Right of pre-emption: SAFERs broaden their scope of action

Imagine yourself in Brignoles: you are the owner of agricultural land that you wish to sell to a neighbour who wants to plant olive trees there. Suddenly, the SAFER (Société d'Aménagement Foncier et d'Établissement Rural) appears and pre-empts your sale. Why? To preserve a wetland sheltering protected species, even though the buyer had an agricultural project. You wonder: can the SAFER really block a sale for environmental reasons without a direct link to agriculture?

This question is answered by the Court of Cassation in a judgment of 11 July 2024. It confirms that Article L. 143-2, 8° of the Rural and Maritime Fishing Code (CRPM) authorises the SAFER to pre-empt to protect the environment, mainly through adapted agricultural practices, but not exclusively. In other words, the SAFER can act even if the environmental objective does not involve agriculture. A decision that reshuffles the cards for owners and buyers.

In this article, I dissect this decision, its practical implications and give you practical advice to avoid nasty surprises. Whether you are a landowner in Hyères or a farmer in the Var, what follows concerns you.

The facts: a story like those that happen every day

Mr X, owner of a plot in Brignoles, had entered into a promise of sale with a buyer, Mr Y, who wished to operate a gravel pit (gravel quarry) there. Yes, a gravel pit, not agriculture. The SAFER Gascogne Haut Languedoc exercised its right of pre-emption (right to buy the land first in place of the buyer) for environmental reasons: the site contained wetlands and protected species. Mr Y contested this pre-emption, arguing that the SAFER could not use it for an environmental objective without a link to agriculture.

The dispute began before the Tribunal de Grande Instance (TGI) of Auch, which ruled in favour of the SAFER. Mr Y appealed to the Court of Appeal of Agen, which upheld the judgment. He then appealed to the Court of Cassation. The Court of Cassation, in its judgment of 11 July 2024, dismissed the appeal, validating the pre-emption.

What to remember: the SAFER does not need to demonstrate that the land will be used for agricultural purposes to justify its environmental pre-emption right. The judges considered that environmental protection can be a sufficient reason, even if the initial project was not agricultural.

The reasoning of the court — dissected

The Court of Cassation relied on Article L. 143-2, 8° of the CRPM, in its version resulting from the law of 13 October 2014. This text provides that the SAFER's right of pre-emption may have as its object the protection of the environment, mainly through the implementation of adapted agricultural practices. The key word is "mainly", not "exclusively".

The Court therefore held that while the implementation of adapted agricultural practices constitutes the preferred means of achieving the environmental objective, it is not the only one. In short, the SAFER may pre-empt for environmental reasons even if no agricultural project is planned, or if the initial project is not agricultural. This is a broad interpretation that strengthens the powers of SAFERs.

Mr Y's arguments were as follows: the pre-emption should be annulled because the reasons invoked by the SAFER were "standard reasons" (generic) and not specific to the land. The Court rejected this argument, considering that the reasons were sufficiently precise. Furthermore, Mr Y argued that the 2014 law required a direct link with agriculture. The Court dismissed this reading, confirming that the environment can be an autonomous objective.

However, note: the Court reminds that the SAFER must justify its decision by precise and concrete reasons, linked to the characteristics of the land. This is not a blank cheque. undefined, I have encountered cases where the SAFER had pre-empted without a real environmental analysis, and the judge annulled the decision. Here, the SAFER had properly demonstrated the ecological interest of the site.

What this changes for you — concretely

For landlord owners: If you sell rural land, the SAFER can now pre-empt even if the buyer has no agricultural project, as long as the land has an environmental interest. Example: in Hyères, a wasteland sheltering a protected species can be pre-empted by the SAFER to preserve it, even if you wanted to sell it to a developer. You must therefore inquire about the ecological issues of your plot before signing a promise.

For buyers: Before buying rural land, check whether the SAFER might be interested. If the land has ecological value (wetland, habitat of protected species), your project risks being blocked. In this case, you can try to negotiate with the SAFER to waive its right, but this is not guaranteed.

For co-owners: Land held in co-ownership is also affected. If you sell a plot, the other co-owners must be informed. The SAFER can pre-empt the share of a co-owner. Remember to consult a lawyer to anticipate.

Concretely, if you are in this situation, you must: 1) identify whether your land is in an area of environmental concern (consult the Local Urban Plan (PLU) or the Regional Directorate for the Environment (DREAL)); 2) in case of pre-emption, contest within two months of notification, otherwise the decision becomes final; 3) prepare solid arguments: for example, demonstrate that your project does not impact the environment or that it is compatible with the SAFER's objectives.

Four tips to avoid this type of dispute

• Before any sale, carry out an environmental assessment: hire a consultancy to identify protected species or wetlands. This will allow you to anticipate a possible pre-emption and prepare your file.
• Contact your local SAFER for information: contact the SAFER in your department (e.g. SAFER Paca for the Var) to find out its priorities. It can tell you if your land is in an intervention zone.
• Draft the promise of sale carefully: include a condition precedent providing that if the SAFER pre-empts, the sale is cancelled without penalty. This protects you if the buyer withdraws.
• If pre-emption occurs, contest quickly: the time limit for appeal is two months. Gather all the elements: the pre-emption deed, the reasons invoked, and prove that the SAFER did not comply with the legal conditions (for example, lack of precise reasons).

Further reading: related case law and developments

Before this judgment, the Court of Cassation had already interpreted Article L. 143-2, 8° in a judgment of 13 March 2019 (No. 17-26.027). It had then held that the SAFER could pre-empt for environmental reasons, but insisting on the link with agriculture. The 2024 judgment goes further: it clearly dissociates the environmental objective from the agricultural means. This is a significant development.

However, note: the Paris Court of Appeal, in a judgment of 12 September 2023, annulled a pre-emption on the ground that the SAFER had not demonstrated the absence of an agricultural alternative. This divergence shows that the lower courts may interpret the text differently. The Court of Cassation's judgment puts an end to this uncertainty: the agricultural alternative is not an imperative condition.

For the future, we can expect SAFERs to use their right of pre-emption more frequently for environmental purposes. Owners will have to be extra vigilant, especially in sensitive areas such as the Var coastline or Natura 2000 sites.

Frequently asked questions

• Can the SAFER pre-empt my land if I want to sell it to a farmer? Yes, if the land has an environmental interest that justifies a different protection. For example, if the farmer plans drainage that would destroy a wetland, the SAFER may pre-empt to impose more respectful practices.
• Can I sell my land at a higher price than the SAFER's offer? No, the SAFER pre-empts at the initial sale price. If you believe the price is undervalued, you can contest before the expropriation judge.
• What are the time limits for contesting a SAFER pre-emption? You have two months from the notification of the pre-emption decision. After this period, you can no longer act.
• Can the SAFER pre-empt already urbanised land? No, the SAFER's right of pre-emption only applies to land with an agricultural, pastoral or forestry vocation, and to land located in agricultural zones of Local Urban Plans (PLUs). Land that is developable in an urban zone is not affected.
• What to do if the SAFER pre-empts without valid reason? You can apply to the judicial court to have the pre-emption annulled. You must demonstrate that the SAFER acted for a reason unrelated to the purpose of its right (for example, to put pressure on an owner).

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 →