SAFER Pre-emption: Can a Judge Order a Sale?

You are an owner in Mérignac, and you have just received a letter from the SAFER (Société d'Aménagement Foncier et d'Établissement Rural) informing you that it refuses to exercise its right of pre-emption over your agricultural land. Or conversely, you are a buyer of a plot in Bordeaux and the SAFER has decided to pre-empt in your place. In both cases, a question nags at you: can I challenge this decision? And above all, can a judge force the SAFER to pre-empt or to renounce?

This decision of the Court of Cassation of 2 June 1999 (No. 97-19.807) provides a clear answer: the judicial judge can review the legality of the SAFER's decision, but cannot compel it to exercise its right of pre-emption. In other words, you can challenge an irregular decision, but you cannot require the SAFER to buy your property if it does not wish to.

In short, this case law sets an important limit on the power of the courts. For owners and buyers, this means being vigilant about the pre-emption procedure and the SAFER's reasons. Analysis.

The Facts: An Everyday Story

In this case, the Société Bretonne d'Aménagement Foncier et d'Établissement Rural (SBAFER) had been informed of the sale of a plot of land by the Z... consortium to Mr. Y. As permitted by law, the SBAFER had a right of pre-emption (the right to buy agricultural property put up for sale as a priority, for land management purposes). But the SBAFER refused to exercise this right, allowing the sale to proceed in favour of Mr. Y.

Dissatisfied, Mr. Y turned to the courts. He considered that the SBAFER should have pre-empted and that this refusal was irregular. He therefore brought the matter before the tribunal de grande instance to request that the SBAFER be compelled to exercise its right of pre-emption.

The lower courts ruled in favour of Mr. Y, ordering the SBAFER to pre-empt. But the SBAFER appealed to the Court of Cassation. The Court of Cassation quashed the appeal judgment, recalling that while the judicial courts can assess the legality of pre-emption decisions, they do not have the power to compel SAFERs to exercise their right. In other words, the judge cannot substitute their decision for that of the SAFER.

The Reasoning of the Court — Explained

The Court of Cassation relied on the texts governing SAFERs, notably the Code rural et de la pêche maritime. These texts confer on SAFERs a discretionary power to decide whether or not to exercise their right of pre-emption. The refusal decision is not an individual decision creating rights (within the meaning of the Law of 11 July 1979) but an act falling within their own competence.

The reasoning is as follows: the judicial judge has jurisdiction to verify that the SAFER has complied with the rules of form and substance (for example, did it properly state reasons for its refusal? Did it respect the time limits?). But it cannot go further by imposing a pre-emption. In other words, the SAFER remains free in its choice, subject to a legality review.

However, note: if the refusal decision is tainted by an irregularity (for example, a lack of reasons), the judge can annul it. But annulment does not entail an obligation to pre-empt; it only opens a right to damages (compensation) for the harm suffered.

undefined, I have encountered cases where owners challenged a refusal of pre-emption hoping that the judge would order the SAFER to buy. This decision reminds them that this is not possible: they must pursue a liability action (Article 1240 of the Civil Code) to obtain compensation for the harm caused by an irregular decision.

What few people know is that this solution has been constant since that date: the Court of Cassation has repeatedly confirmed that the judge cannot substitute their decision for that of the SAFER. It is a matter of separation of powers between the administration (SAFERs are semi-public bodies) and the judicial judge.

What This Means for You — Practically

For the selling owner: if the SAFER refuses to pre-empt, you can sell freely to your buyer. But if you believe this refusal is illegal (for example, the SAFER did not respect the time limits or did not give reasons for its decision), you can claim damages. Concrete example: an owner in Bordeaux receives a purchase offer of €200,000 for his land. The SAFER refuses to pre-empt without valid reason. The owner can then bring a court action to obtain compensation for the harm (for example, if the sale fails due to a procedural defect).

For the evicted buyer: if the SAFER pre-empts your purchase, you can challenge the legality of the pre-emption. But you cannot obtain annulment of the sale in favour of the SAFER; you can only obtain damages if the pre-emption was irregular. For example, you had signed a promise of sale for €150,000, the SAFER pre-empts for €150,000, but you discover that the SAFER did not respect the two-month deadline for notifying its decision. You can then claim compensation for the harm (notary fees, loss of chance).

For the tenant or agricultural operator: if you are a sitting tenant (farmer), you have a right of pre-emption that takes priority over that of the SAFER. If the SAFER pre-empts in your place, you can challenge this decision before the tribunal paritaire des baux ruraux. But again, the judge cannot order the SAFER to give you priority; it can only annul the irregular decision and compensate you.

In short, this decision requires you to act quickly and to verify the legality of the procedure. The time limits for appeal are often two months from the notification of the SAFER's decision.

Four Tips to Avoid This Type of Dispute

• Check the reasons for the SAFER's decision: any decision to pre-empt or refuse must be reasoned (state the precise reasons: development project, installation of a young farmer, etc.). If the reasons are absent or insufficient, the decision is irregular. You can then challenge it.
• Respect notification deadlines: the SAFER has a period of two months from receipt of the declaration of intention to alienate (DIA) to notify its decision. After this period, it is deemed to have waived its right of pre-emption. Keep the acknowledgement of receipt of your DIA carefully.
• Consult a lawyer specialising in rural law before any sale: a professional can help you prepare your DIA, anticipate a possible pre-emption, and challenge an irregular decision in time. In Bordeaux, Maître Zakine can assist you.
• In case of pre-emption, immediately request access to the file: the SAFER must justify its decision. If it refuses to disclose the documents, this may constitute a procedural defect. Do not hesitate to demand access to the file by registered letter.

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

Further Reading: Related Case Law and Developments

This 1999 decision is part of a consistent line. Previously, the Court of Cassation had already ruled in a judgment of 10 July 1996 (No. 94-16.722) that the judicial judge cannot order a SAFER to pre-empt. Since then, case law has remained stable: the judge's review is limited to legality, not opportunity.

A more recent decision (Court of Cassation, 3rd Civil Chamber, 12 September 2019, No. 18-18.086) clarified that the judge can annul a pre-emption if the SAFER did not comply with land publicity rules. But still no injunction to pre-empt.

On the other hand, the administrative judge (Conseil d'État) may have jurisdiction to review decisions of SAFERs when they act as public bodies. But in matters of pre-emption, it is the judicial judge who has jurisdiction, except in exceptional cases.

What to remember: the trend is protective of SAFERs. The legislature has given them broad discretionary power, and the judges respect this margin of discretion. For litigants, this means being flawless on form and evidence.

Key Points to Remember

FAQ:

Can I force the SAFER to pre-empt my land if it refuses? No, the judge cannot compel it. You can only challenge the legality of its refusal and claim damages.

What if the SAFER pre-empts my purchase without valid reason? You can refer the matter to the judicial court within two months of notification to seek annulment of the pre-emption and damages.

What are the time limits for challenging a SAFER decision? The appeal must be brought within two months of notification of the decision. After this period, the decision becomes final.

Can the SAFER pre-empt at a price lower than the sale price? Yes, but it must justify it on grounds of public interest (for example, to avoid speculation). If the proposed price is manifestly undervalued, you can challenge it.

What is the role of the notary in the pre-emption procedure? The notary must send the declaration of intention to alienate to the SAFER. He is obliged to inform the parties of the pre-emption rights. In case of error, his liability may be engaged.

Concrete Cases: How This Case Law Applies to Your Situation

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