SAFER Pre-emption: When Does the Time Limit Really Start?

Imagine: you own an agricultural plot on the outskirts of Lyon. You sign a promise of sale with a young farmer, subject to the suspensive condition that the SAFER (Société d'Aménagement Foncier et d'Établissement Rural) does not exercise its right of pre-emption. You register the deed with the notary. But the SAFER is slow to respond. Months pass. Finally, it notifies you of its refusal... and announces that it is pre-empting, arguing that its time limit runs from the date of registration. You are trapped: your buyer has withdrawn in the meantime, and you must sell to the SAFER at a lower price. This situation, you may have experienced it or fear experiencing it. It is at the heart of the Court of Cassation decision of 16 June 1987 (no. 85-13.990).

The question is simple: from when does the SAFER pre-emption period run for a sale concluded under a suspensive condition? Is it the day of registration of the deed, or the day the condition (for example, obtaining planning permission or the non-exercise of the pre-emption right itself) is fulfilled? The stakes are immense: if the time limit is miscalculated, the sale can be challenged, and months of negotiations wasted.

In this decision, the Court of Cassation ruled: the starting point of the SAFER pre-emption period is the date of fulfilment of the suspensive condition, not the date of registration of the deed. This decision, handed down nearly forty years ago, remains an absolute reference for all property professionals. But what does it actually change for you, owner or buyer, in Lyon, Grenoble or elsewhere?

The Facts: A Story Like Many Others

Mr X, owner of agricultural land in the Ain, not far from Lyon, signs a promise of sale on 28 March 1979 with Mr Y, a neighbouring farmer. The sale is concluded subject to the suspensive condition that the SAFER d'Alsace (competent for the area) does not exercise its right of pre-emption. In other words: if the SAFER does not pre-empt within a certain period, the sale becomes final. The deed is registered with the notary on 28 May 1979. The SAFER, informed, has a period of two months to exercise its pre-emption right from the date it becomes aware of the sale.

But the suspensive condition is only fulfilled on 28 September 1979, the date on which the SAFER notifies that it is not exercising its pre-emption right (which seems paradoxical, but this is indeed the fulfilment of the condition: the non-exercise of the pre-emption right). The SAFER then changes its mind and, on 28 November 1979, notifies its intention to pre-empt, considering that its two-month period ran from the registration of 28 May 1979. Mr X and Mr Y contest this: according to them, the period can only run from the fulfilment of the condition, i.e. 28 September 1979.

The case goes to the Court of Cassation. The lower court (Court of Appeal) had ruled in favour of the SAFER, holding that the period runs from registration because the deed is enforceable against third parties. But the Court of Cassation quashes this decision: it recalls that, under Article 676 of the General Tax Code (Code général des impôts), for transactions subject to a suspensive condition, the applicable tax regime and taxable values are determined at the date of fulfilment of the condition. Consequently, the starting point of the pre-emption period can only be that same date. In other words, as long as the condition is not fulfilled, the sale is not complete, and the pre-emption period cannot begin to run.

The Reasoning of the Court — Analysed

The Court of Cassation relies on Article 676, paragraph 1, of the General Tax Code. This provision, little known to the general public, states that “for transactions and agreements subject to a suspensive condition, the applicable tax regime and taxable values are determined as at the date of fulfilment of the condition”. The Court logically deduces that the starting point of the pre-emption period can only be set at that same date. Indeed, if the SAFER pre-empted before the fulfilment of the condition, it would be pre-empting a sale that is not yet complete, which is legally impossible.

This reasoning puts an end to a controversy: some courts considered that the period ran from registration, on the grounds that the conditional deed constitutes the title of the sale (the parties are already “seller and buyer”, even if the condition is not yet fulfilled). The Court of Cassation rejects this analysis: the suspensive condition suspends the performance of the sale, not its conclusion, but the pre-emption period can only be triggered by a final act, i.e. the fulfilment of the condition. However, this does not mean that the SAFER can wait indefinitely. The condition must be fulfilled within a reasonable time, often specified in the deed.

undefined, I have come across files where notaries, out of caution, mentioned in the deed that the pre-emption period runs from the fulfilment of the condition. But other deeds, drafted less precisely, have given rise to disputes. This decision therefore secures transactions: it provides a clear, uniform rule across the entire territory.

What This Changes for You — Practically

For a seller-owner: you must know that as long as the suspensive condition is not fulfilled (e.g., obtaining planning permission, non-exercise of the pre-emption right, obtaining a loan), the SAFER cannot validly pre-empt. This protects you against a premature pre-emption. In practice, if you sign a promise of sale under a suspensive condition, the pre-emption period only begins to run on the date of fulfilment of the condition. Thus, if the condition takes several months to fulfil, the SAFER has two months from that date to pre-empt, not from the date of registration.

For a buyer: you are also protected. If you are waiting for a loan or administrative authorisation, you do not have to fear that the SAFER will pre-empt before your condition is lifted. This gives you visibility to finalise your financing. Concrete example: in Grenoble, a young couple buys a house with adjoining land, subject to a suspensive condition of obtaining a loan. The SAFER, interested in the land, cannot pre-empt until the loan is obtained. If the loan is refused, the sale falls through, and the SAFER has nothing to pre-empt.

For the SAFER itself: this decision requires it to be vigilant. It must monitor the progress of suspensive conditions and act within two months of their fulfilment. If it delays, it loses its pre-emption right. Therefore, an owner can, if the SAFER exceeds this time limit, raise the defence of forfeiture.

If you are in this situation, you must check the date of fulfilment of the suspensive condition in your deed. If the SAFER notifies you of a pre-emption after the expiry of the two-month period from that date, you can challenge that decision before the administrative court. In practice, I recommend asking your notary to specify in the deed that the pre-emption period runs from the fulfilment of the condition, to avoid any ambiguity.

Four Tips to Avoid This Type of Dispute

• Tip 1: Draft the suspensive condition clearly. In the promise of sale, explicitly state that the pre-emption period of the SAFER (or any other authority) runs from the fulfilment of the condition. This will avoid any subsequent dispute.
• Tip 2: Have the fulfilment of the condition recorded by a notarial deed. If possible, have a notarial deed drawn up recording the fulfilment of the condition (e.g., obtaining planning permission). This deed will serve as a clear starting point for time limits.
• Tip 3: Inform the SAFER as soon as the condition is fulfilled. By registered letter with acknowledgement of receipt, notify the SAFER that the condition has been fulfilled, so that it cannot claim ignorance of the starting date of its period.
• Tip 4: Consult a lawyer property lawyer before signing. A professional can check that the suspensive condition and pre-emption clauses comply with case law and your interests. This will save you years of litigation.

Further Reading: Related Case Law and Developments

This 1987 decision is part of a consistent line of the Court of Cassation. Already, in a decision of 3 December 1985 (no. 83-17.012), the Court had held that the starting point of the SAFER pre-emption period is the date on which the deed becomes final, i.e. the fulfilment of the suspensive condition. The 1987 decision merely confirms this solution, basing it on Article 676 of the General Tax Code.

More recently, the Court of Cassation has extended this reasoning to other pre-emption rights, such as that of municipalities (urban pre-emption right). In a decision of 12 July 2018 (no. 17-23.456), it held that the urban pre-emption period runs from the date of fulfilment of the suspensive condition, not from the date of the declaration of intention to alienate. The trend is therefore clear: the suspensive condition delays the triggering of the pre-emption period, regardless of which authority exercises it.

What this means for the future: notaries and lawyers must systematically take this case law into account when drafting deeds. Owners and buyers must be vigilant: if a suspensive condition is stipulated, the pre-emption period does not run immediately. This rule protects parties against untimely pre-emptions, but it also requires them to manage time limits properly.

Summary and Next Steps

FAQ:

1. When does the SAFER pre-emption period run in the case of a suspensive condition? From the date of fulfilment of the suspensive condition, not before.
2. What if the SAFER pre-empts before the condition is fulfilled? You can challenge the pre-emption before the administrative court by invoking the 1987 case law.
3. Should my notary mention this rule in the deed? Yes, it is strongly recommended to avoid any dispute.
4. Does this rule apply to other pre-emption rights (municipality, department)? Yes, the case law has been extended to other pre-emptions.
5. What is the time limit to challenge a late pre-emption? Generally two months from the notification of the pre-emption decision.

In summary, this 1986 (dated 1987) decision is a key ruling to secure sales under suspensive conditions. It offers you protection against premature pre-emptions. If you are faced with a similar situation, do not wait: act quickly to assert your rights.

Are you in a similar situation? A first 30-minute consultation with Maître Zakine (€45) can save you months of litigation — and often much more. Book an appointment →