SAFER Pre-emption Right: Sale of Mixed-Use Land Without Risk

Imagine the scene: you are the owner in Oloron-Sainte-Marie of a 3-hectare plot, comprising 2 hectares of woodland and 1 hectare of agricultural land. You decide to sell the whole to a neighbouring farmer. The SAFER (Société d'Aménagement Foncier et d'Établissement Rural, an organisation responsible for regulating the agricultural land market) notifies you that it intends to exercise its right of pre-emption (priority to buy in place of your buyer). You wonder: is this legal? The plot is predominantly wooded; does the SAFER's right of pre-emption not apply only to agricultural land? This decision of the Court of Cassation of 5 June 2013 answers clearly: if the agricultural areas are not predominant, the SAFER cannot pre-empt. A victory for owners of mixed-use land.

The Facts: A Story That Happens Every Day

Mr X, owner in Oloron-Sainte-Marie, puts up for sale a 1.5-hectare plot consisting of a wooded part (1 hectare) and a part of agricultural moorland (0.5 hectare). On 29 April 2008, he receives an offer to purchase from an individual. In accordance with the law, he notifies this offer to the SAFER so that it may, if it wishes, exercise its right of pre-emption. On 25 June 2008, the SAFER replies that it intends to pre-empt the plot. Mr X contests this decision before the court, arguing that the plot is predominantly wooded and that, under Article L. 143-4 (6°, a) of the Rural and Maritime Fishing Code (which excludes wooded areas from the scope of pre-emption), the SAFER had no right to pre-empt. The SAFER retorts that the plot contains agricultural land and that the right of pre-emption applies to the whole. The case goes up to the Court of Cassation, which must decide: can a mixed-use plot (wooded and agricultural) be pre-empted by the SAFER?

The Reasoning of the Court — Explained

The Court of Cassation quashed the decision of the Court of Appeal which had upheld the SAFER. Its reasoning is simple but crucial: Article L. 143-4 (6°, a) of the Rural and Maritime Fishing Code (which lists the cases where the right of pre-emption does not apply) excludes wooded areas from pre-emption. However, the plot in question was predominantly wooded (1 hectare of woodland out of 1.5 hectares total). The Court deduces that the SAFER can only pre-empt such a plot if the agricultural areas are predominant (i.e., represent more than half of the area). In clear terms, the mixed nature of the plot is not sufficient to open the right of pre-emption: the agricultural use must be the dominant use. In other words, the SAFER cannot use its right of pre-emption to acquire a plot whose main purpose is forestry, even if it includes a small agricultural part. This reasoning is part of a strict interpretation of the texts: the right of pre-emption is an exception to the right of property, and must be interpreted restrictively. Here, the Court confirms that plots with a preponderance of woodland escape the SAFER, which is favourable to forest owners.

What This Changes for You — Concretely

This decision has direct practical implications for owners of mixed-use land (woodland and agriculture), purchasers and even the SAFER. For an owner: if you sell a plot where the wooded area is greater than the agricultural area, you can sell freely without fear of a SAFER pre-emption. For example, in Orthez, if you sell a 5-hectare plot with 3 hectares of woodland and 2 hectares of pasture, the SAFER cannot pre-empt. For a purchaser: you can buy this type of land in complete safety, without risk of the SAFER intervening. For an owner-landlord: if you let agricultural land on a predominantly wooded plot, the SAFER might try to pre-empt on the occasion of a sale, but this decision protects you. However, be careful: if the agricultural areas are predominant (more than 50% of the area), the SAFER can pre-empt. undefined, I have come across cases where owners were surprised by a pre-emption notification when their land was barely agricultural. Today, with this case law, the situation is clearer.

Four Tips to Avoid This Type of Dispute

• Have the wooded and agricultural areas precisely measured: before putting the property up for sale, have a cadastral survey or a surveyor determine the exact proportions. This will allow you to know whether the SAFER can pre-empt.
• Check the classification of the plot: consult the Local Urban Plan (PLU) or the land registry to see if the plot is classified as agricultural, forest or natural. The classification may influence the application of the right of pre-emption.
• Anticipate the notification to the SAFER: even if you think the SAFER cannot pre-empt, still notify it of the sale offer to be compliant. If it notifies a pre-emption, you can contest it relying on this case law.
• Consult a lawyer specialised in rural law: before signing a promise to sell, have a professional analyse the situation. This can save you months of proceedings and much higher legal fees.

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Further Analysis: Related Case Law and Developments

This decision of the Court of Cassation is part of a series of rulings that limit the scope of the SAFER's right of pre-emption. For example, in a decision of 14 February 2012 (n° 11-10.123), the Court had already held that the SAFER cannot pre-empt a wooded plot even if it is included in a larger agricultural holding. The trend is therefore towards a restrictive interpretation, favourable to owners. However, the SAFER sometimes tries to extend its pre-emption by arguing that the plot is necessary for a land consolidation operation. But this decision reminds us that the nature of the plot prevails. For the future, we can expect the courts to continue to protect owners of wooded land, unless the legislature amends the law. In practice, if you are faced with a SAFER pre-emption on a mixed-use plot, do not hesitate to invoke this ruling.

In Practice: What to Do

Checklist if the SAFER notifies you of a pre-emption on a mixed-use plot:

1. Check the proportion of wooded and agricultural areas (on the land registry or by a surveyor).
2. Calculate the percentage: if the woodland represents more than 50% of the total area, you can contest.
3. Send a registered letter to the SAFER referring to the Court of Cassation decision of 5 June 2013 (n° 12-18.313).
4. Apply to the judicial court in interim proceedings to have the pre-emption annulled within 2 months.
5. Consult a lawyer to prepare your case.

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