Alice and Bertrand have signed a private agreement for the sale of their house. Their notary has indicated that he will draw up the usual file for the deed of sale, request the various documents and purge the right of pre-emption which prevails in their commune. Is our vendor couple right to be concerned? Stéphanie Swiklinski, a qualified notary, will try to reassure them.
Alice
What is the urban right of pre-emption?
Stéphanie Swiklinski : Urban pre-emption rights enable a local authority to take the place of a prospective buyer. Local authorities can thus carry out certain projects (development, creation of facilities, etc.) by purchasing, as a priority, a property located in certain zones defined by the local urban development plan. When "reinforced", this urban pre-emption right can target apartments in condominiums, in order to create social housing. To find out whether the property you are selling or buying is concerned, you need to apply to the town hall for a town planning certificate. Pre-emption is possible if, and only if, the mayor's office acts in the public interest and justifies its decision in this way. Communes, or the territorial public bodies representing them, are informed of pending sales by means of a form known as the "déclaration d'intention d'aliéner" (or DIA), which is sent to them by the notary as part of the preparation of real estate sales files. Failure to do so may result in cancellation of the sale.
Bertrand
What happens if the commune is interested in our property?
Stéphanie Swiklinski : The declaration of intent to sell is sent to the commune by registered mail with acknowledgement of receipt. This opens up a right to the commune. Once the DIA has been received, the commune has two months to decide whether or not to pre-empt the property. This means that it can take the place of the buyer you have chosen and who has signed the preliminary sales agreement. If the commune is interested :
- it wants to pre-empt at the price set in the preliminary sales agreement, so you agree on the price and the transaction can go ahead. You sell your property to the commune.
- the commune is interested, but at a lower price... and you don't agree at all.
Note that in the absence of a response from the commune within two months, silence is equivalent to renunciation and you can sell to your buyer.
Alice
What should I do if I disagree on the price?
Stéphanie Swiklinski : As an owner, you can dispute both the price proposed by the commune and the validity of the pre-emption decision. There are various legal tools at your disposal. If you are not satisfied with the price proposed by the commune, you have two months in which to :
- renounce the sale ;
- or refuse under these conditions and ask the expropriation judge to set the price. It is therefore up to you to provide "elements of comparison", i.e. to provide information relating to recomparable to the pre-empted property, in a nearby geographical area and subject to similar planning regulations. This procedure may enable you to demonstrate that the price proposed by the holder of the right of pre-emption is lower than the market price or, more simply, to obtain a higher price.
Once the price has been set by the judge, the owner and the commune have two months from the final decision to accept or reject the transaction. Silence on the part of the owner and the municipality means agreement and transfer of ownership to the holder of the right of pre-emption. It's an uphill battle to fight this intrusion into your property rights!
Stéphanie Swilklinski