A right of first refusal in a Florida commercial lease is only as strong as its wording. A court looks at whether the clause clearly says when it applies, what the holder must match, and how the holder responds. This guide answers common questions about the right of first refusal commercial lease Florida rules that tenants and landlords in Tampa, Hillsborough County and Tampa Bay face. Eduardo A. Maura is the lawyer responsible for this page. Ayala Law PA focuses on business, commercial and real estate litigation. Its only office is at 1646 W Snow Ave in Tampa.
What a Right of First Refusal Does in a Commercial Lease
A right of first refusal, or ROFR, lets its holder match a third party’s offer before the owner sells the property or the lease interest moves to someone new. The holder doesn’t have to buy or lease. The holder only gets the chance to take the deal on the same terms.
An option is different. It is a fixed right to buy or extend on terms written into the contract. It doesn’t wait for a third-party offer.
Commercial leases use ROFRs in four common settings:
- Expansion space in the same building
- An adjacent unit
- A sale of the building
- An assignment of the lease
Each setting tests a different question. A building sale tests what the owner owes the holder. An assignment tests whether the tenant can move its lease without offering the right first. The lease wording answers both.
The Short Answer: Are These Clauses Enforceable in Florida?
A right of first refusal can be enforced in Florida when the contract clearly states its essential terms.
The Florida Supreme Court has held that a contract, even an oral one, needs an offer, acceptance, consideration and sufficient detail on essential terms. St. Joe Corp. v. McIver sets out that rule.
Florida’s Third District Court of Appeal has added that the parties must agree on every essential term. If they are still negotiating those terms, there is no meeting of the minds. Sandalwood v. Estevez states: “It is well established that a meeting of the minds of the parties on all essential elements is a prerequisite to the existence of an enforceable contract, and where it appears that the parties are continuing to negotiate as to essential terms of an agreement, there can be no meeting of the minds.”
The court in Basulto v. Hialeah Automotive concluded that both the procedural and substantive aspects of unconscionability must be present, although not necessarily to the same degree, and both should be evaluated interdependently rather than as independent elements. Basulto v. Hialeah Automotive requires both procedural and substantive unfairness, weighed together, before a court refuses to enforce a term.
Three questions usually decide the matter. Is the trigger clear? Are the matching terms defined? Is the process for exercising the right workable? Two clauses that look alike can get different results, because one fills those gaps and the other leaves them open.
Drafting Elements That Determine Whether the Right Holds Up
The trigger, the matching terms, the notice rules and the scope of the right decide most disputes.
- Trigger: Name the event, such as a bona fide third-party offer, a signed offer to purchase, or a proposed assignment. State what does not count, like an informal inquiry.
- Matching terms: Price is the easy part. Bundled items such as rent abatement, improvement allowances or operating-cost terms need a stated method for matching.
- Notice and response: Say how notice is delivered, what it must contain, and how many days the holder has to answer.
- Scope: List the property, units and transfers covered. Say whether transfers to affiliates or related parties count.
Florida’s conveyance statute also sets a signing rule. Fla. Stat. § 689.01 requires two subscribing witnesses for most instruments that create a real property interest longer than one year. Fla. Stat. § 689.01 reads: “unless by will and testament, or other testamentary appointment, duly made according to law; and no estate or interest, either of freehold, or of term of more than 1 year, or any uncertain interest of, in, to, or out of any messuages, lands, tenements, or hereditaments, shall be assigned or surrendered unless it be by instrument signed in the presence of two subscribing witnesses by the party so assigning or surrendering, or by the party’s lawfully authorized agent, or by the act and operation of law; provided, however, that no subscribing witnesses shall be required for a lease of real property or any such instrument pertaining to a lease of real property.” Under Fla. Stat. § 689.01, an estate or interest in real property that is a freehold or a term of more than one year must generally be created or transferred by a written instrument signed in the presence of two subscribing witnesses, but no subscribing witnesses are required for a lease of real property or for any instrument pertaining to a lease of real property. Fla. Stat. § 689.01 reads: “unless by will and testament, or other testamentary appointment, duly made according to law; and no estate or interest, either of freehold, or of term of more than 1 year, or any uncertain interest of, in, to, or out of any messuages, lands, tenements, or hereditaments, shall be assigned or surrendered unless it be by instrument signed in the presence of two subscribing witnesses by the party so assigning or surrendering, or by the party’s lawfully authorized agent, or by the act and operation of law; provided, however, that no subscribing witnesses shall be required for a lease of real property or any such instrument pertaining to a lease of real property.”
Duration, Perpetuity Limits, and Recording Questions
A right of first refusal should state how long it lasts and how long the holder has to act. Open-ended wording gives each side room to argue about what it meant.
Deadlines to sue matter too. Under Fla. Stat. § 95.03, a contract term that sets a shorter time to bring an action than the statute of limitations allows is void. Don’t write a short suit deadline into the lease.
Check whether the right is recorded in the public records. A recorded right appears in the records that buyers and lenders review during a title check. An unrecorded right can surface late, after a sale is already moving.
Map the dates early. Write down the lease start date, the date the window opens and the date it closes. A clear calendar keeps a dispute focused on the deal.
Tenant Considerations: Protecting the Right and Exercising It on Time
A tenant holding a right of first refusal should track every trigger and answer inside the window the lease sets. Watch for listings, sale talks and assignment requests, not only signed sales.
Problems usually involve timing or terms. A late reply can cost the holder the right. The lease wording controls how a court reads both situations.
Keep a file. Save the matching offer, the notice you sent, proof of delivery and the date of each step. If a dispute starts, that file is the record.
Landlord Considerations: Selling or Leasing Around an Existing ROFR
The landlord’s own deal can stall as a result.
Decide the order before you discuss price with a buyer. Settle whether the holder gets notice first, and how the right will be described to the buyer. Getting that order wrong can hold up the closing.
An unresolved right can complicate a sale, slow a lender’s title review or raise questions for a title insurer. Clearing it early keeps the transaction on track.
Fee exposure runs both ways. Under Fla. Stat. § 57.105, a court can award reasonable fees when the losing party or its lawyer knew or should have known that a claim or defense lacked support in the material facts or existing law.
Related Lease Provisions That Interact With an ROFR
Assignment, default and cost terms change how a right of first refusal works in practice.
- Assignment and subletting: Check whether a transfer triggers the right, what consent standard applies, and whether the owner has a recapture right.
- Default and cure: A tenant in default may face arguments about whether it can still exercise the right. Part I of Chapter 83 covers nonresidential tenancies, so commercial lease disputes often start there, under Fla. Stat. § 83.001.
- Occupancy costs: Operating expenses, common area maintenance charges and rent escalations are part of the economics. If the offer includes them, the holder’s match should address them too.
Next Steps When an ROFR Question Is Live
Start by pulling the exact clause, then map the trigger, timing and related terms before you answer anyone.
- Pull the exact clause and every amendment.
- Map the trigger, the notice rules and the deadline.
- Confirm the recording status and the assignment and default terms.
- Check the dispute clause for arbitration or mediation.
A written arbitration agreement is valid and enforceable under Fla. Stat. § 682.02, except on a ground that exists to revoke a contract. A court decides whether the agreement exists.
Under Fla. Stat. § 44.102, a landlord and tenant dispute that does not include a claim for personal injury is an exception to the requirement that a court refer a filed civil action for monetary damages to mediation upon a party’s request. Where a suit may be filed is governed by Fla. Stat. § 47.011.
Is a right of first refusal commercial lease Florida clause enforceable?
It can be, when the clause clearly states its essential terms. Florida requires offer, acceptance, consideration and sufficient detail on essential terms.
Does a right of first refusal apply when the lease is assigned?
The lease wording decides this. Check whether an assignment or subletting triggers the right.
Can a right of first refusal dispute go to arbitration?
Yes, if the lease has a valid written arbitration agreement. Florida enforces it unless a ground for revoking a contract applies.
If you’re deciding whether to exercise, accept or challenge a right of first refusal, send Eduardo A. Maura’s office your lease, the third-party offer and the notice dates. Then call (305) 570-2208 or request a case evaluation, and we’ll walk through the next steps with you.
