Can a tenant claim a first right of refusal as equitable interest?

Full question:

Could a first right of refusal be claimed by the tennant as an equitable estate and recorded at the court house with an Affidavit of equitable interest if not what is the correct form

• Category: Real Property
• Date: 04/07/2025
• State: Kansas

Answer:

Tenants renting real estate under a lease typically do not have a legal or equitable claim against the property itself. However, many lease agreements include a right of first refusal if the landlord decides to sell the property. These provisions usually outline a specific process for the tenant to exercise this option.

While some property owners view a right of first refusal as problematic—due to potential devaluation of the property and complications in selling—it is possible to record an Affidavit of Equitable Interest. This affidavit can encumber the property until the matter is resolved, provided there is an agreement between the buyer and seller that verifies the equitable interest.

In Kansas, specific requirements must be met to record an Affidavit of Equitable Interest. According to K.S.A. 79-1437c, any deed, instrument, or affidavit must be accompanied by a completed real estate sales validation questionnaire. This questionnaire is retained for five years but is not filed of record.

For the tenant to determine the best course of action, it is advisable to consult a local real estate attorney.