In certain lease agreements we see a right of first refusal to purchase the leased property (voorkeursrecht tot koop van het gehuurde object), to the benefit of the tenant. Disputes may arise between the tenant and the landlord if it is unclear whether a transaction triggers the provision.
Such a dispute occurred between a famous Dutch warehouse (the tenant) and its landlords. Five parallel proceedings regarding the warehouses in Rotterdam, Amsterdam, Eindhoven, Maastricht, and The Hague were initiated by the tenant. On 19 September 2018, the District Court of Rotterdam (rechtbank Rotterdam) rendered a decision as to whether a right of first refusal could be triggered regarding the warehouse and accompanying parking garage in Rotterdam.
A right of first refusal to purchase leased property (RoFR) typically prohibits the landlord from selling the leased property to a (third) party without offering the leased property first to the tenant. The conditions of such offer to the tenant should be equal or more favorable than those of the offer to the potential purchaser. Due to the importance of the RoFR and by way of incentivizing the landlord to adhere to this obligation, violation of the RoFR is usually subject to a substantial contractual penalty. The lease agreement would normally also contain provisions regarding the offering procedure (if the RoFR is triggered), the scope of the RoFR, and any other relevant conditions.
In the underlying case before the Rotterdam court, the tenant previously was the owner of all its warehouses in the Netherlands until 2005. In that year, the warehouses were sold by way of a “sale-and-leaseback” transaction to the new (ultimate) owner (the Investor), the sole shareholder of several companies (the Propcos), which were also party to the transaction. The lease agreements entered upon this sale-and-leaseback each contained a RoFR. The scope of the RoFR extended to any legal actions that would have the same material effect as a direct sale of the properties.
After restructuring its real estate portfolio, the Investor’s ownership of the warehouse and parking garage in Rotterdam can be visualized as follows:
In 2017, the Investor sold all shares in the capital of the Holding to a consortium of purchasers. The conditions of the sale and transfer were laid out in a share purchase agreement. As a result of the transaction, (ultimate) ownership of the warehouse and parking garage was transferred from the Investor to the consortium. However, the relevant Propcos remained as direct owner of the warehouse and the parking garage, and therefore as landlord.
The tenant brought proceedings before the District Court, arguing the transaction triggered the RoFR and therefore the warehouses should have been offered for purchase directly to the tenant (as opposed to an offer of shares of the ultimate holding company).
The District Court of Rotterdam ruled that the RoFR was not triggered and there was no obligation to offer the properties directly or indirectly via shares to the tenant. It substantiated its verdict as follows:
The RoFR is unclear and should be interpreted in accordance with the general rules under applicable Dutch law regarding interpretation. It is well-established case law in the Netherlands that, as a principle, the wording of an agreement is the starting point to interpret an agreement and any provision therein, but ultimately the parties’ intent is decisive (the so called Haviltex doctrine). However, the court ruled that a more literal interpretation of the RoFR should be applied in this case in light of:
- the capacity of the parties (being commercial parties);
- the fact that the parties hired professional advisors to negotiate and draft the lease agreement; and
- the fact that the current landlord is a different party than the initial landlord. Hence, the current landlord could not have been aware of the initial landlord’s intent.
The court ruled that the RoFR only applies in case of a direct sale by the Propcos, meaning only in case of a change of identity of the landlord. According to the court, any transaction entered by another (related) party is irrelevant. If the parties intended for the RoFR to cover any other transaction, such as the sale of the shares of the (ultimate) holding company, they should have made this explicitly clear in the lease. The change of the (ultimate) owner is legally and factually different than the sale of the properties by the Propcos.
The court also found it plausible that the parties intended to exclude the disputed transaction from the RoFR; otherwise, the RoFR could very well have lowered the value of the real estate portfolio. Moreover, neither the Investor nor the Propcos have taken any actions that might frustrate the tenant’s rights, according to the court. Therefore, the court dismissed all claims by the tenant.
If an RoFR is intended to extend to an indirect sale of a leased property, this should be explicitly stated. To effect such RoFR, the (ultimate) shareholder of the landlord should assume the obligations under the RoFR, for example by way of co-signing the lease agreement.