Overall, the right of first refusal is similar to the notion of a call option. Call option contracts (also known as lease options) give the buyer the right to purchase the land for a certain period of time, and it may be subject to certain triggering events. If a certain event occurs, the buyer has the unlimited right to acquire the property. If and when the option or right is exercised, the price of the property will be subject to tax on the rate applicable to the total price in addition to the price of the option (or right). The price to be paid may be one of the most controversial parts of the option agreement. Even if the parties agree on how the price is calculated, the following points should be considered and documented: pre-emption agreements do not have to be concluded in writing, although it is advisable to do so. In the context of a pre-emption contract, the contact only intervenes when the triggering event occurs and the holder can then submit his offer to purchase. The landowner must then accept it and, at this stage, the contract must be concluded in writing. There are also different tax implications of call options and pre-emption contracts, so it is advisable to seek professional advice during negotiations. However, an option contract is not binding for more than 21 years from its date.
The parties should consider whether there are circumstances in which the agreement should be terminated prematurely. An option, a right of first refusal and a conditional contract are all “contracts of succession” in the law and can be registered against the land to make the land inalienable without clearing it in any way. The consequence of these provisions is that a corporation cannot allocate shares to new shareholders until it has offered them to its existing shareholders. The company must give shareholders at least 14 days to decide whether or not to buy the shares. Private companies, and sometimes public companies, may choose not to apply or modify legal subscription rights, either in general or in connection with a particular allocation (sections 569 to 573 of the Companies Act 2006). The landowner should be aware that a potential buyer may be discouraged from investing in the due diligence of the property if they are informed that another party has a right of first refusal (which is evident in the land registry documents). To remedy this, the landowner could provide a seller`s due diligence report to potential buyers. The provisions on timing should be carefully considered from the point of view of practicability. If the owner decides to dispose of the property during the subscription period, he must send the holder of the subscription right a notification of offer within a certain period.
There will then be a period within which the holder of the subscription right can assign a notice of acceptance. Under a pre-emption agreement, the buyer has the right to be the first in line to buy land if the owner decides to sell during the purchase period. The following points should be noted: Options and pre-emption rights are very useful if you now want to set up a land purchase mechanism in the future. If the condition becomes complicated or if other agreements are needed in addition to the condition, the agreement becomes more of an option and an option agreement is more appropriate. It is important to be clear about when the obligation to sell/buy at a certain price becomes binding on the parties, and this (and other points) are often worth discussing with a lawyer at the stage of heads of conditions. .