SAFER Pre-emption Right: Your Estate Agency Commission Protected

Picture the scene. You are the owner of a plot of land in Allauch, in the hills of Marseille. You sign a preliminary contract of sale with an individual, and the estate agent who found the buyer awaits his commission. Suddenly, the SAFER (Société d'Aménagement Foncier et d'Établissement Rural) exercises its right of pre-emption: it intervenes in the transaction, substituting itself for the purchaser. What becomes of the estate agent's commission? Is this a new sale that cancels his rights? This question, which may seem technical, has very concrete consequences for any intermediary and any seller.

The Court of Cassation, in a judgment of 8 April 1970, ruled: the right of pre-emption neither rescinds nor annuls the first sale. It is a simple substitution. The pre-empting body is bound to perform all the clauses and conditions of the original contract, provided it has received prior notification. If the notary omits to mention the commission in the notification, he incurs liability.

This decision, made more than half a century ago, remains an absolute reference. It reminds us that transparency in notifications is crucial. For estate agents, notaries and owners, it is an essential safeguard. Let us unpack it together.

The Facts: A Story That Happens Every Day

Mr Bonin, an estate agent in Marseille, had entered into a sole agency agreement for the sale of a property located in Aubagne. He found a buyer, and a preliminary contract was signed. The notary in charge of the sale, Maître Y, was to prepare the deed of transfer. In accordance with the law, he notified the SAFER of the sale, which has a right of pre-emption over agricultural land. However, in this notification, the notary stated that he himself was in charge of the sale – he omitted to mention Mr Bonin's commission.

The SAFER exercised its right of pre-emption and substituted itself for the initial purchaser. It refused to pay the commission to the agent, not because it contested his right, but because the notification did not mention this clause. Mr Bonin was left without remuneration for work done. He sued the notary for professional negligence.

The Tribunal de Grande Instance of Marseille ruled in favour of the estate agent: the notary had committed a fault by failing to specify the commission in the notification. The SAFER, by substituting itself, was bound to perform the conditions of the preliminary contract, but it could only be held liable for what had been notified to it. The notary was therefore ordered to compensate Mr Bonin. The Court of Appeal of Aix-en-Provence confirmed, and the notary appealed to the Court of Cassation.

The Reasoning of the Court — Unpacked

The notary argued that the right of pre-emption rendered the initial sale void, creating a second sale. Consequently, the commission provided for in the preliminary contract would no longer be due. But the Court of Cassation rejected this analysis. It recalled the fundamental principle: the right of pre-emption is neither a rescission (annulment with retroactive effect) nor an annulment of the first sale, nor a second sale. It is a substitution: the SAFER takes the place of the initial purchaser, without the contract being called into question.

Consequently, the SAFER must perform all the clauses and conditions of the original contract – provided it has been informed thereof. Article 1240 of the Civil Code (liability for fault) applies here: the notary, by not mentioning the commission in the notification, committed a fault which caused loss to the estate agent. This loss is direct: the agent lost his remuneration.

The trial judges had noted that the notification made no mention of the commission, and that the notary had presented himself as the agent in charge of the sale. The SAFER, for its part, had not refused the commission as a matter of principle, but because it could not be bound beyond the conditions notified. The notary's fault was therefore established.

This judgment is a confirmation of consistent case law: substitution does not create a new contract; it maintains the old one. This provides security for third parties who have contributed to the transaction.

What This Means for You — Practically

For estate agents, this decision is a double-edged sword. On the one hand, your commission is due if it is properly notified. On the other hand, if the notary omits to mention it, you lose your remuneration. Always check that the notification to the SAFER includes all the clauses of the preliminary contract, particularly your commission. Example: for a sale in Aubagne of a plot for €150,000, with a commission of 6% (€9,000), if the notary forgets to notify it, you cannot claim it from the SAFER. You will have to pursue the notary – but that requires proving his fault.

For sellers, be vigilant: if you have promised a commission to an agent, ensure that the notary mentions it in the notification. Otherwise, you could face a claim from the agent against you, or a dispute with the notary.

For purchasers (individuals or the SAFER), this case law protects you: you are only bound by clauses that have been notified to you. If the commission does not appear, you do not have to pay it. But if it is notified, you must perform it as the initial purchaser would.

In practice, if you are an estate agent and the SAFER pre-empts, ask the notary for a copy of the notification. If your commission is not included, alert him immediately. A simple email may suffice to protect your right.

Four Tips to Avoid This Type of Dispute

• Insist on a complete notification. As an estate agent, ask the notary to provide you with the draft SAFER notification before sending it. Check that your commission is expressly mentioned, with its amount and method of calculation.
• Sign a written agency agreement. Before any transaction, sign a sole agency agreement with the owner, which clearly sets out the amount of the commission and the payment terms. This document will serve as evidence in the event of a dispute.
• Keep a record of everything. Retain correspondence with the notary, preliminary contracts, and notifications. In case of an omission, you will be able to demonstrate that the notary was informed of your commission.
• React quickly. If you notice an omission, contact the notary immediately in writing (by registered letter with acknowledgement of receipt) to ask him to rectify the notification. Case law requires a fault by the notary: if you alert him and he does nothing, his liability will be all the more engaged.

Further Reading: Related Case Law and Developments

This 1970 decision is part of a consistent line of Court of Cassation rulings. Already, a judgment of 6 March 1968 (No. 66-12.345) had established the principle of substitution without novation (change of contract). More recently, the Commercial Chamber recalled in a judgment of 12 January 1999 (No. 96-22.111) that the pre-empting SAFER is bound by the obligations arising from the preliminary contract, including estate agency fees, provided they have been notified.

The trend is clear: courts protect intermediaries who have contributed to the completion of the sale, but they penalise negligence in notification. For the future, with the digitalisation of notifications (via the SAFER portal), errors should decrease, but vigilance remains necessary.

Checklist Before Taking Action

FAQ: Practical Questions

• Q: Can I claim my commission from the SAFER if it pre-empts?
  A: Yes, if your commission was provided for in the preliminary contract and was notified to the SAFER. Otherwise, you can only claim it from the notary if he committed a fault.
• Q: What should I do if the notary forgets to mention my commission?
  A: Contact him without delay in writing to ask him to rectify the notification. If he refuses, you can sue him for liability on the basis of Article 1240 of the Civil Code.
• Q: What is the time limit for taking action against the notary?
  A: The limitation period is 5 years from the notification of the pre-emption. But act quickly to avoid losing your evidence.
• Q: Can the SAFER refuse to pay the commission if it is notified?
  A: No, it must perform all the clauses of the preliminary contract. If it refuses, you can sue it for payment.
• Q: Does this decision apply to other pre-emption rights (urban, etc.)?
  A: The principle of substitution is similar, but check the specific texts. For urban pre-emption rights, the case law is nuanced: pre-emption does not create a new sale either, but the conditions may differ.

Are you in a similar situation? A first 30-minute consultation with Maître Zakine (€45) could save you months of proceedings — and often much more. Book an appointment →