I have a O&G lease with the standard ROFR clause in it. My question is whether it is enforceable by the Lessee if instead of selling my mineral rights to another entity for cash which requires a 30-day notice being given to the Lessee and their ROFR, that I instead quitclaim my mineral rights to a relative for free? If no cash changes hands, does the ROFR clause apply?
Hi @Heir1 , unfortunately, a quit claim deed is still the sale of your interest in those parcels in Wetzel. You need to inform Antero and give them the 30 day notice which they have the right to exercise. You signed this willingly into your contract and will be held liable per the agreement if you don’t follow this agreement. I always recommend people cross that out because it’s a tough thing to overcome but there are mineral investment groups that may be able to buy it with enough influence that Antero lets them go through with the sale. The truth of the matter is that Antero will likely exercise that option unless you are offered considerably more than what they value it to be for a 7 year ROI.
You should contact an attorney regarding the specific clause. However, as a general rule, in West Virginia, a preferential right to purchase, such as a right of first refusal, does not apply in the event of a gift. This principle was established in the case of Bennett v. Dove, where the court held that a deed clause reserving a “right of first refusal” to the vendor to purchase the property conveyed if the purchaser later desired to sell the property was not violated by the purchaser’s gift of the property to his children without first offering it to the vendor, even though the deed to the children recited valuable consideration of one dollar cash in hand paid (Bennett v. Dove, 166 W.Va. 772 (1981).
Additionally, a right of first refusal is defined as a preemptive right that involves the creation of the privilege to purchase real property only when the owner decides to sell, and the holder of the right must purchase for the price at which the owner is willing to sell to a third person (Klein v. McCullough, 245 W.Va. 284 (2021). This right does not compel an unwilling owner to sell but merely requires the owner to offer the property first to the person entitled to the preemptive right when they decide to sell (Klein v. McCullough, 245 W.Va. 284 (2021).