Can an undertaking be used as a right of first refusal?
British Columbia, Canada
The following excerpt is from Boffo Developments (Jewel 2) Ltd. v. Pinnacle International (Wilson) Plaza Inc., 2009 BCSC 1701 (CanLII):
The authorities establish that an undertaking of that kind is not equivalent to a right of first refusal: Ching v. Ching, 2005 BCSC 1368; Machin. Even so, the exercise of it or the purported exercise of it, would be an important factor for the petition judge to take into account in exercising his or her discretion. Where the extent of a co-owner’s interest in a property is in dispute, then the party who wishes to exercise its entitlement to give an undertaking and attempt to buy out the petitioning party may have that entitlement unfairly thwarted because the extent of its interest to be purchased is disputed and therefore unknown.
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