Right of Pre-emption and Discrimination: When Can the Mayor Refuse a Sale?

Imagine: you are the owner of a flat in Saint-Laurent-du-Var. You sign a preliminary sale agreement with serious buyers. Everything is going well, until the town council decides to pre-empt the property, i.e., to buy it instead of you. But why? Because the buyers' name sounds foreign? This is precisely what happened in this case that shook the legal world.

The question every owner asks: can a mayor use his right of pre-emption (the right of the municipality to buy a property in priority) for discriminatory reasons? And if so, can he be criminally convicted? The answer from the Court of Cassation is more nuanced than it appears.

In this article, we will dissect this decision of 17 June 2008, which set a precedent. You will discover what the judges actually said, and above all, what this means for you, whether you are an owner, buyer or property professional in the Alpes-Maritimes or elsewhere.

The Facts: A Story That Happens Every Day

In 1996, Mr and Mrs Y., a couple of foreign origin (their North African-sounding name suggested an affiliation with Islam), signed a preliminary sale agreement to buy a house in Beausoleil, in the Nice hinterland. The price: 644,000 francs (about 98,000 euros). The seller, Mr X., was delighted. But the town council of Beausoleil, through its mayor, decided to exercise its urban pre-emption right (the right of the municipality to buy the property instead of the buyer at the same price).

The mayor justified his decision by a project to extend the sewerage network. Problem: Mr and Mrs Y. believed the real reason was their origin. They filed a complaint for discrimination (Article 432-7 of the Criminal Code, which punishes the act of refusing a person the benefit of a right because of his origin).

The Aix-en-Provence Court of Appeal sentenced the mayor to a 5,000 euro fine and damages. But the mayor appealed to the Court of Cassation. The Court of Cassation quashed the judgment: in its view, the right of pre-emption is not a "right granted by law" within the meaning of Article 432-7, even if its exercise is abusive. In other words, a mayor cannot be criminally prosecuted for discrimination in the exercise of his right of pre-emption.

The Reasoning of the Court — Explained

The heart of the problem is the interpretation of Article 432-7 of the Criminal Code, which defines the offence of discrimination committed by a person holding public authority. This article lists several cases, the first being: "the refusal of the benefit of a right granted by law." The question was: is the right to acquire immovable property and to freely choose one's place of residence a "right granted by law"?

The Court of Appeal answered yes. But the Court of Cassation said no. Why? Because criminal law is strictly interpreted (fundamental principle: the scope of an offence cannot be extended by analogy). The right of pre-emption, even if it prevents the acquisition, is not a refusal of the right to acquire: it is a legal mechanism that allows the municipality to buy instead of the buyer. In short, the mayor did not refuse a right; he simply exercised a prerogative that the law gives him.

Note, however: the Court does not validate discrimination. It simply says that the offence of discrimination is not made out in this particular case. The mayor could have been prosecuted for abuse of right (misuse of power) before the administrative court, but not before the criminal court for discrimination.

What few people know is that the Court of Cassation has already ruled on similar cases. For example, in a judgment of 6 February 2007, it held that the refusal to sell a property to a person because of his origin was not an offence of discrimination if the seller was a private individual, because Article 432-7 only concerns persons holding public authority. Here, the mayor is indeed such a person, but the incriminated act (the pre-emption) is not a "refusal of a right."

What This Means for You — Practically

For selling owners: If the municipality pre-empts your property, you cannot invoke criminal discrimination against the mayor. But you can challenge the pre-emption before the administrative court for misuse of power (for example, if the sewerage project does not really exist). undefined, I have seen cases where owners in Saint-Laurent-du-Var obtained the annulment of the pre-emption by proving that the municipality had no real project.

For buyers: You can claim damages for abuse of right, but not on a criminal basis. You must act quickly: the time limit to challenge a pre-emption decision is two months from its notification.

For property professionals: Be vigilant: if a client reports discriminatory remarks by an elected official, refer them to a lawyer specialised in administrative law, not just criminal law.

Example with figures: In Beausoleil, a property pre-empted at 200,000 euros can have its sale blocked for months. If the pre-emption is abusive, you can claim compensation for the loss (loss of sale, agency fees, etc.). But beware: administrative judges are strict on proof of misuse of power.

Four Tips to Avoid This Type of Dispute

• Before signing a preliminary agreement, check whether the municipality has a right of pre-emption. Consult the local town planning plan (PLU) or request a planning certificate. In Saint-Laurent-du-Var, some areas are subject to pre-emption.
• If the town council pre-empts, immediately ask for the precise reasons. The decision must be reasoned. If the reason is vague (e.g., "general interest"), challenge it within two months.
• Keep all evidence of discrimination. Emails, letters, witness statements. Even if the criminal route is closed, these elements can be used before the administrative judge.
• Consult a lawyer at the first signs. A poorly prepared appeal can be rejected for procedural defect. A 30-minute consultation can save you months of proceedings.

Further Analysis: Related Case Law and Developments

This 2008 decision is part of a strict line: the Court of Cassation refuses to extend the scope of Article 432-7. In a judgment of 3 November 2016 (No. 15-85.256), it held that the refusal to let a dwelling by a private landlord on discriminatory grounds fell under Article 225-2 of the Criminal Code (discrimination by a private individual), and not Article 432-7.

In administrative law, the trend is more favourable to victims: the Conseil d'État has annulled pre-emptions for misuse of power in several cases (e.g., CE, 28 July 2000, Commune de Saint-Denis). Recent case law confirms that the administrative judge is more protective than the criminal judge in these cases.

For the future, a legislative reform could clarify matters. But in the meantime, the distinction between abuse of right and criminal discrimination remains fundamental. Property professionals must be trained in these subtleties.

Key Points to Remember

• The right of pre-emption is not a "right granted by law" within the meaning of Article 432-7 of the Criminal Code. Even if abusive, it does not constitute an offence of discrimination.
• Discrimination can be pursued on other grounds: administrative (misuse of power) or civil (liability).
• Time limit for appeal: 2 months to challenge a pre-emption before the administrative court.
• Proof: it is difficult to prove discrimination. Only concrete elements (remarks, letters, absence of a project) can convince the judge.
• When in doubt, consult a lawyer. A misdirected action may be doomed to failure.

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 →