What are the risks of a sale concluded in breach of a preemption right?
A sale concluded without a declaration of intent to sell, or on terms more advantageous than those declared, is void. The holder of the preemption right can bring an action for nullity for five years from the publication of the deed of sale (Article L. 213-2 of the French Urban Planning Code).
The principle: the sale is void
Article L. 213-2 of the French Urban Planning Code makes any transfer subject to the preemption right conditional upon a prior declaration, on pain of nullity. The sanction strikes a sale concluded without a DIA, but also a sale concluded at a price or on terms more advantageous to the buyer than those brought to the municipality's attention, as well as a sale signed without waiting for the two-month response period to be cleared.
Nullity retroactively wipes out the sale: the property is deemed never to have left the seller's estate, and restitutions take place on both sides (return of the property against return of the price).
Who can bring the action for nullity and within what period
The action for nullity is time-barred five years after the publication of the deed transferring ownership at the land registry (Article L. 213-2 of the French Urban Planning Code). It comes before the judicial court, which rules on the validity of property sales.
According to the case law of the French Court of Cassation, this nullity protects the holder of the preemption right: it is therefore in principle for that holder, whether municipality, intermunicipal body or delegatee, to invoke it, and not for a seller or buyer seeking to escape the sale.
Tenant and SAFER: sanctions specific to each regime
Failure to clear the priority rights of the tenant or of the SAFER follows separate rules, with different legal bases and different periods within which to act.
Where the urban preemption right is breached (no DIA, or terms more advantageous than those declared), the nullity rests on Article L. 213-2 of the French Urban Planning Code and the action may be brought for five years from the publication of the deed. Where the SAFER's preemption right is breached, the nullity rests on Articles L. 143-8 and L. 412-12 of the French Rural and Maritime Fishing Code and the action may be brought for six months from the day the SAFER learns of the date of the sale. Where the tenant's preemption right in a sale by lots is breached, the express nullity of Article 10 of the French Law of 31 December 1975 applies, within the ordinary five-year limitation period (Article 2224 of the French Civil Code). Where the tenant's subsidiary right of first refusal after a notice to sell is breached, the express nullity of Article 15, II of the French Law of 6 July 1989 applies, likewise within the ordinary five-year limitation period (Article 2224 of the French Civil Code).
| Right disregarded | Basis of the nullity | Time limit to act |
|---|---|---|
| Urban pre-emption right (no DIA, or more favourable terms) | Article L. 213-2 of the Planning Code | 5 years from registration of the deed |
| SAFER pre-emption right (rural land agency) | Articles L. 143-8 and L. 412-12 of the Rural and Maritime Fishing Code | 6 months from the day SAFER learns the date of the sale |
| Tenant's pre-emption right on a sale by lots | Article 10 of the Act of 31 December 1975 (express nullity) | General 5-year limitation period (Article 2224 of the Civil Code) |
| Tenant's secondary pre-emption right after notice to sell | Article 15, II of the Act of 6 July 1989 (express nullity) | General 5-year limitation period (Article 2224 of the Civil Code) |
Sanctions for a sale concluded in disregard of a pre-emption or priority right
Practical consequences and liability
Annulment entails returning the property to the seller and the price to the buyer, with all the practical complications that follow: works carried out in the meantime, a resale that has already taken place, a mortgage still being repaid. A notary who has failed to clear a preemption right also incurs professional civil liability towards the injured parties.
In practice, the clearing of preemption rights is therefore systematically checked before the notarial deed is signed: a DIA in urban preemption zones, notification to the SAFER in rural areas, offers to the tenant in the cases provided for by the Law of 1989 and by the Law of 1975. Any doubt about the clearing should lead to postponing the signing rather than exposing the sale to annulment for several years.
Frequently asked questions
Can the buyer seek the nullity of a sale concluded without a DIA?
In principle no: according to the case law of the French Court of Cassation, the nullity provided for by Article L. 213-2 of the French Urban Planning Code protects the holder of the preemption right, which is in principle alone entitled to invoke it. An injured buyer may however seek to hold the notary liable.
When does the five-year period start to run?
The limitation period for the action for nullity runs from the publication of the deed transferring ownership at the land registry (Article L. 213-2 of the French Urban Planning Code), not from the signing of the deed.
Is it risky to sell for less than the price declared in the DIA?
Yes. A sale concluded at a price or on terms more advantageous to the buyer than those declared in the DIA is exposed to nullity (Article L. 213-2 of the French Urban Planning Code). Notarial practice requires filing a new DIA before signing on amended terms.
Is the notary liable if a preemption right has not been cleared?
A notary, who must ensure the effectiveness of the deeds they receive, incurs professional civil liability if they fail to clear a preemption or priority right and the sale is annulled. The injured parties can obtain damages.
Read next
- Code de l'urbanisme, article L213-2 (Légifrance)
- Code rural et de la pêche maritime, articles L143-8 et L412-12 (Légifrance)
- Loi n° 75-1351 du 31 décembre 1975, article 10 (Légifrance)
- Loi n° 89-462 du 6 juillet 1989, article 15, II (Légifrance)
- Code civil, article 2224 (Légifrance)
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