SAFER Pre-emption: Non-Agricultural Land Now Protected

You are the owner in Gemenos, in the Bouches-du-Rhône, of a plot that you lease as a leisure area. You decide to sell it. The buyer is found, the preliminary contract is signed. But then the SAFER (Land Development and Rural Establishment Company) notifies you of its right of pre-emption (the right to buy the property in place of your buyer). You are flabbergasted: your land is in no way agricultural; it serves as a car park for construction vehicles. Is this legal?

This is precisely the question put to the French Supreme Court in its judgment of 28 September 2011 (No. 10-14.004). And the answer is clear: a plot which, before its sale, was used for an activity unrelated to an agricultural purpose is not subject to the SAFER's right of pre-emption. In other words, if your land is used for a non-agricultural activity (leisure, storage, parking, etc.), the SAFER cannot intervene.

But what exactly does this change for you, as owner or buyer? This decision secures transactions involving land which, although located in a rural area, has a non-agricultural vocation. It reminds us that the SAFER's right of pre-emption is not automatic: the land must genuinely be agricultural. This is an essential point to avoid months of legal proceedings.

The facts: a story like many others

Mr X, owner in Gemenos, owns a plot that he leases to a public works company. The company uses it as a depot for materials and parking for machinery. No agricultural activity, therefore. In 2005, Mr X decides to sell this land to a private individual, Mr Y. The preliminary contract is signed, but the SAFER, considering that the plot is agricultural, exercises its right of pre-emption. It substitutes itself for Mr Y and buys the land.

Mr Y contests this decision before the courts. He argues that the plot is not agricultural: it is used for an industrial activity. The Court of Appeal rules in his favour, annulling the pre-emption. The SAFER appeals to the Supreme Court. But the Supreme Court dismisses its appeal: the trial judges (Court of Appeal) have sovereignly assessed that the plot was not agricultural before its disposal (sale).

The twist? The Supreme Court specifies that it is the situation prior to the sale that matters, not the future use intended by the buyer. In clear terms, even if Mr Y intended to make a garden there (potentially an agricultural activity), this changes nothing: what matters is the actual use at the time of the sale.

The reasoning of the court — broken down

The SAFER's right of pre-emption is provided for by the Rural and Maritime Fishing Code, in particular Article L. 143-1. This text allows the SAFER to buy agricultural or agricultural-vocation land as a priority in order to redistribute it to farmers. But the land must actually be agricultural. The central question in this case was therefore: how to determine whether land is agricultural?

The SAFER argued that the plot, although used for storage, was located in a rural area and that the buyer planned to make a garden there. But the Supreme Court rejected this argument. It recalled that only properties which, before their disposal, are used for an agricultural activity or have a genuine agricultural vocation can be pre-empted. In this case, the storage of machinery is in no way agricultural. In other words, the SAFER cannot pre-empt land on the pretext that it might become agricultural one day.

This reasoning confirms previous case law: it is the actual use that prevails. The trial judges have sovereign power to assess this issue. They examine concrete elements: nature of the soil, activities carried out, current leases, etc. Here, the Court of Appeal noted that the land was used as a depot and parking, with no connection to agriculture. Its decision is therefore flawless.

What few people know is that this interpretation also protects owners: if you use your land for a non-agricultural activity, you can sell it freely, without fear of an untimely pre-emption. However, caution: if the land is classified as agricultural zone in the Local Urban Plan (PLU), the SAFER could argue an agricultural vocation. But actual use remains a key element.

What this changes for you — concretely

For owners: you can sell non-agricultural land without having to clear the SAFER's right of pre-emption. If you receive a pre-emption notice, you have two months to contest it. Concrete example: in Marseille, an owner of a 2,000 m² plot used as a paying car park can sell it to a developer without the SAFER intervening. Saving time and money: no procedure, no delay.

For buyers: you can buy non-agricultural land in complete safety. Check the prior use of the property. If the deed of sale mentions that the land is agricultural, when in fact it is not, you can demand a warranty. undefined, I have come across cases where buyers had to wait a year for the SAFER to lift its option. With this case law, you can require the SAFER to prove the agricultural nature.

For real estate professionals: mention in the preliminary contracts that the property is not agricultural, with evidence (photos, leases, attestations). This removes any risk of pre-emption. Example: an agent in Gemenos sells a 5,000 m² plot leased to a transport company. He attaches the commercial lease to the preliminary contract. The SAFER will not be able to pre-empt.

In the event of a dispute, you must act quickly. The deadline for challenging a pre-emption decision is two months from notification. If you exceed this deadline, the pre-emption becomes final. Advice: upon receipt of the notification, consult a lawyer lawyer.

Four tips to avoid this type of dispute

• Have the actual use of the land ascertained before the sale. Take photos, have a bailiff draw up an inventory, gather the leases (commercial, storage, etc.). This evidence is decisive in demonstrating the absence of agricultural character.
• Check the PLU of your municipality. If the land is classified as agricultural zone, the SAFER will be more inclined to pre-empt. In that case, it is better to anticipate by applying for a planning certificate or by initiating discussions with the SAFER before the sale.
• Draft the preliminary contract carefully. Expressly state that the property is not agricultural and that the buyer does not intend to use it for agricultural purposes. This deters the SAFER from intervening.
• In case of doubt, request a ruling from the SAFER. You can submit the proposed sale to it so that it can rule on the possible exercise of its right of pre-emption. Its response will allow you to act with full knowledge of the facts.

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

Further reading: related case law and developments

This judgment is part of a consistent line: the Supreme Court has always ensured that the SAFER's right of pre-emption is reserved for genuinely agricultural properties. For example, in a judgment of 3 December 2009 (No. 08-17.095), it held that a bare plot located in a building zone but not used for agriculture was not pre-emptable. Similarly, in a decision of 12 July 2018 (No. 17-14.003), it specified that the SAFER cannot pre-empt a property if agricultural activity has ceased for several years.

The trend is therefore towards protecting owners and buyers. The courts scrutinise actual use. In the future, we can expect the SAFER to be more cautious before exercising its right over land used for non-agricultural purposes. This means that if you own a leisure plot, a car park or a depot, you are safe.

However, caution: if the land is partly agricultural and partly non-agricultural, the situation becomes complicated. Case law tends to consider that the SAFER can pre-empt if the agricultural part is predominant. In that case, a prior division of the plot may be considered.

Frequently asked questions

1. What is the SAFER's right of pre-emption? It is the right for the SAFER to buy agricultural land put up for sale, in place of the initial buyer, in order to redistribute it to farmers. It is provided for by the Rural Code.
2. Can I sell my land freely if I carry out a non-agricultural activity on it? Yes, according to this judgment, the SAFER cannot pre-empt land that is not agricultural. Nevertheless, check the PLU.
3. What should I do if the SAFER pre-empts my non-agricultural land? You have two months to contest the decision before the judicial court. Gather evidence of non-agricultural use.
4. What are the deadlines for action? From the notification of pre-emption, you have two months to bring the matter before the court. After this period, the pre-emption becomes final.
5. How much does a challenge cost? Lawyer's fees vary, but a 30-minute consultation at €45 can already enlighten you. In case of proceedings, expect several thousand euros, but a favourable outcome will save you a much greater loss.

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 →