Right of pre-emption: what to do if the seller fails to comply with their obligation?

Imagine: you have been a tenant of a farm in Saint-Berthevin for twenty years. The owner tells you they are selling. You have a right of pre-emption (priority to buy). But they sell to a third party without telling you. You discover the sale too late. Can you request the cancellation of the sale? This is the question raised by the judgment of 29 May 1979 of the Court of Cassation. And the answer may surprise you.

As an owner or tenant, you may wonder: what recourse do I have when my right of pre-emption is violated? The decision of the Court of Cassation of 29 May 1979 (No. 78-11.014) provides a clear answer: if you have not exercised your right of pre-emption, you cannot request the nullity of the sale, unless you prove fraud (dishonest manoeuvre) by the seller or the buyer.

But beware: this rule is not absolute. If you demonstrate that the seller and the buyer organised a fraud to prevent you from buying, then you can take action. Let's decipher this decision and its concrete consequences.

The facts: a story that happens every day

Mr X is the owner of a farm in Saint-Berthevin. He sells it to Mr Y, a neighbouring farmer. But Mr Z, Mr X's tenant, benefits from a right of pre-emption (priority to buy) under the agricultural tenancy statute (law of 30 June 1975). Mr X does not notify the sale to Mr Z, who learns of it by chance. Furious, Mr Z sues Mr X and Mr Y to request the nullity of the sale, arguing that his right was violated.

In parallel, Mr X and Mr Y had signed an 18-year lease on the land, which could conceal an intention to circumvent the right of pre-emption. But Mr Z never expressed his intention to buy before the sale. The Rennes Court of Appeal, in a judgment of 8 February 1978, rejected his claim. Mr Z appealed to the Court of Cassation.

The Court of Cassation was asked: can a beneficiary of a right of pre-emption who has not exercised it obtain the annulment of the sale for non-performance of the seller's obligations?

The reasoning of the court — dissected

The Court of Cassation dismisses the appeal. It recalls a fundamental principle: the right of pre-emption is a faculty (a potestative right) that the beneficiary must exercise to be protected. If they do not, they cannot later complain that the sale took place without them. In other words, if you do not seize the opportunity to buy, you cannot request the annulment of the sale.

But there is an exception: fraud (Article 1240 of the Civil Code, which requires reparation for damage caused by fault). If the seller and buyer organised a manoeuvre to prevent you from exercising your right (for example, by not notifying you of the sale, setting an excessive price, or signing a fictitious lease to conceal the sale), then you can request nullity. Fraud corrupts everything (fraus omnia corrumpit).

In this case, Mr Z did not prove that the sale and the lease were fraudulent. He also did not exercise his right of pre-emption. Therefore, no nullity. The decision confirms previous case law: the Court of Cassation has been consistent since the 1970s. This is neither an evolution nor a reversal.

The judges examined Mr Z's arguments: he claimed that the 18-year lease was a fraud. But the Court of Appeal found that the lease was a normal clause of the sale, without any intention to harm. The Court of Cassation validates this analysis.

What this changes for you — concretely

For a landlord owner: if you sell without respecting the tenant's right of pre-emption, you risk damages (Article 1240 of the Civil Code) if the tenant proves harm. But not annulment of the sale, unless there is fraud. Example: in Château-Gontier, an owner sells his land to a developer without informing his tenant farmer. The farmer cannot annul the sale, but can obtain €10,000 in damages for loss of opportunity.

For a tenant beneficiary of a right of pre-emption: you must exercise your right as soon as you become aware of the sale. If you do not, you lose any recourse for nullity. But if you suspect fraud (sale at an undervalued price, failure to respect notification deadlines), gather evidence and act quickly (prescription period: 5 years from discovery).

For a buyer: you can be reassured if you bought in good faith (without knowledge of the tenant's right of pre-emption). But if you participated in fraud, you risk annulment of the sale and damages.

If you are in this situation, you should: 1) Check whether you exercised your right of pre-emption within the deadlines. 2) If not, look for evidence of fraud (correspondence, abnormal price, contractual arrangements). 3) Consult a lawyer promptly to assess your chances.

Four tips to avoid this type of dispute

• Always notify the sale by registered letter with acknowledgment of receipt to the beneficiary of the right of pre-emption, including the price and conditions. Keep a copy. This proves your good faith.
• Exercise your right of pre-emption within the legal time limit (often 1 to 2 months depending on the type of property). If you hesitate, request an extension or an expert appraisal.
• If in doubt about fraud, have the facts recorded by a bailiff (for example, if the seller conceals the sale from you). A report can serve as evidence in court.
• Consult a lawyer before signing any preliminary contract if you are an owner and your property is rented. A lawyer will check for any right of pre-emption and advise you on the procedure to follow.

Further reading: related case law and developments

This decision is part of a consistent line of authority. For example, in a judgment of 12 June 1979 (No. 78-10.456), the Court of Cassation held that a beneficiary of a right of pre-emption who has not exercised their right cannot request the nullity of the sale, even if the seller did not comply with the notification formalities. The only exception is fraud.

Since the 1980s, the courts have become increasingly demanding regarding proof of fraud. It is not enough to show an irregularity: an intention to harm must be demonstrated. This trend protects the legal certainty of property transactions. In the future, it is likely that this rule will remain stable, as it balances the beneficiary's rights and the freedom to sell.

In practice: what to do

FAQ:

Can I annul a sale if my right of pre-emption was ignored? Only if you prove fraud. Otherwise, you can only claim damages.

What are the time limits for taking action? 5 years from the discovery of the sale. But act quickly to avoid prescription.

What if I am a buyer and the seller did not respect the right of pre-emption? You are protected if you are in good faith. But if you were aware of the right, you could be ordered to pay damages.

How to prove fraud? Through documents (emails, letters), witness statements, a bailiff's report, or a manifestly undervalued price.

What is the cost of legal action? Expect €2,000 to €5,000 in lawyer's fees, plus procedural costs. But a preliminary consultation (€45) can save you unnecessary expenses.

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 →