Pre-emption rights in France: town hall, tenant, SAFER

The urban pre-emption right (DPU) and the DIA

The pre-emption right allows a public authority, most often the municipality, to buy in priority a property located in a zone defined in advance, for a public-interest purpose (housing, public facilities, economic activities, etc.). The zones are set by a council resolution displayed at the town hall for 2 months and published in the local press (service-public.gouv.fr).

Any sale of a property subject to the pre-emption right is conditional, on pain of nullity, on a prior declaration by the owner to the town hall. It must state the price and terms of the proposed sale (Planning Code, art. L213-2). Service-public.gouv.fr adds that:

• the DIA must be drawn up by the owner personally: if signed by the buyer, the estate agent or a third party, it is not valid;
• it is sent by recorded delivery with acknowledgement of receipt, or electronically if the municipality allows it;
• it states in particular the agency fees where they are payable by the buyer.

You may sign a promesse de vente (preliminary sale contract) with the buyer of your choice, provided it contains a condition suspensive (condition precedent) that the pre-emption right is not exercised. The acte authentique (final deed of sale) can only be signed after the municipality has waived its right.

The municipality’s 2 months

“Silence on the part of the holder of the pre-emption right for two months from receipt of the declaration […] counts as a waiver” (Planning Code, art. L213-2). Within this period, the municipality may:

• waive its right expressly or let the period lapse: you then sell to your buyer, at the price and on the terms of the DIA;
• pre-empt on your terms: the sale goes ahead with the municipality;
• offer a lower price: you have 2 months to accept, maintain your price (the expropriation judge will then set the price, with the case referred by the municipality within 15 days) or withdraw from the sale (service-public.gouv.fr).

Suspension of the period. Within the 2 months, the municipality may send a single request for documents or a request for a visit. The period is then suspended and resumes on receipt of the documents, on refusal of the visit or after the visit; if less than a month remained, the municipality has one month to decide (art. L213-2).

Sale without a DIA. Only the municipality can apply to have it annulled, within 5 years of publication of the deed (service-public.gouv.fr).

The tenant of an unfurnished home: notice to quit in order to sell

If the landlord wants to sell the home with vacant possession, they give a congé pour vendre (notice to quit in order to sell). On pain of nullity, this notice must state the price and terms of the sale, and it counts as an offer to sell to the tenant, valid for the first two months of the notice period (loi no. 89-462, art. 15, II). The notice period is 6 months before the end of the lease for an unfurnished home (service-public.gouv.fr, F35784).

If the landlord then sells on more favourable terms, the notaire (notary) must notify them to the tenant, on pain of nullity of the sale: this notification counts as a new offer, valid for one month.

The tenant has no pre-emption right if the home is sold with the tenant in place: the lease continues with the buyer (service-public.gouv.fr, F31531). Nor do they have one when the buyer is a relative of the landlord up to the 3rd degree who will live in the home for at least 2 years, when the home is furnished, or where there is a prohibition on occupancy, a dangerous-building order or an unfitness order (F31531).

The first sale after division: Act of 31 December 1975

A second right exists, independent of the notice to quit: before the first sale of a home following the initial division of a building into lots, the landlord must, on pain of nullity, notify the tenant or good-faith occupier by registered letter of the price and terms of the proposed sale (loi no. 75-1351, art. 10). The time limits are identical: offer valid for 2 months, then 2 months to sign, 4 months with a loan, and a new offer of one month if the price falls.

This right does not apply to the sale of an entire building or of all its homes, nor between relatives by blood or marriage up to the 4th degree inclusive (art. 10, III).

Agricultural land: the SAFER

The sociétés d’aménagement foncier et d’établissement rural (SAFER, rural land development agencies) hold a pre-emption right over sales for consideration of property used for agriculture and of undeveloped land intended for agriculture, that is, located in particular in an agricultural or natural zone of a planning document (Rural Code, art. L143-1). It can also cover residential buildings forming part of a farm. Service-public.gouv.fr lists this right among the checks the notaire carries out before the deed of sale.

Which professional to consult

Before the deed of sale, the notaire (notary) checks the pre-emption rights affecting the property (municipality, SAFER, coindivisaires or joint owners) and attaches to the deed proof that the urban pre-emption right has been cleared (service-public.gouv.fr); it is also the notaire who notifies the tenant of a price reduction. The agent immobilier (estate agent) must include the condition precedent of non-pre-emption in the preliminary contract and build these time limits into the sale timetable.