Right of First Refusal, Statute of Limitations

[tranquility]

It is amusing to see how people that don't know an answer to something come up with questions of their own, attack the OP etc. all to cover their own inadequate ability's. Perhaps some of you are here because you weren't good enough to actually become attorneys. Living the life via the keyboard. Reminds me of the movie, "catch me if you can" but of course he was intelligent. You people have fun BS-ing those who come on here for advice that have no means of hiring real legal help. Pathetic at best.

By the way, the Statute is 6 years from the date of the breach of contract. There, now you will know in case someone else asks the same question. Now, wasn't that simple.

Actually, the Colorado Supreme court was working on 1 year or 18 year claim, depending on the facts. Why in the world would you be claiming 6? You show me yours and I'll show you mine. Funny how simple minds think things are simple.

 

[Zigner]

By the way, the Statute is 6 years from the date of the breach of contract. There, now you will know in case someone else asks the same question. Now, wasn't that simple.

Now you just have to have your attorney tell you the date it was breached.

 

[Proserpina]

It is amusing to see how people that don't know an answer to something come up with questions of their own, attack the OP etc. all to cover their own inadequate ability's. Perhaps some of you are here because you weren't good enough to actually become attorneys. Living the life via the keyboard. Reminds me of the movie, "catch me if you can" but of course he was intelligent. You people have fun BS-ing those who come on here for advice that have no means of hiring real legal help. Pathetic at best.

By the way, the Statute is 6 years from the date of the breach of contract. There, now you will know in case someone else asks the same question. Now, wasn't that simple.

You can leave now.



Don't forget to pick up your refund.

 

[tranquility]

No, no, no, don't leave; just show us the basis for your simple answer. We shall base our theory of your intelligence on the value of your resource.

 

[Zigner]

I find it funny that our own inadequate abilities still allow us to spell abilities correctly

It's the whole glass house thing.

 

[tranquility]

I find it funny that our own inadequate abilities still allow us to spell abilities correctly

It's the whole glass house thing.

Being a person who is spelling-impaired, I simply cannot get behind your statement. I had to check twice before making my statue/statute joke thinking the thing I must have misspelled was actually the thing I meant. (Please, for all that is Holy, don't start me on my punctuation or grammar issues either.) Sure, I can monkey out a pretense of correct Engrish, that ain't make it so.

 

[Zigner]

Being a person who is spelling-impaired, I simply cannot get behind your statement. I had to check twice before making my statue/statute joke thinking the thing I must have misspelled was actually the thing I meant. (Please, for all that is Holy, don't start me on my punctuation or grammar issues either.) Sure, I can monkey out a pretense of correct Engrish, that ain't make it so.

It's not the spelling error - it's the irony relating to the gloating about our inadequacies. I'm a decent speller, but I fully recognize that I make mistakes and others make mistakes.

 

[latigo]

What is the name of your state (only U.S. law)? Colorado

I recently discovered, quite by accident, that a piece of property I held a "right of first refusal" on was sold. Under the terms of the "right of first refusal" if an offer was ever made on that property I was to be notified in writing, given a copy of the offer, and then I would have 15 days in which to purchase the property myself at the exact same terms of the offer that was acceptable to the seller or I could just say no. The "right of first refusal" is recorded at the county court and I am surprised the title company missed that, as it is an encumbrance on that property.

I had no idea this property had been sold. The legal contract (right of first refusal) has been violated and my only choice at this point is to file a lawsuit against the seller to be able to enforce my right of first refusal. I choose to purchase the property under the same terms it was sold.

My question is this: What is the statute of limitations I am under, to file a lawsuit ? Also, when does the statute of limitations begin? Is it when I discovered the sale or is it when the sale actually took place ?

Thank you for your input in advance.

Fred

Your cause of action would be for breach of contract. And all actions based upon contract in the State of Colorado are subject to a 3-year period of limitations. Colorado Revises Statutes Section 13-80-1-101 (1) (a).

The three years commences to run concurrent with the date the breach occurred. Not when the affected party discovered the breach. (Court's don't baby sit contracting parties.)

If otherwise, it would be tantamount, for example, with the holder of past due promissory note urging the court to extend the 3-year period because he forgot to mark his calendar.
___________________

But I’m curious as the nature of the damages you intend to seek.

If the seller foolishly sold it substantially below market value, you might have a damage claim for the loss of the bargain.

If you are to claim that it had some personal intrinsic value, you might have trouble explaining why you sold it in the first place. And why did you?

Also, what consideration passed to your purchaser - and now seller - to bind the agreement?

 

[tranquility]

Your cause of action would be for breach of contract. And all actions based upon contract in the State of Colorado are subject to a 3-year period of limitations. Colorado Revises Statutes Section 13-80-1-101 (1) (a).

The three years commences to run concurrent with the date the breach occurred. Not when the affected party discovered the breach. (Court's don't baby sit contracting parties.)

While under certain facts this may be correct, the Colorado Supreme court brings in different thoughts (without completely deciding). Since class has probably already started or it's too late to change the OP's paper:
Atchison v. City of Englewood, 568 P.2d 13 (1977)
With some facts of:

The Atchisons caused the preemptive rights agreement containing the above paragraph to be recorded by the Arapahoe County Clerk and Recorder on January 25, 1949.
After sale of the ranch and water rights to the City, the Atchisons remained in possession of the ranch pursuant to the January 3, 1949, agreement until March 1, 1950, at which time they leased the ranch from the City for a five-year term. Prior to expiration of that five-year term, however, the City claimed that the Atchisons had breached this lease and purported to cancel it by serving a Notice of Termination of Lease on the Atchisons on September 25, 1951. Among other things, this notice stated that thirty days after service of the notice, the Atchisons would have "no right, title, claim or interest in and to the premises. . .."

The SOL non-decision read:

C. Statute of Limitations.
Appellee ****** contends that all of the Atchisons' alternative equitable claims, including claims for reformation and specific performance, for rescission, and for damages in lieu of specific performance, are barred by the one-year statute of limitations governing restrictions on property. C.R.S.1963, 118-8-4.[7] The Atchisons argue that the eighteen-year statute of limitations, pertaining "to actions to enforce or establish any right or interest of or to real property," is applicable to their equitable claims. Section 38-41-101, C.R.S.1973.
During November, 1966, the Atchisons learned through the local newspapers that the City was in the process of selling the property to ******. In March, 1967, less than five months after learning about the 20*20 proposed sale, the Atchisons commenced a declaratory judgment action to establish the validity of their preemptive rights.
It is unnecessary for us to decide this issue since neither statute of limitations ran to bar the action. The City failed to give the Atchisons notice, as required by the preemptive rights agreement, prior to granting ****** the option to buy in 1956. Hence ****** took its rights subject to the recorded preemptive rights agreement, and the Atchisons' preemptive rights were in full force and effect at the time of the 1966 sale.[8] At no time did the City give notice to the Atchisons nor seek from them a waiver, consent or release. The City's failure to give the Atchisons notice and an opportunity to purchase, pursuant to the preemptive rights agreement, constituted a breach of that agreement,[9] and therefore, no statute of limitation could have commenced running until the Atchisons had notice of the breach.
****** further contends that the declaratory judgment action was ineffective to toll the statute of limitations on the Atchisons' equitable claims. In the declaratory judgment action, the Atchisons sought a declaration that they had valid preemptive rights. This action was sufficient to preserve other remedies arising out of those preemptive rights. As we said in the second Atchison case,[10] addressing a res judicata argument,
"Plaintiff, through his counsel, can be convinced that a contract is valid and, in a declaratory judgment action, seek a declaration of validity. It seems to us a bit incongruous to require that, when he takes this action, he must also plead all sorts of other remedies in order to protect himself in the event that he loses as to the validity of the contract." 180 Colo. at 413, 414, 506 P.2d at 143.
This reasoning applies in the present statute of limitations context just as it did in the res judicata context. We conclude that the plaintiffs' claims do not violate the statute of limitations.

With remedies of:

F. Appropriate Remedy.
Of the approximately 2,500 acres of land which the Atchisons sold to the City, approximately 2,428 were sold by the City to ****** in violation of the Atchisons' preemptive right to buy. ****** paid $427,905.86 for this acreage. Approximately 1,034 acres of the land conveyed to ****** was subsequently condemned by the United States of America.
Where a right of first refusal is ignored and property held subject to it is sold to a third party without first giving the holder of the preemptive right notice and an opportunity to buy, the holder of the preemptive right is entitled to relief. Barling v. Horn, 296 S.W.2d 94 (Mo.1956); Hill v. Zuckerman, 138 Mont. 230, 355 P.2d 521 (1960), cert. denied, 365 U.S. 813, 81 S.Ct. 695, 5 L.Ed.2d 693 (1960); Lowell v. First Church of Christ, Scientist, 101 N.H. 363, 143 A.2d 671 (1958). In cases of the type just described, specific performance may be an appropriate remedy. Moreno v. Blinn, 81 Cal.App.2d 852, 185 P.2d 332 (1947); Harper v. Runner, 85 Neb. 343, 123 N.W. 313 (1909); Annot., Option to Purchase at Price Offered to Optionor by Third Person, 136 A.L.R. 138, 147 (1942); see also Stanton v. Union Oil Co. of California, 111 Colo. 414, 142 P.2d 285 (1943) and Strachan v. Drake, 61 Colo. 444, 158 P. 310 (1916). Specific performance of a contract for the sale of land is generally granted even though the injury resulting from nonperformance is compensable in damages. White v. Greenamyre, 77 Colo. 33, 234 P. 164 (1925).
In view of these authorities specific performance would be an appropriate remedy in this case were it not for the fact that intervening circumstances have rendered it impracticable. Since a very substantial portion of the property has been condemned, we hold that damages in lieu of specific performance are recoverable. Prosser v. Schmidt, 118 Colo. 502, 197 P.2d 318 (1948); McCart v. Johnston, 79 Colo. 397, 246 P. 259 (1926); Carlsen v. Hay, 69 Colo. 485, 195 P. 103 (1921); Mullen v. McKim, 22 Colo. 468, 45 P. 416 (1896).
Where damages are awarded for breach of an option to purchase, whether the option price is fixed or dependent on the price offered by a third party, the measure of damages is the difference between the market value at the time of breach and the option price. Baker v. Ellis, 244 Ill.App. 330 (1927); Kritz v. Moon, 88 Ind.App. 5, 163 N.E. 112 (1928); Perle v. National Fertilizer Co., 224 App.Div. 70, 229 N.Y.S. 339 (1928). See also Minshall v. Case, 148 Colo. 12, 364 P.2d 868 (1961).
Here, the contract was repudiated by the City when it sold the property to ****** on November 8, 1967.[13] Because we have held that ****** took the property subject to the Atchisons' rights, the defendants are liable to the Atchisons for the difference between the market value of the land on November 8, 1967, and the amount that ****** paid for the property, together with interest as provided by law.

 

[tranquility]

As to the "SOL" regarding adverse possession I mentioned, Peters v. Smuggler-Durant Mining Corp., 930 P. 2d 575 has a far more convoluted set of facts, but the relevant one to our discussion:

Golden Rule Resources, Inc. (Golden Rule), a respondent in this case, became the successor in interest to the original lessee of a mining lease owned by Smuggler-Durant Mining Company (Smuggler-Durant). The lease granted Golden Rule the right of exclusive possession to the real property and the right of first refusal to purchase the property. Three cabins, the ownership of which is the source of this litigation, are located on the property.

With a relevant holding (and a comparison of state statutes issue) of:

Sections 38-41-108 and -109, 16A C.R.S. (1982), of our adverse possession statutes are parallel provisions and must be considered in relation to each other. Webermeier v. Pace, 37 Colo.App. 546, 549, 552 P.2d 1021, 1024 (1976).
Section 38-41-108 is applicable when a person is in actual possession of land or tenements under color of title. Section 38-41-109 is applicable when a person has color of title to vacant or unoccupied land. Our appellate courts have construed the color of title and tax payment requirements under these separate provisions in an interchangeable manner.
In Empire Ranch & Cattle Co. v. Howell, 22 Colo.App. 584, 126 P. 1096 (1912), rev'd on other grounds, 60 Colo. 192, 152 P. 1177 (1915), the court of appeals, in construing the predecessor to section 38-41-109, stated "[t]hat seven full years must elapse between the date of the first payment of taxes and the commencement of the suit is sustained by a long line of decisions made by the Supreme Court of Illinois, from which we borrowed our statute." Id. at 600, 126 P. at 1101. The court then cited to several Illinois cases decided prior to the enactment of our statute in 1893. Cases cited construed the Illinois equivalent of our section 38-41-108, which requires actual possession in addition to color of title and payment of taxes. See, e.g., Lyman v. Smilie, 87 Ill. 259, 260 (1877); Clark v. Lyon, 45 Ill. 388, 391 (1867); Dickenson v. Breeden, 30 Ill. 279, 291 (1863); but see Lara v. Sandell, 52 Wash. 53, 100 P. 166, 580*580 167 (1909) ("The only requirement of [this] section is that the adverse possession shall be continued for seven years, and the occupant shall pay all taxes legally assessed during that time.").
In another case construing the predecessor to section 38-41-109, the court of appeals again reiterated the requirement that seven full years must elapse between the date of the first tax payment after color of title is taken and the commencement of the suit to recover the land. Cristler v. Beardsley, 25 Colo.App. 369, 371, 138 P. 68, 69 (1914); see also Evans v. Howell, 23 Colo.App. 219, 219-20, 128 P. 879, 880 (1912). In Cristler, six years, eleven months, and three days had passed between the first tax payment and the date of commencement of the suit, and the court stated that "the statute of limitations had not so operated as to ripen the title in the appellee at the time suit was brought." Cristler, 25 Colo.App. at 371, 138 P. at 69.
Finally, in Whitehead v. Bennett, 92 Colo. 549, 22 P.2d 168 (1933), although ultimately a case dealing with sufficiency of the evidence as to tax payments, we nonetheless stated, in discussing the requirements of the predecessor to section 38-41-108, that "[t]o invoke successfully the provisions of that section, one must prove the payment of taxes for the full period of seven years next prior to the commencement of the suit." Id. at 550, 22 P.2d at 168.
In reviewing the case law addressing our seven-year adverse possession statute, in conjunction with the construction given the same statute by the Supreme Court of Illinois, we conclude that color of title, possession, and payment of taxes must concur in time to trigger the running of the statute. Because seven full years had not elapsed between Peters' first payment of taxes on September 27, 1983, and the commencement of the quiet title action on February 22, 1990, his cause of action under section 38-41-108 must fail.
Statutes that are in derogation of property rights, as with other rights under the common law, must be strictly construed. Cf. Van Waters & Rogers, Inc. v. Keelan, 840 P.2d 1070, 1076 (Colo.1992) (Stating that statutes in derogation of common law must be strictly construed); see also 3 Am.Jur.2d Adverse Possession § 1 (1986) ("The acts of one claiming title by adverse possession are to be strictly construed."). This conclusion comports with the general notion that the doctrine of adverse possession, because it may act to deprive true and legal owners of their property, should be applied in strict compliance with statutory requirements. See 10 Thompson on Real Property § 87.01 (Thomas ed. 1994) ("It is presumed that possession is subordinate to the title of the true owner and adverse possession against such owner must be taken strictly."). Accordingly, in construing our adverse possession statute, the seven year statute of limitations does not begin to run until all three elements of the statute are met.
Hence, although Peters satisfied the color of title and the actual possession requirements, he failed to comply with the final element of having a full seven years elapse from the first payment of taxes to the commencement of the lawsuit.

 

[Fred Barnes]

Good news. My attorney has secured me an completely NEW ROFR on the property and worded the way I wanted it worded in the first place. Good for 21 years. He also got me a ROFR on an adjacent piece of property so all the problems have now been solved. The current owner of the property that I once owned has talked with me and we actually have a dinner date tomorrow evening. She is a very nice lady. No one can ever buy the property now without my permission or unless I decline to buy it under the exact terms of any offer she may get in the future. So, fawk all ya'll wannabee attorney's on this pathetic site. Oh, and by the way, Federal case law does put the Statute of Limitations on the breach of contract at six years.

 

[nextwife]

Good news. My attorney has secured me an completely NEW ROFR on the property and worded the way I wanted it worded in the first place. Good for 21 years. He also got me a ROFR on an adjacent piece of property so all the problems have now been solved. The current owner of the property that I once owned has talked with me and we actually have a dinner date tomorrow evening. She is a very nice lady. No one can ever buy the property now without my permission or unless I decline to buy it under the exact terms of any offer she may get in the future. So, fawk all ya'll wannabee attorney's on this pathetic site. Oh, and by the way, Federal case law does put the Statute of Limitations on the breach of contract at six years.

So, are you RECORDING your ROFR in the public record this time, so any party who might buy in the future would be expeceted to be able to know about it? You can't rely upon the contracted party remaining well and competent enough to be able to TELL someone selling on their behalf about this agreement. If the owner has a stroke tomorrow, and their financial quardian sells the house, they won't necessarilly even KNOW about the agreement. Same thing if it is, heaven forbid, their estate that is selling. All such agreements should be put of record against the real estate so they cannot so readily be bypassed.

 

[tranquility]

Good luck, you silly son of a gun, since I gave the precise law from the Supreme Court of your state, I'd love to see how "federal law" law overcomes it.

When studying such matters, *I* learned state law is the key in both probate and property matters. Maybe your attorney has some super-secret way to make federal law the key here. Have a wonderful time! If everyone agrees, no one will litigate the issue...so, you WIN.