Legal Question in Real Estate Law in California
Right of First Refusal
In 1987 a document drafted between ex-husband/wife stated very simply that if either party decided to sell their property the other party will have the first right of refusal. That is ALL it says, nothing more..PERIOD.
The ex husband sold his first and gave his ex wife a written notice, with very limited terms of offer, and gave her exactly 4 days to respond. When she wrote back and asked for more information the attorney wrote her back saying they did not need to provide anything further and she did not have the financial ability to purchase, therefore he considered her letter a defacto rejection. The ex wife did not know what to do, so time passed. 3 years later she sells her property and provides him the same notice, except she gives him a copy of the offer, copies of all reports, etc. His attorney wrote back stating that they needed more time and the name of the buyers. More time was given. Finally after almost a month of waiting the ex wife told the ex husband it's too late..he said he was going to exercise his right. SO, she waited another week for money, and no money came in. She proceeded with the transaction and now, weeks from closing he slapped a lis pendens on the property saying he was denied his right. HELP
2 Answers from Attorneys
Re: Right of First Refusal
The only way one can record a lis pendens is if a lawsuit has been filed by one claiming they are entitled to ownership of a particular piece of property. If a lis pendens has been recorded, you are being sued. The law in this area can be very complex, and I suggest you immediately contact a real estate lawyer in your area.
It's not clear from your question whether escrow has already closed or whether escrow is to close in the future. If escrow has not yet closed, the recordation of a lis pendens will prevent the closing. Unfortunately, there may not be enough time for your to remove the lis pendens (even if there is a basis to do so), but you nevertheless MUST discuss this with an attorney, and provide that attorney with every document in your possession that relates to your agreement with your ex-husband, your communications with your ex-husband and his attorney(s), and the property in question.
Re: Right of First Refusal
If a lis pendens has been recorded, then a lawsuit must have been filed. (Lis pendens are issued by the court, only when an existing lawsuit is on file.)
It would be necessary to review all of the underlying documents to ascertain the ex-wife's rights. The divorce/settlement agreement may be relevant as well. The ex-wife's conduct three years ago is probably not relevant to today's issue. The written documents, especially those evidencing communication between ex-wife and ex-husband, related to the current transction will be most relevant to ascertaining the rights of both parties.
At any rate, because a lawsuit has been filed, the ex-wife can expect to be served any day. I would expect that the new lawsuit alleges breach of contract as well as specific performance (i.e. the ex-husband seeks to force the ex-wife to sell him the property); it likely also seeks to impose a constructive trust over the house.
The ex-wife needs to get herself to an attorney familiar with this very complicated area of the law.
We are real estate litigators with extensive experience prosecuting and defending disputes arising out of residential and commercial real estate transactions. If you would like a no charge consult, please let us know. We would need to review all relevant underlying documentation.
Good luck.
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