Right of Pre-emption: When the Dispossessed Purchaser Loses Their Recourse After Accepting the Offer from the Holder

Imagine: you are about to buy the house of your dreams in Offemont, near Belfort. The preliminary contract is signed, the mortgage obtained, the boxes are ready. Suddenly, the municipality exercises its right of pre-emption (the right for a public authority to buy a property in priority, at a set price) and you are dispossessed. Frustrating, isn't it? But what happens if, after your dispossession, the municipality offers to sell you the property at the same price? And if you accept, can you still challenge the initial sale between the owner and the municipality? This is precisely the question that the Court of Cassation decided in a judgment of 7 September 2022.

This decision, rendered in a case that could have taken place in Belfort, answers a question that many owners and purchasers ask: once the dispossessed purchaser has accepted the offer from the holder of the right of pre-emption, can they still request the annulment of the initial sale? The answer is no, and it is final. Let us break down this decision and its practical implications together.

Maître Cécile Zakine, a solicitor specialising in property law, explains to you step by step this case law which changes the game for any dispute relating to the right of pre-emption, whether you are in Belfort, Offemont or elsewhere in France.

The Facts: A Story Like Those That Happen Every Day

The story begins with the sale of a property. An owner, let us call him Mr Dupont, decides to sell his house to an individual, Mr Martin. A preliminary contract is signed. But the municipality, the holder of the urban right of pre-emption (a right granted by Article L. 213-1 of the French Urban Planning Code which allows a public authority to buy a property in priority for projects of general interest), decides to exercise this right and substitutes itself for the purchaser. Mr Martin is dispossessed.

In accordance with Article L. 213-11-1 of the French Urban Planning Code (which obliges the holder of the right of pre-emption to offer the acquisition of the property to the former owner, and then to the dispossessed purchaser, if the former owner renounces), the municipality first offers Mr Dupont to buy back his property. Mr Dupont refuses. Then, the municipality offers the sale to Mr Martin, the dispossessed purchaser. Mr Martin accepts and signs a contract of sale with the municipality.

But Mr Martin is not satisfied: he considers that the initial sale price was too high and that the municipality should have complied with certain formalities. He therefore decides to sue the municipality to seek the annulment of the initial sale between Mr Dupont and the municipality. The Court of Appeal dismisses his claim, holding that by accepting the offer, he waived any recourse. Mr Martin appeals to the Court of Cassation.

The Court of Cassation, in its judgment of 7 September 2022, dismisses his appeal. It confirms that from the moment the dispossessed purchaser accepts the offer made to them pursuant to Article L. 213-11-1, they are no longer admissible to seek the annulment of the sale concluded between the former owner and the holder of the right of pre-emption. In other words, once they have accepted, they cannot go back.

The Reasoning of the Court — Analysed

The Court of Cassation relies on Article L. 213-11-1 of the French Urban Planning Code. This provision sets out a two-step procedure: first, the holder of the right of pre-emption must offer the acquisition of the property to the former owner (the one who sold). If the former owner renounces, then the holder must offer the acquisition to the dispossessed purchaser (the one who had signed the preliminary contract). If the dispossessed purchaser accepts, the sale takes place between them and the holder of the right of pre-emption.

In short, the legislature intended to give the dispossessed purchaser a chance to acquire the property despite the exercise of the right of pre-emption. But this favour comes at a price: the purchaser must definitively accept the situation. The Court of Cassation explains that acceptance of the offer necessarily entails a waiver of any recourse against the initial sale. Why? Because the dispossessed purchaser cannot both benefit from the sale and challenge it. That would be contradictory.

However, note: the Court does not say that the dispossessed purchaser can never challenge a pre-emption decision. If the municipality did not comply with the legal formalities (for example, if it did not give reasons for its pre-emption decision), the purchaser can still take legal action before accepting the offer. But once they have accepted, the path of recourse is closed to them.

What few people know is that this solution is part of a logic of securing real estate transactions. The judges want to avoid sales being challenged years later, which would harm legal certainty (the stability of legal situations). undefined, I have come across cases where dispossessed purchasers hesitated to accept an offer, fearing that they would lose their rights. This decision clarifies things: accepting means turning the page.

What This Changes for You — Practically

For a landlord owner in Belfort: if you sell a property and the municipality exercises its right of pre-emption, you should know that the dispossessed purchaser can still buy it if you refuse to buy it back. But if the purchaser accepts, the sale is final. You cannot hope that the purchaser will attack the sale to try to obtain a better price: they have accepted, so it is over.

For a dispossessed purchaser: if you receive an offer from the holder of the right of pre-emption, carefully weigh the pros and cons before accepting. Once you have signed, you can no longer challenge the price or the conditions of the initial sale. Concrete example: in Offemont, a building plot of 500 m² is put up for sale at €100,000. The municipality pre-empts, then offers to sell it to you at the same price. If you accept, you cannot later seek annulment by arguing that the price was too high compared to the market. You are bound.

For a real estate professional: this decision strengthens the security of transactions. You can advise your client purchaser to accept the offer without fear of subsequent litigation, but only after verifying that the pre-emption procedure is regular. If there are irregularities, they must be challenged before accepting.

If you are in this situation, you must act quickly: the time limit to challenge a pre-emption decision is generally two months from its notification. After this period, you risk losing any recourse.

Four Tips to Avoid This Type of Dispute

• Check the regularity of the pre-emption decision as soon as it is notified: ensure that the municipality has properly justified its decision (for example, by justifying a project of general interest) and complied with the legal time limits. If in doubt, consult a solicitor quickly.
• Do not sign the acquisition offer without having examined all the options: ask for a period of reflection. If you think the price is excessive, you can challenge the pre-emption decision before the administrative court before accepting the offer.
• Document all steps: keep the municipality's letters, the initial preliminary contract, the notifications. In the event of a dispute, these documents will be essential to prove the sequence of events.
• Anticipate the risk of pre-emption in your sale contract: if you are a seller, include a clause obliging the purchaser to inform you of any offer from the municipality and to involve you in the procedure. This will allow you to react in time.

Besoin d'un conseil personnalisé ? Contactez Maître Zakine — première consultation 30 min à 45€.

Further Reading: Related Case Law and Developments

This decision is part of a consistent line of the Court of Cassation. Already, in a judgment of 15 May 2019 (No. 18-14.567), the Court had held that the dispossessed purchaser who accepts the offer can no longer challenge the validity of the sale. The 2022 judgment confirms this solution and clarifies it by applying it to the scenario where the former owner first renounced.

On the other hand, if the dispossessed purchaser refuses the offer, they retain their right to challenge the pre-emption decision. In that case, they can seek annulment of the sale if the municipality did not comply with the rules. The trend of the courts is therefore clear: once acceptance is given, the dispute is closed.

For the future, one can expect this rule to be extended to other scenarios, such as the right of pre-emption of SAFER (Sociétés d'Aménagement Foncier et d'Établissement Rural) or tenants in the case of the sale of a dwelling. Legal certainty is a major objective of recent case law.

Frequently Asked Questions

Can I refuse the offer from the holder of the right of pre-emption and still challenge the sale? Yes, it is possible. If you refuse the offer, you retain your right to challenge the pre-emption decision. But you lose the chance to acquire the property at the offered price.

What if I have already accepted the offer but later discover an irregularity? Unfortunately, according to this decision, you can no longer take action. It is therefore crucial to verify the regularity before accepting.

What are the time limits for challenging a pre-emption decision? You have two months from the notification of the decision to bring the matter before the administrative court. After this period, the decision becomes final.

Can the seller also challenge the sale after having renounced their right of repurchase? No, once they have renounced, they cannot go back. The sale between the holder and the dispossessed purchaser is final.

Does this rule also apply in the case of pre-emption by a tenant? Not directly, but the reasoning could be transposed. Consult a solicitor for a case-by-case analysis.

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 →