisions by the Appellate Division, First Department, are instructive as to the issues that may arise when a condominium elects to do so.

Bittens v. Board of Mgrs. of the Octavia Condominium, 2013 NY Slip Op 33218(U) (December 17, 2013) and 2015 NY Slip Op 07540 (October 15, 2015)

Proceedings in Supreme Court:

The action in Supreme Court “[arose] out of a failed real estate transaction between plaintiff Andrew Bittens and nonparty seller, whereby plaintiff alleges that the defendant The Board of Managers of the Octavia Condominium (Board) acted improperly in exercising its right of first refusal.”

The background:

In June 2012, plaintiff became aware of a condominium unit (Unit) being privately offered for sale at the Octavia Condominium, which is located at 216-218 East 47th Street, New York, NY. Plaintiff, a lawyer who is representing himself in this action, is a partner at a real estate litigation firm. The seller of the Unit (Seller), entitled Elizabeth Atwood or 216 East 47 LLC, is a client at plaintiff’s law firm. On July 6, 2012, plaintiff entered into a contract with Seller to purchase the Unit for $300,000. Plaintiff states that he “intended to reside in the Unit as [my] I primary residence…A closing date was scheduled for July 31, 2012.

Pursuant to the contract (the Contract) between plaintiff and Seller, the prospective sale was subject to a right of first refusal whereby the Board could purchase the Unit in accordance with the Condominium’s bylaws. The Contract states the following in pertinent part, “[i]f so provided in the Declaration or By-Laws, this sale is subject to and conditioned upon the waiver of a right of first refusal to purchase the Unit held by the Condominium and exercisable by the Board[.]”

Pursuant to the Contract, the Seller had the obligation to inform the Board of the contemplated sale. If the Board decided to exercise its right of first refusal, pursuant to the Contract, the Seller was to refund plaintiff the down payment and the Contract “shall be deemed cancelled and of no further force or effect and neither party shall have any further rights against, or obligation or liabilities to, the other by reason of this contract.”…The Board had 20 days to exercise its right of first refusal or it would be waived. Section 10 in the Contract sets forth the understanding that the purchaser has examined the declaration and the bylaws of the Condominium, or has waived such an examination.

Evidently, when the Board found out about the prospective purchase, it was concerned how the below-market price sale would affect the other units in the building. Epstein, who is the President of the Board, during his testimony estimated the fair market value of the apartment to be between $500,000 and $700,000.Epstein testified that the adverse implications of the sale included “that the valuation of everyone’s units would be adversely affected by having a purchase at that price”…As such, the Board wanted to buy the Unit and then proceed with a “quick flip of that unit,” for the best interests of the condominium.

The applicable provision of the By-Laws:

According to the bylaws, the Unit may be purchased by the Board or its “designee.” The Board may levy an assessment against each unit owner to purchase the Unit or finance the Unit, in its, discretion. Article 8.6 of the bylaws states the following:

“The purchase of any Unit by the Board or its designee, on behalf of all Unit owners, may be made from the funds deposited in the capital and/or expense accounts of the Board. If the funds in such accounts are insufficient to effectuate any such purchase, ·the Board may levy an assessment against each Unit Owner, in proportion to his respective Common Interest, as a Common Charge, and/or the Board may, in its discretion, finance the acquisition of such Unit…”

The subsequent developments:

After it heard about the prospective sale, the Board held a special meeting to discuss the options. The Board did not have enough money in its reserve funds for the purchase and it did not want to levy an assessment against the unit owners. However, according to the Condo-defendants, the Board did not have enough time, due to the right of first refusal time constraints, to secure a traditional loan from a bank. After the Board reached out to several people, Wong advised the Board that he could assist with a loan in a short time frame and guarantee the Board a minimum return.

A meeting was held on July 18, 2012 to discuss the right of first refusal with respect to the Unit. The Board voted to exercise its right of first refusal, and designated Wong or an LLC formed by Wong, to be its designee. The minutes of the meeting provide that the Board would enter into a joint venture agreement with Wong or an LLC formed by Wong. Wong would be the designee who financed and purchased the Unit. Then, after re-sale, Wong and the Condominium would split the profits, but the Condominium would receive no less than $100,000 on any re-sale.

On July 25, 2012, the Board entered into an agreement with Wong or an LLC formed by Wong (Designee Agreement). The agreement specifically was between the Board and “Joseph T. Wong, Esq. or an LLC to be formed, (‘Wong’), with an address at 1- Lafayette Street…The agreement set forth what was discussed at the Board meeting and emphasized, in caps, that the Condominium was to receive no less than $100,000 of the re-sale of the Unit. The agreement noted that “Wong shall essentially step into the shoes of the Board and pay any and all costs, fees and taxes due by or from the Board in its exercise of its right of first refusal.”…The agreement also emphasized that the Board was acting as agent for its unit owners. Epstein testified that the financing agreement arranged with Wong and the Board was not in violation of the bylaws.

Epstein testified that it was acceptable and authorized within the bylaws for Wong or his entity to receive the money. He further stated “[w]e are permitted to engage in financing transactions for the benefit of the condominium unit holders. And in that regard, we have to exercise proper judgment as a board as to what would be a responsible transaction for the benefit of the holders[.]”

By letter dated July 25, 2012, the Seller was informed that the Board wanted to exercise its right of first refusal and purchase the Unit. The letter stated the following, in pertinent part:

“Please be advised that pursuant to Article 8 of the Bylaws of the Octavia Condominium, the Board of Managers hereby exercises its right of first refusal to purchase Unit 22A at 216 East 47tn Street, New York, New York, upon the’ same terms and conditions as set forth in the Contract of Sale dated July 6, 2012 between 216 East 47 LLC and Andrew B. Bittens.

We are eager to close upon your receipt of contact our counsel on the transaction so this letter, kindly to set up the Closing of Sale to the Unit.”

*     *     *

One day later, plaintiff was informed about the Board’s decision. On July 31, 2012, Bogart, who, was counsel to the Board for this transaction, emailed the Seller’s lawyer, “[w]e will take title in the name of 320 57th Street LLC c/o Joseph Wong, 100 Lafayette Street[.]”

Lam, a member of the Board, is also a member of 320 57th Street LLC. Apparently the Board was unaware that Lam was a 10% owner in 320 57th Street, LLC until after this action commenced. Lam himself was unaware that he was listed as 10% owner of the entity that did the purchasing. Epstein stated that, although he wished that he knew of Lam’s interest prior to the sale of the Unit, it would not have changed his judgment on the transaction. The Condo-defendants further advise that section 2.13 of the bylaws permits the Board to contract with a Board member, “except in cases of bad faith of willful misconduct, incurring any liability for self-dealing.”…Lam informed the Board that he had no economic interest in the transaction.

According to defendants, 320 57th Street, LLC’s title company would not provide title insurance until the Board waived its right of first refusal prior to closing…DeGidio, secretary of the Board of Managers, testified that this was a “normal document that we would sign for a closing,” either for the attorneys or the title companies…As such, on August 10, 2012, DeGidio, as Secretary to the Board, issued the Board’s waiver and release of the Board’s right of first refusal with respect to the sale of the Unit on the terms and conditions set forth in an offer by 320 ~7th Street, LLC. The title report lists 320 57th Street, LLC as the purchaser and the proposed insured, and provides all of Wong’s contact information.

On that same date, the Unit was sold from the Seller to 320 57th Street, LLC for $300,000, plus some additional small fee adjustments.

On December 20, 2012, as promised in the Designee Agreement, 320 57th Street, LLC re-sold the Unit to other purchasers for $540,000. The Condominium then received a check for $112,086.00, payable to the Octavia Condominium, which represented 50% of the profits from the sale. The funds were for the benefit of all the unit owners, and no board members received any funds from this transaction. Wong or his entity received the other 50%, pursuant to the Designee Agreement.

The allegations of the complaint:

Plaintiff’s first cause of action is for tortious interference with contract. In this cause of action, plaintiff argues that he entered into a valid contract with the Seller and that defendant improperly and tortiously interfered with the contract by purporting to exercise a right of first refusal and then failing to consummate the sale. Plaintiff believes that the apartment is worth $800,000 and that he has suffered financial harm as a result of defendants’ alleged malicious actions.

Plaintiff’s second cause of action is for fraud. He alleges that he was advised that Seller would be selling the Unit to the Condominium. He states that he relied on the information received that the Condominium would be purchasing the Unit. Had he known that the Board would waive its right to first refusal and that 320 57th Street LLC would be purchasing the Unit, he would have made sure to consummate his contract with the Seller.

Plaintiff claims in his third cause of action that defendants intentionally inflicted harm on plaintiff with their actions.

In his fourth cause of action, plaintiff seeks to have his application fee refunded to him, arguing that his application was not properly reviewed. He states that he should receive his processing fee back since defendants conducted a sham process.

Plaintiff requests a declaration of the respective rights of the parties in his fifth cause of action.

In his sixth cause of action, plaintiff is seeking a return of his financial records which he delivered to defendants in support of his purchase application.

And plaintiff’s claims:

Plaintiff claims that, by exercising its right to first refusal and then waiving its rights, the Board violated the bylaws.  As such, he argues that the notice to exercise the right of first refusal was nullified. He further maintains that the Board violated the bylaws, alleging that it did not purchase the Unit for the benefit of all the owners.

Plaintiff claims that the individual members of the Board were able to profit from this transaction, in violation of the bylaws.  He contends that the designation of 320 57th Street LLC as a designee was an improper attempt to allow an insider to profit from the sale. He summarizes:

“Upon information and belief, the Board of Managers and its individual members, along with their attorneys and managing agent, concocted a scheme to tortiously interfere with Plaintiff and Seller’s contract and defraud Plaintiff whereby it would represent that it was purchasing the unit on behalf of all unit owners and then on the day of the closing waive that right in favor of a third party, 32 0 5 7th Street, LLC.”

As to the claim for tortious interference with contract:

To successfully plead a cause of action for tortious interference with a contract, plaintiff must prove: “(1) the existence of a valid contract, (2) defendants’ knowledge of the contract, (3) defendants’ intentional interference with the contract and a resulting breach, and (4) damages…Applying the law to the case at hand, plaintiff’s claim for tortious interference with a contract fails as a matter of law. In the present situation, plaintiff specifically denied that the Seller breached the contract at issue, which is the one between himself and the Seller. He testified that the Seller, who was also represented by a senior partner in plaintiff’s law firm, in no way breached the contract with him and that the Seller was a “victim” like he was, just without damages…

Moreover, plaintiff cannot establish damages.  Plaintiff’s down payment was returned to him. He testified that he intended to live in the Unit “indefinitely,” and that he had not planned on how long he would reside in the Unit…As such, plaintiff is alleging some future hypothetical sale as a basis for his loss[.]

Despite the lack of breach by the Seller, and lack of damages, plaintiff keeps reiterating that, although the Seller did not breach the Contract, the defendant interfered in such contract with a tortious act. Plaintiff alleges that the Board failed to properly exercise its right of first refusal and, in fact, did not legally exercise it at all, since it was waived on the date of the closing. However…the Board did not commit a tortious act.

And applied the facts to the law:

The Contract between plaintiff and Seller advised plaintiff that his sale was conditioned on the Condominium’s right of first refusal in the manner provided for in the bylaws. The bylaws state that the Board could either purchase the Unit itself or assign a designee for that purpose. Wong, or an LLC formed by Wong, which was 320 5 7th Street, LLC, became that designee. The Board unanimously voted that the designee, or 320 57th Street, LLC would finance and facilitate the exercise of the right of first refusal by purchasing it and then reselling it for the benefit of the unit owners. The Board believed that if the Unit were sold to plaintiff and then not quickly resold, the other units in the building would be devalued, since the plaintiff’s purchase price was well below market value. Pursuant to the designee agreement, the Condominium received a check for half of the proceeds of the sale after 320 57th Street, LLC re-sold the Unit.

Prior to the closing, the Board was required to sign a waiver of the right of first refusal as a condition for 320 57th Street, LLC to receive title insurance. The Condo-defendants entitle this a “ministerial” act, done solely in order to obtain title insurance, which 320 57th Street, LLC needed in order to comply with the Designee Agreement. The designee and purchaser still remained 320 57th Street, LLC, pursuant to the July 25, 2012 Designee Agreement, which set forth the details of the right of first refusal. As defendants stated, the Board had to do this in order to carry out the Designee Agreement and to protect its investment.

There is no indication that the Board failed to comply with the bylaws in furtherance of exercising the right of first refusal in all aspects, including who provided the financing and who became the designee. In any event, plaintiff does not have standing to allege a claim of tortious interference of a contract grounded in the Board’s alleged non-compliance with its bylaws[.]

As to the fraud claim:

Plaintiff states that defendants made material misrepresentations of fact when they delivered the July 25, 2012 notice to exercise the right of first refusal to him. He claims to have relied on the Board’s representations that the Condominium was purchasing the Unit in accordance with the bylaws for the benefit of all unit owners. Plaintiff reiterates that he suffered damages of no less than $500,000.00 as a result of this alleged misrepresentation.

The elements of a fraud claim require a plaintiff to establish the following: “(1) a material misrepresentation of a fact, (2) knowledge of its falsity, (3) intent to induce reliance, (4) justifiable reliance and (5) damages[.]”

There was no false or material misrepresentation by the Board when, after learning about the proposed sale between plaintiff and Seller, it informed the Seller’s lawyer that it would be exercising its right of first refusal.  The Board, acting as an agent of its unit owners, purchased the Unit through a designee, 320 57th Street, LLC.

“[T]he damages incurred by reason of the fraudulent conduct must be actual pecuniary losses.”  As previously indicated, plaintiff cannot establish that he suffered damages. Therefore, as a matter of law, plaintiff’s claim for fraud must fail and· all defendants are granted summary judgment dismissing this cause of action.

And, as to the claim for prima facie tort:

Plaintiff failed to plead facts that are sufficient to support a cause of action for prima facie tort because the allegations do not establish that defendants’ purportedly tortious conduct was motivated by an otherwise lawful act performed with the intent to injure or with ‘disinterested malevolence’…The defendants have shown that the Board was motivated to purchase the Unit for the benefit of all the unit owners, not by disinterested malevolence. As such, all defendants are granted summary judgment dismissing this cause of action.

Proceedings in the Appellate Division:

The First Department briefly summarized the facts:

Plaintiff, who had entered into a contract to purchase a condominium unit from the nonparty seller, commenced this action against defendant Board of Managers of the Octavia Condominium and its members, managing agent and attorneys, alleging, inter alia, that the board intentionally interfered with said contract by improperly purporting to exercise a right of first refusal.

And summarily affirmed:

The motion court properly dismissed plaintiff’s claim, because without an actual breach of the underlying contract, a cause of action for tortious interference with a contract fails[.]

Furthermore, even without the requirement of a breach by the seller, plaintiff’s tortious interference claim fails.  The board properly exercised the right of first refusal, financed the purchase at the original contract price through its designee and ultimately purchased and resold the property for profit, all in accordance with the condominium’s bylaws.  Although a board member was also a member of the board’s designee, the record shows that the board’s action was “taken in good faith and in the exercise of honest judgment in the lawful and legitimate furtherance of corporate purposes[.]”

Bond & Broadway, LLC v. Funding Exch., Inc., 2014 NY Slip Op 33959(U) (December 19, 2014) and 2015 NY Slip 07541(U) (October 15, 2015)

Proceedings in Supreme Court:

The Supreme Court action “[arose] out of the prospective sale of a condominium unit (the “Unit”) in the building located at 666 Broadway, New York, New York by defendant Funding Exchange (“FE”) to plaintiff Bond & Broadway (“B&B”), in which defendant Froggy Associates, LLC (“Froggy”) purported to exercise its right of first refusal to a contract of sale (Contract) as provided for in the condominium by-laws.”

B&B sought “specific performance to require Funding Exchange to convey the Unit and asks this Court to declare that Froggy forfeited its right of first refusal.”

Supreme Court outlined the facts:

FE is a not-for-profit corporation organized under the laws of New York and since 1986 has been the owner of a commercial condominium unit (Unit 5) consisting of the entire fifth floor at 666 Broadway, New York, New York.

The building is governed by a set of by-laws that addresses the rights and responsibilities of unit owners wishing to sell their units, and giving amongst other things, a right of first refusal to the contiguous owners of any unit put up for sale (§7.3 of the By-Laws).

In 2011, FE, as landlord, leased a portion of its Unit to non-party Footsteps, Inc. (Footsteps), as tenant.

On August 12, 2013, B&B entered into a written contract (the Contract) with FE to purchase the Unit for $5,600,000. B&B deposited $560,000 in escrow with FE’s counsel, simultaneously with the Contract’s signing, as provided for in paragraph 3(a) (I) of the Contract[.]

Under paragraphs 40 and 56 of the Contract, B&B is required to purchase the Unit “subject to” the Footsteps lease. Paragraph 56 of the Contract states that “Notwithstanding anything to the contrary contained herein, at Closing the Seller shall convey title to the Unit subject to the Footsteps Lease[.]

Froggy is the owner of Unit 4 in the building located at 666 Broadway, New York, New York, and as such, is a contiguous owner.  Section 7.3(a) of the By-laws requires a Unit owner to notify the contiguous owners of any sale or lease agreement of their Unit:  “Promptly after any Sale or Lease Agreement shall be fully executed, the Unit owner executing the same…shall send written notice thereof to the condominium board and to each Unit Owner contiguous to (i.e. having a common wall, floor or ceiling with) the Unit being sold or leased…which notice shall be accompanied by a photocopy of the fully executed Sale or Lease Agreement, containing all of the terms offered in good faith by the Outside Offeror”.

After receiving said notice of this Contract pertaining to the sale of Unit 5 (as required by the By-laws), on September 11, 2013, Froggy purported to exercise its right of first refusal under section 7.3 of the By-laws by notice. In its notice, Froggy “signifies its intention to take the Property…described in the Sale Agreement [contract] pursuant to the terms thereof” and notifies that it is “ready, able and willing to perform the terms of the option to purchase … pursuant to the terms of the Sale Agreement, and for that purpose is ready, able and willing to deposit…$560, 000 as and for a down payment”…In its notice, Froggy also sought to receive information regarding B&B’s financial abilities to purchase the Unit and a copy of the Footsteps lease.

On September 17, 2013, FE’s counsel informed B&B’s counsel of Froggy’s exercise of its right of first refusal…However, FE did not return B&B’s deposit and continued to hold the money in escrow.

By mid-September, FE and Froggy began to negotiate an obvious amendment to the Contract, to substitute Froggy’s name for B&B as the purchaser, and Froggy raised questions regarding the transaction, such as compliance with the procedure for the sale, notices or, authorizations…FE’s counsel provided the answers to those questions, but repeatedly informed Froggy that the obligation to deposit the down payment was unconditional.

However, by the end of September, Froggy still had not deposited its down payment and FE had still not returned B&B’s deposit.

On October 1, Froggy’s counsel sent the proposed amendments together with a check for $560,00 (the required deposit as required by the Contract) but required that the check not be deposited pending “receipt, review and acceptance of the Footsteps lease”…FE’s counsel thereafter reiterated to Froggy that, by exercising its right of first refusal, it stepped into the shoes of B&B and was therefore obligated to post the down payment, unconditionally. FE’s counsel sent the Footsteps lease to Froggy indicating that it was sent only as a professional courtesy.

On October 4, 2013, Froggy’s counsel finally informed FE’s counsel that it could deposit the check for the down payment. By October 9, 2013, both FE and Froggy had signed the amendment to the Contract. On that date, FE finally returned to B&B its down payment.

The By Laws also provide at §7.3 (C), that the election to exercise the right of first refusal must be made within 15 days of notice of the proposed sale.

B&B brings this action seeking a declaration that Froggy improperly exercised its right of first refusal and therefore forfeited its right to purchase the Unit. As a consequence, B&B seeks the right to purchase the Unit from FE and specific performance.

According to the Court:

The only issue here [was] whether Froggy timely exercised its right of first refusal or, by its failure to do so, forfeited its rights in the Unit. The right of first refusal, as described in §7.3 of the By-laws grants certain of the other unit owners of the building an option to step into the shoes of a prospective buyer and, to substitute the buyer: “The sending of the notice (of the Sale or Lease Agreement]…shall constitute an offer by the Offeree Unit Owner to sell its Unit, together with its Appurtenant Interests…to each Contiguous Owner…upon the same terms and conditions as are contained in such Sale or Lease Agreement [.]”

Noting that:

The holder of the right of first refusal is holder of an option to purchase the real property “if and when the owner decides to sell to a third party at an agreed price”[.]

Before a Unit owner fully executes a sale agreement to convey its property to a third party, notice must be given to the other owners in the condominium. As described in §7.3(B) of the By-laws, the sending of the notice “shall constitute an offer by the Offeree Unit Owner to sell its Unit, together with its appurtenant interest…to each contiguous Owner and the Condominium Board…upon the same terms and conditions as are contained in such Sale or Lease Agreement”…Therefore, the election to purchase the property by one of the holders of the right of first refusal would constitute an acceptance of the offer (created by sending the notice).

“It is a fundamental principle of contract law that a valid acceptance must comply with the terms of the offer…and, if qualified with conditions it is equivalent to a rejection and counteroffer”…In exercising its right of first refusal, the option holder steps into the shoes of the prospective buyer and has an obligation to strictly comply with the contract provisions.

And concluding that:

The holder of an option, by placing a requirement that a building be vacant at the time of transfer, as a condition to his exercise of the option to purchase the building has accomplished nothing more than making a “counteroffer”, which the current owner is free to accept or reject[.]

In this case, the Contract between B&B and FE contained certain specific provisions. By exercising its right of first refusal, Froggy stepped into the shoes of B&B. As a consequence, it takes the Contract as it is and has to comply with all its terms.

The contract expressly states in paragraphs 40 and 56 that the sale is subject to the Footsteps lease…However, after stating its intention of exercising its option, Froggy made several references to the need for approval of the Footsteps lease as a condition to going forward with the purchase. This appears to be conduct not in conformity with Froggy’s obligations with respect to the contract. By conditioning Froggy’s consummation of the contract to the “receipt, review and acceptance” of the lease, Froggy effectively made a “counteroffer”[.]

As a consequence, when Froggy refused to make the unconditional down payment, a question arises as to whether it effectively exercised its right of first refusal and entered the contract “upon the same terms and conditions as are contained in such Sale or Lease Agreement”[.]

Furthermore, the Contract required in paragraph 3(a) (I) that the down payment be deposited and paid simultaneously with the signing of the Contract. Because the By-laws require the holder of the right of first refusal to strictly comply with the terms of the Contract, Froggy had to deposit the down payment. However, in spite of several requests by FE’s counsel, Froggy did not simultaneously deposit the down payment upon execution. Froggy first sought to exercise its option on September 3, 2013, but without a down payment. On October 1, 2013, when Froggy finally sent a check to FE’s counsel, it was accompanied by a condition that it be held pending “receipt, review and acceptance of the lease”. Not until a letter dated October 4, 2013, did Froggy finally inform FE that it could deposit the down payment…This was clearly more than 15 days after notice of the pending sale to B&B.

By its October 1, 2013 letter, in which Froggy sent the signed amended Contract to FE, but not agreeing to the immediate deposit of the down payment, the issue arises as to whether Froggy complied with section 3(a) (I) which states that the down payment is payable “on the signing of this Contract by check subject to collection, receipt of which is hereby acknowledged, to be held in escrow[.]

However, as stated above, at some point, Froggy finally did agree to make the down payment. In light of the foregoing, this Court finds the remedy of summary judgment to any of the parties to be unwarranted. There are triable issues of fact this Court must consider in order to determine if and when Froggy’s actions finally constituted its exercise of the right of first refusal.

Proceedings in the Appellate Division:

The First Department modified, on the law “to grant defendant Funding Exchange, Inc.’s motion for summary judgment dismissing the complaint and all cross claims as against it, and to grant defendant Froggy Associates, LLC’s motion insofar as it sought a declaration that Froggy validly exercised its right of first refusal to purchase Unit 5 of the 666 Broadway Condominium[.]”

Holding that:

Defendant Froggy gave notice that it elected to purchase the subject unit in full compliance with the condominium’s by-laws governing the manner in which the right of first refusal was to be exercised…It was not required simultaneously to make a 10% down payment, a term of the contract of sale between defendant Funding Exchange and plaintiff.  Froggy would be bound by the requirement to make a 10% down payment only after entering into a contract of sale with Funding Exchange on the same terms and conditions (pursuant to the by-laws) as the contract between Funding Exchange and plaintiff, and plaintiff would have no standing to sue for breach of that contract.

Nor did Froggy’s post-notice request for the lease between Funding Exchange and its tenant render its notice an impermissible counter-offer[.]

Lesson learned:  A condominium board, upon exercising a right of first refusal, must ensure that it exercises the option in good faith; meticulously follows the applicable by-laws; and religiously adheres to the terms of the third-party offer to purchase.

Comments are closed.