6. Local Searches on Buying French Property
6.4. Pre-emption Rights on French Property
There are certain bodies and persons who have an automatic right of prior acquisition, or pre-emption, on the sale of a property.
These rights are called droits de pré-emption.
The rule of prior acquisition means that even though the seller may have agreed to sell the property to you, they may be obliged to sell it to another buyer!
Accordingly, before any sale to a prospective purchaser can be completed the notaire will need to ‘purge’ the property of these pre-emption rights.
In practice, around 98% of sales proceed without an pre-emption taking place, although the risk does increase where you are buying farmland.
There are several public agencies with the right, but the main parties with prior acquisition rights are sitting tenants, the local mairie, and the national rural land agency 'SAFER'.
The local mairie only have a right of prior acquisition if the property is located within a designated area as shown on a local plan.
The right of prior acquisition the mairie relates only to the whole of the property, not just part of it. Accordingly, they have to buy all or nothing (excepting land located out of the zoned area).
However, arising out of the 'Loi du 27 décembre 2019 relative à l'engagement dans la vie locale et à la proximité de l'action publique' councils have also been granted a right of prior acquisition on agricultural land situated wholly or partly in a drinking water catchment area (aire d’alimentation de captage d’eau potable). That right includes associated buildings. It seems that the council have such a right over those of SAFER below.
In addition, the Loi Climat et Résilience 2021 created a new right of pre-emption for the adaptation of land and property in the face of the erosion of the coastline.
The LOI n° 2022-217 du 21 février 2022 also created an additional right for local authorities to pre-empt on agricultural areas in a territory delimited in whole or in part in the catchment area of water catchments used for the supply of water intended for human consumption. The purpose of this right of pre-emption is to preserve the quality of the water resource from which the water is taken.
SAFER have a right if it is agricultural land or buildings, or land or buildings which could be suitable for agricultural use.
The threshold surface area which triggers a right of prior purchase by SAFER is determined by the local préfet on a five year cycle. In some parts of France and on certain types of land it can be all transactions and where a local plan (PLU) is in place, and in certain other cases, no minimum surface applies.
Since 2015 a change in the law makes it possible for SAFER to purchase only part of the property, where previously they had to buy all of it.
Sellers of rural estates do, not infrequently, come to a negotiated agreement on the sale of all/parts of a property to SAFER, prior to it being placed on the open market.
All sitting tenants also have the right of prior acquisition. This includes a tenant farmer on land belonging to the property you are proposing to purchase, who will have the right to purchase the property itself.
Those with a right of prior acquisition are given two months by the notaire to decide whether or not they wish to purchase the property.
Accordingly, completion of the sale cannot normally take place earlier than two months, although it is possible to pay a small additional fee to gain clearance from the mairie and SAFER with two weeks. However, the express service cannot be imposed, and is frequently ignored by SAFER, in which case your fee is refunded.
The law offers some limited protection to the original purchaser in this whole process in that a sitting tenant only has the right to buy at the same price as that contained in the sale and purchase agreement.
However, this same rule does not apply in the case of the local mairie or SAFER, who may make an alternative lower offer if they consider the initial sale price to be in excess of the market value.
If this occurs the owner can either withdraw the property from the market, or contest the counter offer in a court of law.
More often than not the two sides enter into discussions to arrive at an amicable settlement. Of course, the end result is that the property is then acquired by the public body!
If SAFER pre-empt on the terms of the contract (notably the price) the seller has no right to withdraw from the sale. They are obliged to sell to SAFER, albeit on the same terms. Accordingly, once you sign the sale and purchase contract it is out of your hands!
It is sometimes possible to contest the use of pre-emption rights in the courts, and pre-emptions are overturned due to a failure of due process by the mairie or SAFER, as we demonstrated in our Newsletter article SAFER Property Pre-Emption Annuled.
Safer are obliged to post a notice at the local mairie of a decision to pre-empt for 15 days. A failure to comply does not annul the decision to pre-empt but the legal period for challenging the decision does not start until the notice is displayed.
With care, and in certain circumstances, there are legal routes that an be used to get around the right of pre-emption from SAFER, which we set out in some detail in our Newsletter article SAFER Droit de Pre-Emption.
We would be interested to hear from you about your experience of SAFER. You can contact us at email@example.com.
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