The Sentence that we will analyze below refers to the right of first refusal requested by the lessee of a property, based on the justification of applying the price corresponding to the “real value” paid at the time by the buyer, or, to the contrary, it should apply the corresponding “market value” of the aforecited property.
The Judge of the Court of the First Instance granted the pretensions of the lessee of the property when this latter party was aware that the mentioned property, which was leased by the defendant, had been sold by the previous owner. This breaches, then, what is established in article 48.2 of the Urban Lease Act of 1964 (at present, Article 25 of the current Urban Lease Act), and grants as well the right of first refusal action for the same price that the defendant had paid at that time.
Afterwards, in the Second Instance, the Provincial Court of Barcelona partially granted the appeal, establishing that the price, which the lessee had to pay in order to exercise the right of first refusal, had to coincide with the “current price” or “the market value” of the property, plus the legitimate expenses. In this sense, even though the Provincial Court established that “in principle the price which has to be taken into account in the subrogation which the right of first refusal involves is the price which appears in the leasing contract, in doubtful cases or when there is no record of said price, it is necessary to adhere to the real price, which is what must prevail and what must be reimbursed”. In the case in question, it so happens that in addition to the fact that the price was paid by the present owner more than 20 years ago, it is a much lower amount and it did not corresponds to the location and characteristics of the property, being the property sold to a close relative of the previous owner.
In the light of the afore-mentioned Sentence under appeal, the Supreme Court issued a decision regarding the matter of whether the price of the right of first refusal is that which the parties have freely agreed upon or, to the contrary, it should be the result of the real value of the property at the time of the granting the right of first refusal action. The Higher Court revoked the Sentence in an appeal establishing that the real price does not mean real value or current price, and so the option holder should pay the price actually paid by the buyer, once it is proven what the amount was finally paid.
The fact that a great deal of time has transpired between the buying and selling transaction and the exercising of the right of first refusal action, does not justify the decision to set as a price for the right of first refusal a higher amount than that which was actually paid in the mentioned transaction, since the consequences of the lack of communication to the lessee of the circumstances of the buying and selling transaction must fall upon the parties participating thereof and not on the option holder.
And finally, the Supreme Court established that the price of the right of first refusal must be the real price effectively paid by the buyer, in such a way that this party is found in a situation of financial indemnity after the right of first refusal, even though the price which appears in the buying and selling transaction is different to what was actually proven.