Real Property Law

Jennifer Codding
Strategic Litigator and Senior Counsel
Massey Law Group Tampa, FL

June 25, 2019

Reversed and remanded

  • Issue: Whether, pursuant to language in a Lease Renewal and Purchase Option agreement, property owner was required to list property for sale before lessee’s preemptive rights to purchase the property were triggered.

The case concerns an agreement for lease of property in Gilford that included certain preemptive purchase rights (the “Agreement”). Greenwald asked for determination of proper interpretation of the Agreement, whether it had been breached, and who may be held liable. On cross-motions for summary judgment, the lower court ruled in favor of Keating. The Supreme Court reversed and remanded.

Keating owned property in Gilford. In 2015, Keating listed the property for sale. Greenwald approached Keating regarding renting the property. Keating agreed to lease the property to Greenwald, take the property off the market and give Greenwald preemptive rights to purchase should Keating decide to re-list, and apply 1-month’s rent to the purchase price. A realtor drafted the agreement which set forth that in the event Keating intended to re-list the property, Greenwald would have the first option to purchase. Further, in the event Greenwald did not exercise the first option, and the property was listed for sale, but Greenwald maintained an interest in the future purchase of the property as presented in writing, Greenwald had a right of first refusal to purchase.

Also in 2015, the Uickers approached Keating regarding purchasing the property, despite the fact it was not on the market. Keating accepted their offer and sold the property. When Greenwald discovered the sale, Greenwald sued for specific performance, damages for breach of contract, and tortious interference by a real estate broker.

On appeal, the Court determined that central to the trial court’s decision was the interpretation of the Agreement. The trial court held that the Agreement unambiguously required that Keating intend to list the property for sale, not merely intend to sell it, before Greenwald’s rights were triggered. The court also concluded that the Agreement was unenforceable because it did not include the purchase price, which was an essential term. As for the right of first refusal, the trial court held that the provision was triggered only if Keating accepted an offer to purchase made by a third party after Keating had listed the property for sale. Thus, the trial court ruled that no breach occurred because the triggering condition of listing the property for sale was never met. The Court concluded that because the meaning of the Agreement was ambiguous concerning whether listing the property was intended to be ministerial or substantive, the trial court erred in resolving this issue on summary judgment. Further, the Court agreed with Greenwald that the trial court erred in summarily concluding that Barbara Keating could not be held liable under the Agreement because she held no ownership interest in the property and could not otherwise be chargeable as an agent.

 

Hinckley, Allen & Snyder, of Manchester (Christopher H.M. Carter and Jamie S. Myers on the brief, and Mr. Carter orally), for the plaintiffs. Steiner Law Office, of Concord (R. James Steiner on the brief), and Haughey, Philpot & Laurent, of Laconia (Samantha M. Jewett orally), for defendant Barbara Keating. Haughey, Philpot & Laurent, of Laconia (Samantha M. Jewett and William Philpot, Jr. on the brief, and Ms. Jewett orally), for defendants Barry and Chrysoula Uicker. Shaheen & Gordon, of Concord (Karyn P. Forbes and Alexander W. Campbell on the brief), and Haughey, Philpot & Laurent, of Laconia (Samantha M. Jewett orally), for defendant Ellen Mulligan. Hage Hodes, of Manchester (Douglas J. Miller and Katherine E. Hedges on the brief), and Haughey, Philpot & Laurent, of Laconia (Samantha M. Jewett orally), for defendant Jill Keating.