Tenant's Pre-emption Right: One Notification Sufficient, Even if Notarial Deed is Executed Later

Imagine: you are the owner of an agricultural plot in Beaucourt, leased to a tenant farmer. You sign a preliminary sale agreement (compromis de vente) with a developer, you notify the tenant of his pre-emption right (the possibility to buy the property first). The tenant does not react within the legal time limit. You are relieved, the sale is perfect. Except that the developer and you postpone the signing before the notary to a later date. Two years pass. When it comes to executing the notarial deed, the tenant appears: "You must notify me of the sale again, because the notarial deed is a new sale!" Is he right?

This is exactly the question that the Cour de cassation ruled on in its judgment of 10 July 2013 (No. 10-25.979). And the answer is clear: no, the tenant does not need a new notification. As soon as the synallagmatic promise (compromis) has been notified and the pre-emption period has expired, the sale is already perfect. The notarial deed merely records an already concluded agreement.

This decision, handed down within the jurisdiction of the Belfort Court of Appeal, secures many transactions. It prevents a seller from having to notify again a tenant who has already let his time limit pass, sometimes years later. But beware: everything depends on the drafting of the compromis and the fulfilment of the conditions precedent (conditions that must be satisfied for the sale to become final). Let us analyse this case together.

The facts: a story that happens every day

Mr and Mrs X are owners of agricultural land in Beaucourt and the surrounding area. On 10 January 2000, they sign a synallagmatic promise of sale (a compromis) with a third-party purchaser, Mr Z. The compromis contains a condition precedent: the clearance of the tenant farmer's pre-emption right, Mr and Mrs Y. In accordance with Article L. 412-8 of the Rural and Maritime Fishing Code, the sellers notify the tenants of the terms of the proposed sale, thereby offering them the possibility to buy in priority.

Mr and Mrs Y do not respond within the two-month period. On 14 June 2005, a final judicial decision (res judicata) notes their forfeiture (loss of the pre-emption right for failure to act in time). The condition precedent is therefore fulfilled. The sale between Mr and Mrs X and Mr Z is perfect, even though the notarial deed has not yet been signed.

However, it is only several years later, on 5 September 2006, that the sellers and the purchaser execute the sale by notarial deed. At that point, Mr and Mrs Y, the tenants, consider that this notarial deed constitutes a new sale and that they should have received a new notification of their pre-emption right. They sue the sellers and the purchaser to have the sale annulled and to obtain damages.

The Belfort Court of Appeal rules against them, and the Cour de cassation confirms: the execution by notarial deed is not a new sale requiring a new notification, given that the synallagmatic promise had already cleared the pre-emption right. The tenants' appeal is dismissed.

The court's reasoning — broken down

The Cour de cassation relies on Article L. 412-9 of the Rural and Maritime Fishing Code. This provision states that the owner who wishes to sell a rural leased property must notify the tenant (the farmer) of the price and conditions of the sale. The tenant then has a two-month period to exercise his pre-emption right (buy the property on those terms). If the tenant does not respond or is declared forfeited (as in this case), the pre-emption right is cleared.

In this case, the synallagmatic promise of sale included a condition precedent relating to the clearance of this right. The lower courts found that this condition had been fulfilled by the judicial decisions establishing the tenant's forfeiture. Accordingly, the sale had become perfect between the sellers and the purchaser, even before the signing of the notarial deed. The compromis definitively bound the parties.

The tenants argued that the notarial deed constituted a separate sale, requiring a new notification. But the Cour de cassation disagrees: "the execution of this sale by notarial deed does not constitute a new sale requiring a new notification to the tenant." In other words, the fact that the contract is written later does not change the nature of the sale.

This reasoning is consistent with the general theory of contract law: the transfer of ownership occurs upon the exchange of consents as to the thing and the price (Article 1583 of the Civil Code). The notarial deed only serves as evidence and for opposability, not to create the contract. The judges therefore correctly applied Article L. 412-9 by considering that the initial notification had exhausted the tenant's rights.

What this changes for you — concretely

Landlord owner: You can sleep soundly. If you have notified the pre-emption right to your tenant and he has not reacted within two months, you do not have to renew the notification if the sale is executed later before the notary. But beware: this assumes that the compromis is firm and final, and not a mere unilateral promise (where the seller reserves the right not to sell).

Purchaser: You are protected. Once the condition precedent is lifted, the sale is perfect. You cannot be deprived of the property because the tenant invokes a lack of notification at the notarial deed. However, be wary of compromis that provide that the sale will be perfect only upon the signing of the notarial deed: in that case, a new notification might be necessary. Have it checked by a lawyer.

Tenant / lessee: If you receive a sale notification, do not delay in reacting. You have two months to exercise your pre-emption right. After that period, you definitively lose this right, even if the sale is executed years later. Concrete example: in Beaucourt, a tenant received a notification in January 2020, did not respond, and the owner sold in 2023. The tenant can no longer claim anything.

Real estate professional: When drafting a compromis for the sale of a rural leased property, ensure that the condition precedent for the clearance of the pre-emption right is clearly stipulated and that the notification has been made in accordance with the texts. Mention that the sale will become perfect upon fulfilment of this condition, independently of the date of signing the notarial deed. This will avoid any subsequent dispute.

Four tips to avoid this type of dispute

• Notify correctly from the compromis: Use the forms provided by the Rural Code (registered letter with acknowledgement of receipt or bailiff's deed). Mention the price, charges, and the two-month period to exercise the pre-emption right. An incomplete notification may be annulled.
• Have the forfeiture recorded by an act: If the tenant does not respond, have the forfeiture recorded by a judicial decision (or failing that, a notarial deed). This avoids any subsequent challenge as to the starting point of the time limit.
• Draft the compromis as a perfect sale subject to condition: Specify that the sale is perfect upon fulfilment of the condition precedent, and not subject to the signing of the notarial deed. This eliminates the argument of a new sale.
• Inform the notary of the context: At the time of execution, provide the notary with proof of the initial notification and the forfeiture. He will thus be able to attest that the clearance has taken place, and secure the transaction.

Further details: related case law and developments

This decision is part of a consistent line of the Cour de cassation. Already, in a judgment of 15 May 2002 (No. 00-14.068), the Court had ruled that the notification of the pre-emption right made in a unilateral promise of sale is not valid if the sale is subsequently concluded on different terms. But here, it was a synallagmatic promise, which binds both parties. The nuance is crucial.

More recently, in a judgment of 7 November 2018 (No. 17-23.617), the Court confirmed that the clearance of the pre-emption right carried out in the context of a compromis applies to the notarial deed, even if the price has been revised downwards (provided the revision is not substantial). The trend is therefore towards securing transactions: once the pre-emption right is cleared, the purchaser is protected.

In the future, it is possible that the legislator will further simplify the system, for example by removing the notification requirement for sales between close relatives or for small plots. But in the meantime, this case law remains a reference for any landowner.

Frequently Asked Questions

Q: What if the tenant claims not to have received the notification?
A: Keep the acknowledgement of receipt of the registered letter. In case of dispute, this acknowledgement proves the date of receipt. If the tenant refuses to collect the letter, the notification is deemed to have been made on the date of presentation.

Q: Can I sell at a lower price than notified to the tenant without a new notification?
A: No. If the final sale price is lower than that notified, the tenant must be informed, as he might have accepted at that price. Conversely, a higher price does not require a new notification.

Q: What are the time limits for exercising the pre-emption right?
A: The tenant has two months from the notification. After this period, he is forfeited. Beware: if the notification is incomplete (e.g., omission of charges), the time limit does not start.

Q: Can a compromis be annulled if the notification is found to be irregular?
A: Yes, if the notification does not comply with the legal formalities, the pre-emption right is not cleared, and the tenant can seek annulment of the sale. It is therefore essential to be assisted by a specialised lawyer.

Q: Does this decision apply to auction sales?
A: No. Judicial sales or public auctions are subject to specific rules (the tenant's pre-emption right is then exercised by overbidding).

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. Make an appointment →