2015 WI 49 

SUPREME COURT OF WISCONSIN

CASE NO.: 2013AP679 

COMPLETE TITLE: MS Real Estate Holdings, LLC, 

 Plaintiff-Appellant, 

 v. 

Donald P. Fox Family Trust, Jean A. Fox 

Revocable Living 

Trust, Jean A. Fox, Michael J. Fox, Thomas P. 

Fox, Karen 

L. Brazee, Carol L. Brewer, Ellen J. Fox and Amy 

J. Alaniz, 

 Defendants-Respondents-Petitioners. 

REVIEW OF A DECISION OF THE COURT OF APPEALS 

(Reported at 356 Wis. 2d 307, 853 N.W.2d 627) 

(Ct. App. 2014 – Published) 

PDC No: 2014 WI App 84 

OPINION FILED: May 15, 2015 

SUBMITTED ON BRIEFS: 

ORAL ARGUMENT: March 3, 3015 

SOURCE OF APPEAL: 

 COURT: Circuit 

 COUNTY: Outagamie 

 JUDGE: Michael W. Gage 

 

JUSTICES: 

 CONCURRED: 

 DISSENTED: 

 NOT PARTICIPATING: 

 

ATTORNEYS: 

For the defendants-respondents-petitioners, there were 

briefs by Charles D. Koehler, Michael C. Menghini, and Herrling 

Clark Law Firm, Ltd., and oral argument by Charles D. Koehler. 

For the plaintiff-appellant, there was a brief by Jordan J. 

Hemaidan, Michael P. Screnock, and Michael Best & Friedrich LLP, 

Madison. Oral argument by Jordan Hemaidan.
2

There was an amicus curiae brief by Cori Moore Lamont and 

Wisconsin Realtors Association, Madison, on behalf of the 

Wisconsin Realtors Association. 
2015 WI 49

NOTICE

This opinion is subject to further 

editing and modification. The final 

version will appear in the bound 

volume of the official reports. 

No. 2013AP679 

(L.C. No. 2012CV214) 

STATE OF WISCONSIN : IN SUPREME COURT 

MS Real Estate Holdings, LLC,

 Plaintiff-Appellant, 

 v. 

Donald P. Fox Family Trust, Jean A. Fox 

Revocable Living 

Trust, Jean A. Fox, Michael J. Fox, Thomas P. 

Fox, Karen 

L. Brazee, Carol L. Brewer, Ellen J. Fox and 

Amy J. Alaniz, 

 Defendants-Respondents-Petitioners. 

FILED 

MAY 15, 2015 

Diane M. Fremgen 

Clerk of Supreme Court 

REVIEW of a decision of the Court of Appeals. Affirmed. 

¶1 MICHAEL J. GABLEMAN, J. We review a published 

decision of the court of appeals1 reversing the Outagamie County 

 

1 MS Real Estate Holdings, LLC v. Donald P. Fox Family 

Trust, 2014 WI App 84, 356 Wis. 2d 307, 853 N.W.2d 627. 
No. 2013AP679 

2 

circuit court's order2 granting summary judgment in favor of 

Donald P. Fox Family Trust, Jean A. Fox Revocable Living Trust, 

Jean A. Fox, Michael J. Fox, Thomas P. Fox, Karen L. Brazee, 

Carol L. Brewer, Ellen J. Fox, and Amy J. Alniz ("the Foxes"). 

The Foxes moved for summary judgment, arguing that the right of 

first refusal contract between the Foxes and MS Real Estate 

Holdings, LLC ("MS Real Estate")3 was (1) indefinite and (2) 

terminable at will. The circuit court concluded that the right 

of first refusal contract was indefinite and subject to 

termination at will, by either party, after a reasonable period 

of time. This was so, the circuit court reasoned, because the 

right of first refusal contract identified neither a specific 

duration for the contract, nor an event terminating the contract 

that was certain to occur. 

¶2 The court of appeals reversed, concluding that the 

right of first refusal contract is not indefinite. MS Real 

Estate Holdings, LLC v. Donald P. Fox Family Trust, 2014 WI App 

84, ¶23, 356 Wis. 2d 307, 853 N.W.2d 627. The court of appeals 

concluded that the right of first refusal contract is not 

indefinite because in the event MS Real Estate fails to exercise 

the right of first refusal to purchase, such failure would 

necessarily constitute a waiver of the right to lease. Id. 

Therefore, the court of appeals concluded the entire right of 

 

2 The Honorable Michael W. Gage, presiding. 

3 Formerly known as Tidy View Dairy, Inc. 
No. 2013AP679 

3 

first refusal contract (that is, both the purchase and lease 

provisions) expires only when MS Real Estate either exercises, 

or declines to exercise, its right to purchase. Id., ¶¶29-31. 

¶3 The sole issue presented for our consideration is 

whether a triggering event uncertain to occur renders a right of 

first refusal contract indefinite, thereby allowing a party to 

terminate the contract at will after a reasonable period of 

time. 

¶4 We hold that a right of first refusal contract is 

definite as to duration when it specifies an event that triggers 

the right and requires the right holder to either exercise or 

waive the right within a specified period of time thereafter, 

even if the triggering event is not certain to occur. 

Therefore, the right of first refusal contract at issue here is 

not terminable at will after a reasonable period of time. 

Rather, by the terms of the contract, the right of first refusal 

continues until there is a sale of the property, either to MS 

Real Estate or to a third party in the event that MS Real Estate 

declines to exercise its right of first refusal to purchase, 

thereby waiving its right. Accordingly, the decision of the 

court of appeals is affirmed. 

I. FACTUAL BACKGROUND AND PROCEDURAL HISTORY 

¶5 MS Real Estate operates a dairy farm that adjoins 

approximately 450 acres of farmland in the Town of Freedom in 

Outagamie County, Wisconsin, owned by the Foxes ("the Fox 

Land"). On January 16, 1998, MS Real Estate, as Tidy View 

Dairy, Inc., contracted with Donald P. Fox and Jean A. Fox for a 
No. 2013AP679 

4 

right of first refusal to purchase or lease the Fox Land. MS 

Real Estate paid Donald and Jean Fox $4,0004 for the right of 

first refusal to purchase the Fox Land and the right of first 

refusal to lease the Fox Land. 

¶6 The purchase provision of the right of first refusal 

contract states: 

Section 1: Right of First Refusal to Purchase 

Fox grants and conveys to Tidy-View a first right to 

purchase the Property, or any part thereof, for the

same price and on the same terms which Fox is willing 

to transfer such Property to another party. Prior to 

such transfer, Fox shall deliver to Tidy-View a 

written copy of the Offer, which Fox is willing to 

accept. Tidy-View shall then have 15 (fifteen) days 

in which to accept or reject the Offer according to

its price, terms and conditions. If the Offer is 

accepted, the transfer shall be closed in accordance 

with the Offer with Tidy-View as purchaser. If the

Offer is rejected, Fox may complete the sale in strict 

compliance with the Offer. If the sale is not closed, 

this first right of refusal shall again take effect. 

¶7 Under the Right of First Refusal to Purchase 

provision, should the Foxes receive an acceptable offer to 

purchase, they must submit the offer to MS Real Estate—the 

successor to Tidy-View, see supra n.3. MS Real Estate would 

then have 15 days to accept or reject the offer. If MS Real 

Estate rejects the offer, the Foxes may complete the sale with 

the third-party that made the initial offer, but only on the 

 

4 There is some dispute in the record as to whether MS Real 

Estate paid $4,000 or $4,500 for the right of first refusal. In 

either event, the consideration paid by MS Real Estate is not a 

factor in our analysis. 
No. 2013AP679 

5 

terms of the initial offer accepted by the Foxes. The contract 

also provides that the right of first refusal to purchase 

reattaches if the third-party sale does not close. 

¶8 The Right to Lease provision states: 

Section 2: Right to Lease 

2.1 Leasing Rights. Fox grants and conveys to TidyView a first right to lease the Property, or any part 

thereof, for the same price and on the same terms 

which Fox is wiling to Lease such Property to another 

party. Prior to execution of any Lease, Fox shall 

deliver to Tidy-View a written copy of the Lease, 

which Fox is willing to accept. Tidy-View shall then 

have 15 (fifteen) days in which to accept or reject

the Lease according to its price, terms and 

conditions. If the Lease is accepted, Tidy-View shall 

be obligated to make all payments in accordance with 

the Lease with Tidy-View as Lessee. If the Lease is 

rejected, Fox may execute the Lease as Lessor with the 

other party as Lessee. If the Lease is not executed, 

the first right to lease shall again take effect. 

¶9 The Right to Lease provision provides that MS Real 

Estate has a first right to lease the Fox Land which operates in 

a manner similar to the Right of First Refusal to Purchase 

provision. If the Foxes receive a lease offer they would 

accept, they must forward the offer to MS Real Estate. MS Real 

Estate must either accept or reject the lease offer within 15 

days. If MS Real Estate rejects the lease, the Foxes may 

execute the lease with the third-party. If the Foxes do not 

execute the lease, then MS Real Estate's first right to lease 

reattaches. 

¶10 The lease provision also includes a Continuing Rights 

provision under Section 2.2, which states that the right to 
No. 2013AP679 

6 

lease "shall continue for any subsequent renewal of a Lease with 

another party or upon entering into a new Lease with any other 

party. It is specifically intended that this leasing right 

shall not extinguish unless waived by [MS Real Estate]." 

¶11 The right of first refusal contract also contains a 

Binding Effect provision under Section 4, which states that 

"[t]his Agreement shall be binding upon the respective parties, 

their heirs, personal representatives, successors in interest 

and assigns." 

¶12 The Foxes leased the Fox Land to MS Real Estate in 

2001. On October 4, 2006, Donald Fox sent MS Real Estate a 

commercial offer to purchase 37.4 acres of the Fox Land, putting 

MS Real Estate on notice that it had 15 days to accept or reject 

the offer. MS Real Estate declined to exercise its right to 

purchase the 37.4 acres. MS Real Estate notified the Foxes by 

letter and attached an agreement entitled "Release of Parcel 

From Right of First Refusal." The letter stated that the 

attached agreement constituted waiver of the right of first 

refusal as to the 37.4 acres in question and reasserted MS Real 

Estate's right to the remainder of the Fox Land. However, the 

sale did not close, and, under the terms of the right of first 

refusal contract, the right of first refusal to purchase 

reattached. 

¶13 On January 11, 2007, the parties executed a five-year 

land use agreement, which expired on January 11, 2012. The 

agreement contained a handwritten provision that stated MS Real 

Estate had the right of first refusal to purchase the land and 
No. 2013AP679 

7 

that if the Foxes sold any portion of the Fox Land, the rent 

would be adjusted accordingly. 

¶14 On July 29, 2011, the Foxes sent a notice to MS Real 

Estate which noted that their lease agreement would expire in 

January. In that notice, the Foxes invited MS Real Estate to 

submit a bid to lease the property beginning in 2012. The Foxes 

sent a second notice on October 26, 2011, which again requested 

that MS Real Estate present a bid on a 2012 lease of the Fox 

land. The notice also acknowledged MS Real Estate's right to 

first lease and that the Foxes would follow the procedure for 

allowing MS Real Estate to exercise its right should they 

receive other bids to lease the property. 

¶15 MS Real Estate responded on November 8, 2011, by 

proposing two leases for the Foxes to choose between: a one-year 

lease and a three-year lease. The lease proposals also 

referenced MS Real Estate's right of first refusal and its 

intent to abide by the contract's provisions. 

¶16 On December 1, 2011, the Foxes notified MS Real Estate 

that it was soliciting alternate lease proposals. On December 

5, 2011, the Foxes sent MS Real Estate a proposal from Tinedale 

Cropping to lease the property from January 1, 2012, to December 

31, 2016, at an initial price of $200 per acre ("the Tinedale 

Proposal"). MS Real Estate, believing that the Tinedale 

Proposal was acceptable to the Foxes, attempted to exercise its 

right of first lease on December 16, 2011, by notifying the 

Foxes that it accepted the terms of the Tinedale Proposal. MS 

Real Estate included a signed lease agreement for the Fox Land 
No. 2013AP679 

8 

under the terms of the Tinedale Proposal. The Foxes refused to 

execute the lease. 

¶17 On February 8, 2012, the Foxes delivered a second 

lease to MS Real Estate pursuant to the right of first refusal 

contract which Kavanaugh Farms and the Foxes had executed on 

February 6, 2012 ("the Kavanaugh Lease"). The Kavanaugh Lease 

ran from 2012 through 2016 and provided for a rent of $225 per 

acre in the first year, with a two percent annual increase in 

the cost per acre. The Foxes did not provide MS Real Estate 

with a copy of the Kavanaugh Lease prior to its execution, but 

communicated to MS Real Estate that it retained the right of 

first lease and could accept the terms of the Kavanaugh Lease. 

¶18 On February 12, 2012, MS Real Estate filed suit in 

Outagamie County circuit court seeking declaratory judgment that 

the Tinedale Proposal constituted an offer to lease which had 

been accepted by MS Real Estate under the right of first refusal 

contract, and seeking damages for breach of contract. In 

response, the Foxes sent a letter to MS Real Estate on March 6, 

2012, purportedly terminating the right of first refusal 

contract. The Foxes' letter indicated that the right of first 

refusal contract failed to specify the duration of the contract 

and did not expressly state that it was intended to be 

perpetual. Thus, according to the Foxes, either party could 

terminate the contract after a reasonable time. 

¶19 On April 5, 2012, the parties resolved their dispute 

regarding whether it was the Tinedale Proposal or the Kavanaugh 

Lease which constituted an acceptable offer subject to MS Real 
No. 2013AP679 

9 

Estate's right to first lease. They did so by entering into a 

lease under the terms of the Kavanaugh Lease. The Foxes moved 

for summary judgment on their remaining counterclaim, arguing 

that the March 6 revocation of the right of first refusal 

contract was valid because the contract was indefinite and 

lacked the express language needed to indicate an intent it 

should endure in perpetuity. The circuit court granted summary 

judgment in favor of the Foxes, concluding that the right of 

first refusal contract was indefinite as to duration and that 

the revocation by the Foxes was reasonable. 

¶20 The court of appeals reversed, concluding that "a 

right of first refusal to purchase . . . is not amenable to the 

general rule of indefiniteness applied by the circuit court." 

MS Real Estate Holdings, 356 Wis. 2d 307, ¶13. The court of 

appeals also determined MS Real Estate's failure to exercise the 

right of first refusal to purchase would constitute a waiver of 

the right of first lease under the contract. Id., ¶¶30-31. 

Thus, the court concluded that the duration of the right of 

first refusal contract is not indefinite because the contract 

terminates, in its entirety, upon the sale of the Fox Land. 

Id., ¶32. 

¶21 The Foxes petitioned this court for review, which we 

granted on November 13, 2014. 

II. STANDARD OF REVIEW 

¶22 This case requires us to review a grant of summary 

judgment. "'We review the grant of a motion for summary 

judgment de novo, and apply the methodology specified in Wis. 
No. 2013AP679 

10 

Stat. § 802.08. That is, we determine whether there is any 

genuine issue as to any material fact, and if not, which party 

is entitled to judgment as a matter of law.'" E-Z Roll Off, LLC 

v. Cnty. of Oneida, 2011 WI 71, ¶15, 335 Wis. 2d 720, 800 

N.W.2d 421 (citation omitted). 

¶23 In doing so, we must interpret the right of first 

refusal contract between the Foxes and MS Real Estate and 

determine whether it is ambiguous as to its duration. "Whether 

a contract is ambiguous is . . . a question of law which we 

review de novo." Mitchell Bank v. Schanke, 2004 WI 13, ¶46, 268 

Wis. 2d 571, 676 N.W.2d 849 (quoting Schmitz v. Grudzinski, 141 

Wis. 2d 867, 871, 416 N.W.2d 639 (Ct. App. 1987)). 

III. DISCUSSION 

A. Rights of First Refusal Defined 

¶24 A right of first refusal is a contractual right to be 

first in line should the opportunity to purchase or lease a 

property arise. "The right of first refusal 'remains in an 

unripened or suspended state, awaiting the energizing spark 

provided when the condition precedent of intent and offer is 

met.'" Wilber Lime Prods., Inc. v. Ahrndt, 2003 WI App 259, 

¶10, 268 Wis. 2d 650, 673 N.W.2d 339 (quoting Chapman v. Mut. 

Life Ins. Co, 800 P.2d 1147, 1152 (Wyo. 1990)). It is 

"essentially a conditional option dependent upon the decision or 

the desire of the landlord to sell [or lease]." Last v. 

Puehler, 19 Wis. 2d 291, 297, 120 N.W.2d 120 (1963). Like an 

option contract, a right of first refusal must be supported by 
No. 2013AP679 

11 

consideration. 3 E.M. Holmes, Corbin on Contracts § 11.3 (rev. 

ed. 1996) (hereinafter Corbin). 

¶25 However, a right of first refusal is not an option 

contract. A right of first refusal is 

a right to buy before or ahead of others, thus, a preemptive right contract is an agreement containing all 

the essential elements of a contract, the provisions 

of which give to the prospective purchaser the right 

to buy upon specified terms, but, and this is the 

important point, only if the seller decides to sell. 

It does not give the pre-emptioner the power to compel 

an unwilling owner to sell, and therefore is 

distinguishable from an ordinary option. 

Edlin v. Soderstrom, 83 Wis. 2d 58, 68, 264 N.W.2d 275 (1978) 

(citing J.A. Bryant, Jr, Annotation, Pre-emptive Rights to 

Realty as Violation of Rule Against Perpetuities or Rule 

Concerning Restraints on Alienation, 40 A.L.R. 3d, 920, 924 

(1971)). "The holder of an option can compel a sale by an 

unwilling owner. The holder of a right of first refusal on a 

piece of land only has the right to receive an offer to buy the 

land." Corbin, supra, § 11.3. 

¶26 Further, a right of first refusal to purchase or lease 

land may be a servitude.5 A servitude is "a legal device that 

creates a right or obligation that runs either with land or with 

an interest in land." Nature Conservancy of Wis., Inc. v. 

Altnau, 2008 WI App 115, ¶7, 313 Wis. 2d 382, 756 N.W.2d 641 

 

5 While it is unnecessary for the outcome of this case to 

determine whether the right of first refusal contract between 

the Foxes and MS Real Estate is a servitude, we nonetheless find 

the rules governing servitudes useful to our analysis. 
No. 2013AP679 

12 

(citing Restatement (Third) of Prop.: Servitudes § 1.1(1) 

(2000)). Servitudes are subject to the rules against restraints 

on alienation. Restatement (Third) of Prop.: Servitudes § 3.3. 

¶27 A restraint on alienation occurs when a property owner 

contracts not to sell the property for a specified amount of 

time. Corbin, supra, § 11.3. Generally, a right of first 

refusal is not a restraint on alienation if the procedure for 

exercising the right is reasonable. Id. To determine whether a 

right of first refusal imposes a restraint on alienation, one 

must look to the provisions governing the exercise of the right. 

Restatement (Third) of Prop.: Servitudes § 3.4 cmt. f. 

Lack of clarity may cause substantial harm by making 

it difficult to obtain financing and exposing 

potential buyers to threats of litigation. Lengthy

periods for exercise of rights of first refusal will 

also substantially affect alienability of the 

property. Potential buyers will be deterred by the

possibility that they may not know for a lengthy 

period of time whether they will obtain the property 

or be obligated to pay the price. The risks of change 

in their needs and in financial markets will be 

greater than most buyers will be willing to accept.

Id. However, where the right of first refusal provides for 

purchase on the same terms and conditions as the owner receives 

from a third party, the procedure for exercising the right is 

clear, and the time for exercising the right when it arises is 

reasonably short, its practical effect on alienation is de 

minimus. Id. Thus, to determine whether the time for 

exercising the right of first refusal is reasonable, one must 

look to when the right is triggered. A right of first refusal 

is triggered when "the energizing spark" of "intent and offer is 
No. 2013AP679 

13 

met," not when the contract is first created. Wilber Lime 

Prods., 268 Wis. 2d 650, ¶10 (citation and quotation omitted). 

¶28 When a right of first refusal provides for purchase on 

the same terms and conditions as an acceptable offer, provides a 

clear procedure for exercising the right, and provides a 

reasonable time for exercising the right, it does not operate to 

prohibit or restrain the sale of property. Rather, the right of 

first refusal contract bestows on the holder the right to 

preempt a third party’s purchase when that third party has made 

an offer the owner will accept. Corbin, supra, § 11.3. Where 

the procedure is clear and the time to exercise the right is 

reasonable, a right of first refusal "provides a possible buyer 

who is constantly available." Bruns v. Rennebohm Drug Stores, 

Inc., 151 Wis. 2d 88, 99, 442 N.W.2d 591 (Ct. App. 1989). 

¶29 If the property owner receives an acceptable offer, 

the owner "has the power to create a privilege to sell by merely 

offering to sell to [the holder of the right of first refusal]." 

Corbin, supra, § 11.3. If the holder accepts, he purchases the 

property. If the holder declines, the owner may accept the 

buyer’s offer. Accordingly, "a transaction exclusively 

contractual in character, such as a right of first refusal," 

cannot realistically be said to encumber specific property. 10 

Powell on Real Property § 72.07 (Michael Allan Wolf ed., 

LexisNexis Matthew Bender). This discussion makes clear that, 

under a right of first refusal contract, landowners such as the 

Foxes remain free to do with their property as they wish. The 

holder of a right of first refusal cannot force landowners to 
No. 2013AP679 

14 

sell or lease their property unless they freely choose to do so. 

Even then, landowners may condition such sale or lease on terms 

that are acceptable to them. In other words, landowners such as 

the Foxes remain in total control of their property and cannot 

be forced to act against their will under a right of first 

refusal contract. 

B. Right of First Refusal Contracts That Use a Triggering Event 

That is Uncertain to Occur Are Not Indefinite as to Duration. 

¶30 By their nature, right of first refusal contracts 

often contemplate a level of uncertainty because such contracts 

rely on triggering events——usually a landowner’s decision to 

sell——which may or may not occur. See Wilber Lime Prods., 268 

Wis. 2d 650, ¶10. The use of an event to determine the duration 

of a right of first refusal contract renders the duration of the 

contract sufficiently definite under Wisconsin law. Schneider 

v. Schneider, 132 Wis. 2d 171, 176, 389 N.W.2d 835 (Ct. App. 

1986). The Foxes do not argue that the procedures for MS Real 

Estate to exercise its rights are unreasonable, but rather that 

the duration of the entire contract is indefinite. Thus, the 

question here is whether the uncertainty of when—or even if—the 

triggering event will occur offends Wisconsin’s policy 

disfavoring perpetual contracts. It does not. 

¶31 We begin our analysis, as we must, by noting that 

Wisconsin courts do not favor perpetual contracts. We are 

"reluctant to interpret a contract as providing for a perpetual 

contractual right unless the intention of the contracting 

parties to provide for the same is clearly stated." Capital 
No. 2013AP679 

15 

Invs., Inc. v. Whitehall Packing Co., 91 Wis. 2d 178, 193, 280 

N.W.2d 254 (1979). When the time that a contract is to endure 

is indefinite, this court will imply a reasonable time for the 

duration of the contract. Farley v. Salow, 67 Wis. 2d 393, 402, 

227 N.W.2d 76 (1975). However, we do not require parties to 

express duration in temporal terms in order to avoid 

indefiniteness. Rather, parties are free to identify triggering 

events that give rise to termination of the contract in one form 

or another. Schneider, 132 Wis. 2d at 176. 

¶32 The Foxes argue that the uncertainty of a triggering 

event, in this case the sale of the Fox Land, renders the 

duration for which the right of first refusal contract is to 

endure indefinite, and therefore violates Wisconsin’s policy 

disfavoring perpetual contracts. The Foxes assert that (a) 

because the duration of the contract is indefinite, and (b) it 

contains no express language stating that it is intended to be 

perpetual, we should imply a reasonable time for performance, 

after which, the contract is terminable at will by either party. 

Accordingly, in the Foxes view, the court of appeals exceeded 

its authority by concluding the contract terminated upon sale. 

¶33 We disagree. A specified triggering event, though 

uncertain to occur, may render a right of first refusal contract 

sufficiently definite and establish the duration of the right. 

Id. In Schneider, the court of appeals considered whether an 

agreement between two brothers that restricted the sale of 

property held by them as tenants in common was indefinite as to 

duration because it contained no express amount of time it was 
No. 2013AP679 

16 

to endure, thereby violating the restriction on partition 

agreements that exceed thirty years under Wis. Stat. 

§ 842.02(1). Id. at 175. The court concluded that the 

agreement was not indefinite because either of two events——the 

death of one of the brothers or operation of a right of first 

refusal provision in the agreement——would allow the land to be 

partitioned. Id. at 176. 

¶34 The Foxes argue that, in Schneider, it is the first 

event the court listed, death, that made the duration of the 

contract definite because death is an event certain to occur. 

The Foxes' reading of Schneider does not persuade us. The court 

in Schneider provided two independent reasons for concluding 

that the duration of the contract was sufficiently definite. 

Schneider, 132 Wis. 2d at 176. The first, death, was certain to 

occur, though impossible to predict. Id. The second, the 

exercise of the right of first refusal, though uncertain to 

occur, depended on one of the brothers seeking to sell his 

interest in the land. Id. The brothers had signed an agreement 

that required the sibling who wished to sell his interest in the 

land to offer it to his brother first. Id. Through the 

operation of the right of first refusal agreement, either 

brother could sell his interest in the property at any time. 

Id. Thus, either death or the sale of the property was 

sufficient to establish the definiteness of the contract. 

¶35 The court’s conclusion in Schneider is consistent with 

the form and function of rights of first refusal. As we 

explained above, a right of first refusal contract operates in a 
No. 2013AP679 

17 

manner similar to a conditional option contract, though it is 

not an option contract. See Last, 19 Wis. 2d at 297; Nature 

Conservancy of Wis., 313 Wis. 2d 382, ¶7; Corbin, supra, § 11.3. 

Under a right of first refusal contract, the right to purchase 

property lies dormant until it is awakened by the occurrence of 

a specified triggering event. Wilber Lime Prods., 268 

Wis. 2d 650, ¶10. Unless otherwise specified by the parties, a 

right of first refusal expires when the triggering event occurs 

and the holder chooses to either exercise or waive the right. 

See Cipriano v. Glen Cove Lodge #1458, B.P.O.E., 801 N.E.2d 388, 

392 (N.Y. 2003) ("The holder of a right of first refusal must be 

given the opportunity to exercise the preemptive right, but the 

right is extinguished when the contract with the third party 

expires or is abandoned."); Corbin, supra, § 11.3. Accordingly, 

so long as the right of first refusal clearly identifies a 

triggering event, whether certain or uncertain to occur, it is 

definite as to duration. 

¶36 Because we hold that a right of first refusal contract 

is definite as to duration when it specifies an event that 

triggers the right, even when the triggering event is not 

certain to occur, we must now interpret the right of first 

refusal contract between the Foxes and MS Real Estate to 

determine the triggering event. 

C. The Right of First Refusal Contract Terminates Upon Sale of 

the Fox Land. 

¶37 To determine whether the right of first refusal

contract between the Foxes and MS Real Estate is indefinite, we 
No. 2013AP679 

18 

must interpret the document. Our goal in interpreting contracts 

is to determine and carry out the parties' intentions. See 

Wilson Mut. Ins. Co. v. Falk, 2014 WI 136, ¶23, 360 Wis. 2d 67, 

857 N.W.2d 156. "Contract language is construed according to 

its plain or ordinary meaning, . . . consistent with 'what a 

reasonable person would understand the words to mean under the 

circumstances.'" Tufail v. Midwest Hospitality, LLC, 2013 WI 

62, ¶28, 348 Wis. 2d 631, 833 N.W.2d 586 (internal citations 

omitted). If the terms of a contract are plain and unambiguous, 

we construe it as it stands. Gottsacker v. Monnier, 2005 WI 69, 

¶22, 281 Wis. 2d 361, 697 N.W.2d 436. "However, where 

contractual language is reasonably susceptible to more than one 

meaning, that language is ambiguous." Nature Conservancy of 

Wis., 313 Wis. 2d 382, ¶6. 

¶38 "The general rule as to construction of contracts is 

that the meaning of particular provisions in the contract is to 

be ascertained with reference to the contract as a whole." 

Tempelis v. Aetna Cas. & Sur. Co., 169 Wis. 2d 1, 9, 485 

N.W.2d 217 (1992). "When interpreting an ambiguous contract 

provision, we must reject a construction that renders an unfair 

or unreasonable result." Gottsacker, 281 Wis. 2d 361, ¶24. We 

"interpret contracts to give them 'common sense' and 'realistic' 

meaning." Betz v. Diamond Jim's Auto Sales, 2014 WI 66, ¶68, 

355 Wis. 2d 301, 849 N.W.2d 292 (Abrahamson, C.J., dissenting). 

"[A]mbiguities are resolved against the drafter." Marlowe v. 

IDS Prop. Cas. Ins. Co., 2013 WI 29, ¶48, 346 Wis. 2d 450, 828 

N.W.2d 812. 
No. 2013AP679 

19 

¶39 Read in isolation, the two right of first refusal 

provisions in the contract between the Foxes and MS Real Estate 

are not ambiguous. Section one of the contract, which contains 

the Right of First Refusal to Purchase provision, states: 

Fox grants and conveys to Tidy-View a first right to 

purchase the Property, or any part thereof, for the

same price and on the same terms which Fox is willing 

to transfer such Property to another party. Prior to 

transfer, Fox shall deliver to Tidy-View a written 

copy of the Offer, which Fox is willing to accept. 

Tidy-View shall then have 15 (fifteen) days in which 

to accept or reject the Offer according to its price, 

terms and conditions. If the Offer is accepted, the 

transfer shall be closed in accordance with the Offer 

with Tidy-View as purchaser. If the Offer is 

rejected, Fox may complete the sale in strict 

compliance with the Offer. If the sale is not closed, 

this first right of refusal shall again take effect. 

(Emphasis added). 

¶40 By its terms, this provision terminates upon the sale 

of the Fox Land. There is no other reasonable interpretation. 

If the Fox Land is sold to MS Real Estate, then there is no 

longer a need for the provision. If the Fox Land is sold to a 

third-party, the right of first refusal to purchase does not 

reattach. MS Real Estate would waive its right of first refusal 

to purchase if and when the Fox Land is sold to a third-party, 

thus extinguishing the right. 

¶41 Similarly, the Right of First Lease provision is 

unambiguous when read in isolation. The section contains two 

provisions, which read: 

2.1 Leasing Rights. Fox grants and conveys to TidyView a first right to lease the Property or any part 

thereof, for the same price and on the same terms 
No. 2013AP679 

20 

which Fox is willing to Lease such Property to another 

party. Prior to execution of any Lease, Fox shall 

deliver to Tidy-View a written copy of the Lease, 

which Fox is willing to accept. Tidy-View shall then 

have 15 (fifteen) days in which to accept or reject

the Lease according to its price, terms and 

conditions. If the Lease is accepted, Tidy-View shall 

be obligated to make all payments in accordance with 

the Lease with Tidy-View as Lessee. If the Lease is 

rejected, Fox may execute the Lease as Lessor with the 

other party as Lessee. If the Lease is not executed, 

the first right to lease shall again take effect. 

2.2 Continuing Rights. This section 2 right shall 

continue for any subsequent renewal of a Lease with

another party or upon the entering into of a new Lease 

with any other party. It is specifically intended 

that this leasing right shall not extinguish unless

waived by Tidy-View. 

¶42 Standing alone, the plain language of the right of 

first lease is amenable to only one reasonable interpretation: 

if the Foxes desire to lease their land, MS Real Estate must be 

given the first opportunity. Further, this right is expressly 

intended to continue beyond the provisions of any single lease 

term and terminates only upon waiver by MS Real Estate. 

¶43 The fact that the right of first refusal provisions of 

the contract are unambiguous when read in isolation does not end 

the inquiry. Contractual provisions must be interpreted within 

the context of the contract as a whole. Tempelis, 169 

Wis. 2d at 9. As we have noted within the context of insurance 

policies, provisions that are unambiguous standing alone may be 

ambiguous in the context of the whole contract. See Md. Arms 

Ltd. P'ship v. Connell, 2010 WI 64, ¶39, 326 Wis. 2d 300, 786 

N.W.2d 15. Here, the fourth section of the contract, titled 
No. 2013AP679 

21 

Binding Effect, creates ambiguity as to the duration of the 

contract. 

¶44 The Binding Effect provision states that the agreement 

"shall be binding upon the respective parties, their heirs, 

personal representatives, successors in interest and assigns." 

This section creates at least two reasonable interpretations 

regarding the duration of the contract. The first is that the 

contract is intended to be perpetual. The second is that a sale 

under the Right of First Refusal to Purchase provision 

constitutes waiver under the Right of First Lease provision, 

thus terminating the contract. 

¶45 We are reluctant to find a perpetual contractual right 

unless the contract language evidences that the parties clearly 

intended the contract to be perpetual. Capital Investments, 91 

Wis. 2d at 193. However, the intent to create a perpetual 

contract does not require the parties to use magic words. If 

the contract language indicates that they intend the contract to 

be continual, a court may find a perpetual contract. Here, the 

Binding Effect provision can be read to create a perpetual 

contract. The use of the term "successors in interest" suggests 

that the parties intended the contract to be perpetual. This is 

so because if the right of first refusal contract is binding on 

all of the Foxes' successors in interest, then it would be 

binding on any third-party who purchased the Fox Land. Such an 

interpretation would give MS Real Estate a permanent right of 
No. 2013AP679 

22 

first refusal to lease regardless of who owns the Fox Land.6 

Thus, MS Real Estate would have a right of first lease to the 

Fox Land that is enforceable against future owners of the 

property, assuming it did not exercise its right of first 

refusal to purchase under section one and did not separately 

waive its right of first lease under section two. 

¶46 This is not the only reasonable interpretation of the 

contract, however. The contract can also be read to terminate 

upon the sale of the Fox Land to a third-party. Under this 

reading, the extent of the Binding Effect provision is limited 

by the terms of the right of first refusal provisions. As we 

have explained, under the Right of First Refusal to Purchase 

provision, MS Real Estate's right to purchase terminates upon 

sale of the Fox Land, whether the sale is to MS Real Estate or a 

third-party. In addition, according to Section 2.2 of the Right 

of First Lease provision, MS Real Estate's lease rights "shall 

not extinguish unless waived." The contract does not define 

what constitutes waiver, and because waiver is not defined 

within the contract, we give the term is its plain or ordinary 

meaning. Tufail, 348 Wis. 2d 631, ¶28. 

¶47 Waiver is defined as "the voluntary relinquishment or 

abandonment——express or implied——of a legal right or advantage." 

 

6 This interpretation would not create a perpetual right of 

first refusal to purchase, however. This is because that 

provision in the contract clearly states that the "first right 

of refusal shall again take effect" only in the event a sale to 

a third-party does not close. 
No. 2013AP679 

23 

Black’s Law Dictionary 1717 (9th ed. 2009). Thus, the terms of 

the contract provide that the right of first lease is waived 

when MS Real Estate abandons a legal right or advantage under 

the contract. In this case, that can mean only abandonment of 

the right to purchase. As the court of appeals correctly noted, 

if waiver applied solely to the right to lease, then the Right 

of First Lease provision would be internally inconsistent. MS 

Real Estate Holdings, 356 Wis. 2d 307, ¶30. This is so because 

Section 2.2 explicitly states that the right of first lease 

continues for any subsequent lease, whether entered into by MS 

Real Estate or a third-party. For such a situation to occur, MS 

Real Estate would have declined, or "voluntarily relinquished," 

its first right to lease under Section 2.1. Thus, waiver must 

mean the relinquishment of a different right under the contract, 

and the only other right granted to MS Real Estate is the first 

right to purchase. Accordingly, Section 2.2, read in the 

context of the contract as a whole, indicates that waiver occurs 

when MS Real Estate refuses to exercise its right to purchase 

the Fox Land and allows a third-party to purchase the property.7 

 

7 Another reason that "waiver" in Section 2.2 cannot refer 

to the first right to lease is that it would be redundant. It 

is well-settled that "[a] construction which gives reasonable 

meaning to every provision of a contract is preferable to one 

leaving part of the language useless or meaningless." Maas by 

Grant v. Ziegler, 172 Wis. 2d 70, 79, 492 N.W.2d 621 (1992). 

The first sentence of Section 2.2 states that the first right to 

lease "shall continue for any subsequent renewal of a Lease with 

another party or upon the entering into of a new Lease with any 

other party." The plain meaning of this provision is that the 

first right to lease is recurring, unlike the first right to 

purchase. In essence, MS Real Estate can waive its first right 

(continued) 
No. 2013AP679 

24 

¶48 We conclude that the second "waiver interpretation" is 

the more reasonable and commonsense reading of the document as a 

whole. See Betz, 355 Wis. 2d 301, ¶68. By concluding that 

waiver under the Right of First Lease provision occurs when MS 

Real Estate declines to exercise the right of first refusal to 

purchase, the waiver interpretation gives full effect to each 

provision of the contract. Under this waiver interpretation, 

the right of first refusal to purchase remains in effect until 

the consummation of a sale of the Fox Land. Further, the right 

of first lease continues, arising each time a lease expires, 

until it is waived by MS Real Estate's choice not to exercise 

its right of first refusal to purchase. Finally, under the 

waiver interpretation, the Binding Effect provision remains 

enforceable, binding subsequent generations of the Fox family 

that will inherit the Fox Land until the property is sold. 

¶49 The parties' actions also indicate that the waiver 

interpretation is consistent with their intent. When a contract 

is ambiguous, the court may look beyond the four corners of the 

document and consider extrinsic evidence that demonstrates the 

parties' intent. Betz, 355 Wis. 2d 301, ¶39. Here, the 

parties' behavior under the contract provides additional support 

 

to lease for every lease as long as the contract is in force. 

There is no need for MS Real Estate to affirmatively waive this 

right because it will not suffer any ill-effects for failure to 

do so. Thus, if we were to read the waiver provision in Section 

2.2 as applying only to the right of first lease, the waiver 

provision would be superfluous. 
No. 2013AP679 

25 

for this waiver interpretation. When the Foxes sent MS Real 

Estate notice that it had received an offer to purchase 37.4 

acres of the Fox Land on October 4, 2006, MS Real Estate 

notified the Foxes by letter that it did not wish to purchase 

the land. Enclosed with the letter was an agreement entitled 

"Release of Parcel From Right of First Refusal." MS Real Estate 

indicated that the enclosed agreement was a waiver of all its 

rights to the 37.4 acres under the right of first refusal 

contract. The following January, when executing a new five year 

lease, the parties indicated, by hand written addendum, that if 

any part of the Fox Land was sold during the lease term, the 

rent would be adjusted accordingly. This addendum also 

demonstrates that the parties intended a sale executed under the 

Right of First Refusal to Purchase provision to constitute 

waiver under the Right of First Lease provision. 

¶50 The waiver interpretation also satisfies the rule that 

we construe any ambiguities in the document against the drafting 

party. Marlowe, 346 Wis. 2d 450, ¶48. A perpetual

interpretation of the contract would give MS Real Estate a right 

of first lease that ran with the land. Under the perpetual 

interpretation, MS Real Estate, the drafter of the document, 

would benefit from a perpetual right of first lease. If we 

adopted such a reading, it would place MS Real Estate first in 

line anytime the land would be leased, giving it a clear 

advantage over any other interested third-party. Construing the 

contract against MS Real Estate requires us to adopt the waiver 

interpretation. 
No. 2013AP679 

26 

¶51 Finally, the right of first refusal contract at issue 

here is not a restraint on the Foxes' ability to alienate the 

property. A restraint on alienation occurs when a property 

owner contracts not to sell the property for a specified amount 

of time. Corbin, supra, § 11.3; see also Wis. Stat. § 700.16(2) 

(2014-15) ("The power of alienation is suspended when there are 

no persons in being who, alone or in combination with others, 

can convey an absolute fee in possession of land, or full 

ownership of personalty."). As discussed above, where the right 

of first refusal provides for purchase on the same terms and 

conditions as the owner receives from a third party, the 

procedure for exercising the right is clear, and the time for 

exercising the option when it arises is reasonably short, its 

practical effect on alienation is de minimus. Corbin, supra, 

§ 11.3. If MS Real Estate desires to purchase the Fox Land, it 

must be willing to meet the terms and conditions of an offer the 

Foxes deem acceptable. The procedure for exercising the first 

right to purchase is clear under the contract. If the Foxes 

receive an offer they will accept, they must deliver a written 

copy of the offer to MS Real Estate. MS Real Estate then has 15 

days to determine whether to purchase the property on those same 

terms. We conclude that 15 days is reasonably short such that 

potential buyers will not be deterred by the possibility that 

they may not know for a lengthy period whether they will obtain 

the property. 

¶52 MS Real Estate's opportunity to exercise its right of 

first refusal is completely dependent upon the actions of the 
No. 2013AP679 

27 

Foxes. The Foxes hold all the cards because they are not 

required to sell or lease their land, and they may use their 

land however they wish. They could entertain a thousand offers 

to sell or lease the Fox Land, and cast each one aside without 

consequence under the contract. In the event an offer for sale 

or lease is made that they are willing to accept, all that is 

required is that they give MS Real Estate the opportunity to 

accept or reject the terms of the offer that they find 

acceptable. MS Real Estate may not negotiate for more favorable 

terms. The Foxes alone determine what offer is or is not 

acceptable. Thus, the right of first refusal contract is not a 

restriction on alienation and continues to be enforceable. 

IV. CONCLUSION 

¶53 We hold that a right of first refusal contract is 

definite as to duration when it specifies an event that triggers 

the right and requires the right holder to either exercise or 

waive the right within a specified period of time thereafter, 

even if the triggering event is not certain to occur. 

Therefore, the right of first refusal contract at issue here is 

not terminable at will after a reasonable period of time. 

Rather, by the terms of the contract, the right of first refusal 

continues until there is a sale of the property, either to MS 

Real Estate or to a third party in the event that MS Real Estate 

declines to exercise its right of first refusal, thereby waiving 

the right. Accordingly, the decision of the court of appeals is 

affirmed. 
No. 2013AP679 

28 

By the Court.-The decision of the court of appeals is 

affirmed. 
No. 2013AP679 

1