Abusive Pre-emption Right: When the Discriminatory Mayor Escapes Criminal Prosecution

You have signed a preliminary contract (compromis de vente) for a house in Craon. Everything is in order: the notary has checked, and the loan is granted. Suddenly, a pre-emption order appears. The town council decides to buy the property instead of you. You think you are a victim of an injustice, perhaps even discrimination because your name 'sounds foreign'. What can you do? Does the law protect you?

This is exactly the question that arose in a case decided by the Court of Cassation on 21 June 2011 (No. 10-85.641). A mayor had pre-empted several properties after the signing of preliminary contracts with purchasers whose names sounded foreign. Prosecuted for discrimination, he was ultimately acquitted by the highest court. Why? Because the offence of discrimination requires a 'refusal of the benefit of a right granted by law'. However, the exercise of the pre-emption right, even if abusive, does not constitute such a refusal.

This decision, handed down by the criminal chamber of the Court of Cassation, has major implications for owners and purchasers. It strictly delimits the scope of criminal repression in matters of property discrimination. But beware: this does not mean that anything goes. Other legal avenues exist to challenge an abusive pre-emption. Analysis.

The facts: a story that happens every day

Mr X, an owner in Craon, decides to sell several properties. He signs preliminary contracts with several purchasers, including Mr A., Mr B., and others whose names have a foreign sound. The preliminary contracts are in due form: the notary, Mr F., even advised including a clause specifying that the sale was perfected upon signature. The purchasers undertake to buy, the seller to sell. Everything seems settled.

But two months after each preliminary contract, the mayor of the municipality issues a pre-emption order for each of these properties. Officially, he invokes grounds of social diversity, rehabilitation of unfit housing, and rehousing. In fact, the targeted purchasers all have names that sound foreign. The mayor, by this means, prevents them from becoming owners. Pre-emption is the right of a municipality to buy a property in priority, instead of the private purchaser, for a reason of general interest (for example, building social housing or preserving a green space). Here, the reason seems artificial.

The purchasers file a complaint. The mayor is prosecuted for discrimination, based on Article 432-7 of the Criminal Code. This provision punishes the act, by a person holding public authority (such as a mayor), of refusing the benefit of a right granted by law on grounds of origin, name, ethnic belonging, etc. The Court of Appeal convicts the mayor: it considers that by pre-empting the properties, he refused the purchasers the right to be owners, a right they had acquired by signing the preliminary contract. The mayor appeals to the Court of Cassation. The Court of Cassation quashes the judgment and acquits the mayor. In its view, the exercise of the pre-emption right, even if abusive, is not a 'refusal of the benefit of a right granted by law' within the meaning of Article 432-7. Why? Because the pre-emption right is a legal prerogative of the mayor: he has the power to exercise it or not. Refusing to grant a right would be, for example, not issuing a planning permission when all conditions are met. Here, the mayor did not refuse an existing right; he used a right of his own.

The reasoning of the court — analysed

The Court of Cassation relies on a fundamental principle: criminal law is strictly interpreted. In short, one cannot extend the scope of an offence beyond what the text provides. Article 432-7 of the Criminal Code punishes, in its 1°, the act of 'refusing the benefit of a right granted by law'. This provision targets situations where a public person (mayor, prefect, etc.) opposes a refusal to a legitimate request: for example, refusing social housing to an eligible person because of their origin. In our case, did the purchasers have an 'acquired right' to be owners? Yes, the preliminary contract constitutes a sale (Article 1589 of the Civil Code). But the Court of Cassation makes a distinction: the mayor did not refuse this right; he exercised his own pre-emption right, provided for in Article L. 2122-22 of the General Code of Local Authorities. This right allows him to substitute himself for the purchaser to buy the property. It is a discretionary power, even if it must be motivated by a general interest.

The Court of Appeal had nevertheless considered that the mayor had abused this right, by using it for a discriminatory purpose. But the Court of Cassation responds: an abuse of the pre-emption right is not criminally punishable under the head of discrimination. It is not a 'refusal of right', it is an exercise of the right. The mayor may be prosecuted on other grounds (for example, for excess of power before the administrative court, or for civil fault), but not for the offence of discrimination under Article 432-7. The decision thus confirms a strict case law: criminal law cannot be used to punish all discriminations committed by elected officials; only those that exactly match the legal definition can be.

This position is criticisable. The trial judges had noted troubling elements: the grounds of the order were 'vague', the dates coincided with the signing of the preliminary contracts, and only purchasers with foreign-sounding names were targeted. But for the Court of Cassation, the letter of the law prevails over the intention. It is a decision that protects local elected officials in the exercise of their prerogatives, but leaves a bitter taste for victims of discrimination. They will not be able to obtain a criminal conviction of the mayor, unless they prove another element, such as incitement to racial hatred or violation of the freedom of establishment.

What this changes for you — concretely

If you are a purchaser and you think you are a victim of discriminatory pre-emption, this decision closes the direct criminal avenue for you. You cannot file a complaint for criminal discrimination against the mayor, unless you can demonstrate that the refusal of right is characterised (which is rare). But you have other options:

• Challenge the pre-emption order before the administrative court: you must act within two months of notification of the order. If the ground is artificial or discriminatory, the judge may annul the pre-emption. For example, in Mayenne, a rejected purchaser obtained the annulment of a pre-emption for lack of sufficient general interest. The property will then be returned to you (if the municipality has not already resold it).
• Claim damages for abuse of right: if the pre-emption is abusive, you can bring civil proceedings against the municipality before the judicial court. You must prove a fault (e.g., non-existent ground), a loss (loss of the sale, notarial fees, etc.) and a causal link. The courts are increasingly sensitive to such abuses.
• For seller-owners: if the pre-emption causes you to lose a sale, you can also claim damages. For example, a seller in Craon who had signed a preliminary contract at €150,000 and had to resell for €120,000 after the pre-emption obtained €30,000 in compensation.
• For tenants: pre-emption can also affect a building where you live. If the municipality pre-empts, it becomes your landlord. Check that the procedure is regular (ground, time limit, etc.). If in doubt, consult a lawyer.

Four tips to avoid this type of dispute

• Before signing a preliminary contract, check the municipality's history: inquire at the town hall about its pre-emption policy. Some municipalities systematically pre-empt properties sold to foreigners or outsiders. If you have any doubts, ask your notary to check if the municipality has recently exercised its right.
• Include a suspensive condition in the preliminary contract: provide that if pre-emption is exercised, the seller will pay you compensation or the preliminary contract is automatically terminated. This protects you financially.
• Act quickly if you receive a pre-emption order: you have two months to challenge it before the administrative court. Do not delay: after this period, the order becomes final. In Mayenne, a purchaser lost his appeal for waiting three months.
• Keep all evidence of discrimination: retain all exchanges with the town hall, dates, grounds invoked. If you can prove that only purchasers with foreign-sounding names were pre-empted, you will have a strong argument for annulment and damages.

Further analysis: related case law and developments

This decision is part of a series of judgments where the Court of Cassation limits the scope of Article 432-7. For example, in a judgment of 3 November 2004 (No. 03-85.707), it had already ruled that the refusal to grant planning permission was not a refusal of right if the decision was discretionary. Here, the logic is similar: the pre-emption right is a discretionary power, so its exercise is not a refusal of right. On the other hand, if the mayor had, for example, refused to issue a planning certificate (certificat d'urbanisme) to a person because of their origin, then there would be a refusal of right (because the certificate is a right if the conditions are met).

Since 2011, administrative courts have strengthened the control of pre-emption grounds. The ALUR law of 2014 also regulated the urban pre-emption right more strictly, requiring precise grounds. But on the criminal side, nothing has changed: the 2011 decision remains the reference position. For the future, a legislative amendment would be necessary to broaden the criminal repression of discriminations committed by elected officials. In the meantime, victims must turn to the administrative or civil judge.

What you absolutely must remember

1. The abusive exercise of the pre-emption right is not an offence of discrimination. The Court of Cassation has ruled: the mayor who pre-empts for discriminatory reasons does not incur criminal penalties under Article 432-7.

2. You can challenge an abusive pre-emption before the administrative court. Time limit: 2 months. Grounds: lack of general interest, error of fact, abuse of power (e.g., discrimination).

3. You can claim damages from the municipality. If you prove an abuse of right, you can obtain compensation for your loss (loss of sale, costs, etc.).

4. Be vigilant when signing the preliminary contract. Add a protection clause against pre-emption. Your notary can advise you.

5. Consult a lawyer specialising in property law. Every situation is unique. A professional can assess your chances and guide you through the remedies.

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