SAFER: who must prove the prior declaration of retrocession?

Imagine: you are a farmer in Parentis-en-Born, and for years you have been renting a few plots to graze your cows. One day, the SAFER (Société d'Aménagement Foncier et d'Établissement Rural) tells you it has retroceded these lands to a neighbour. You wonder: is this retrocession legal? Was it subject to a prior declaration as required by the Rural Code? This is exactly the question the Court of Cassation had to decide in this 1998 case.

The question every owner or farmer asks: when the SAFER sells a property, must it check that the buyer has made his declaration? Or is it the buyer's responsibility? The answer is not trivial: it conditions the validity of the retrocession and, ultimately, the security of your farm.

This decision, although dated, remains a reference for all disputes related to SAFER retrocessions. It recalls a fundamental principle: it is for the beneficiary of the retrocession to prove that he has complied with his declaration obligations, not the SAFER. But beware: the Court of Appeal must still verify whether, in fact, the retrocession was subject to a prior declaration. And that is where the problem lies in this case.

The facts: a story like many others

Mr X is a farmer in Parentis-en-Born. He farms plots of land that he rents from various owners. In 1990, the SAFER Aquitaine (now Nouvelle-Aquitaine) acquired several plots as part of its mission to regulate the land market. It then sold them to another farmer, Mr Y, without informing Mr X. The latter, considering that this retrocession caused him harm (he lost the lease of these lands), sued the SAFER and Mr Y to have the sale annulled.

His main argument: the retrocession should have been subject to prior authorisation under the agricultural structures control regime (Article L. 331-4 of the Rural Code). However, according to him, this authorisation was not applied for, rendering the sale void. The SAFER, on the other hand, argued that Article L. 331-4.7° (formerly L. 188-2.III.7) subjects SAFER retrocessions to a simple declaration, not prior authorisation. And that it is for the beneficiary (Mr Y) to make this declaration, not for it.

The Court of Appeal of Pau (which has jurisdiction over Mont-de-Marsan) ruled in favour of the SAFER in 1996: it dismissed Mr X's claim, merely stating that the retrocession was subject to a simple declaration and that it was not for the SAFER to prove such declaration. Mr X appealed to the Court of Cassation. The Court of Cassation quashed the judgment: the Court of Appeal did not investigate whether, in this case, the retrocession was actually subject to a prior declaration by the benefiting farmer. In short, it misapplied the law by failing to check the applicable regime in the concrete case.

The reasoning of the court — dissected

In its judgment of 2 December 1998 (No. 97-11.249), the Court of Cassation quashed the Court of Appeal for lack of legal basis. What does that mean? The lower court (the Court of Appeal) correctly identified the applicable text: Article L. 188-2.III.7 of the Rural Code, now L. 331-4.7°, which subjects SAFER retrocessions to a simple declaration. But they stopped there. For the Court of Cassation, it is not enough to cite the correct article: one must concretely verify whether, in the facts of the case, the retrocession fell within the scope of that article. In other words, the Court of Appeal should have investigated whether Mr Y, the beneficiary, had indeed made the required prior declaration. By failing to do so, it deprived its decision of a legal basis.

The legal basis is twofold: Article L. 142-2 of the Rural Code (which defines the missions of the SAFER) and Article L. 331-4.7° (which lists operations subject to a simple declaration). The latter provides that retrocessions of property by the SAFER are subject to a prior declaration to the administrative authority, not to prior authorisation. The difference is important: the declaration is a formality that the beneficiary must complete, but it does not require prior approval from the administration.

In this case, the Court of Appeal held that the SAFER did not have to prove this declaration, as it was the beneficiary's responsibility. That is correct. But it failed to verify whether, in practice, the retrocession was indeed subject to a declaration (and not authorisation) under the criteria of Article L. 331-4.7°. For example, this article only applies if the retrocession meets certain conditions of area or type of farming. The Court of Appeal should have examined these conditions. By not doing so, it committed an error of law.

What this decision confirms: it is settled case law that the judge must verify the application of the text to the specific case. It is neither a reversal nor an evolution, but a reminder of the basic rules of legal reasoning.

What this changes for you — concretely

For farmers: if you benefit from a SAFER retrocession, you must imperatively make the prior declaration to the Direction départementale des territoires (DDT). Without this declaration, the retrocession could be challenged. Concrete example: in Saint-Paul-lès-Dax, a farmer who receives 5 hectares from the SAFER must declare this operation within 30 days of the sale, on pain of nullity.

For landowners: if you sell to the SAFER, you do not have to worry about this declaration, but you can check that the final buyer (the retrocessionary) has complied. If not, the sale could be annulled, and you might recover your property.

For property professionals: this decision reminds you to distinguish between declaration and authorisation. In the context of a SAFER transaction, the notary must ensure that the beneficiary has made his declaration before signing. If you are in this situation, you must ask the beneficiary to provide you with the receipt of declaration.

But what exactly changes? Before this decision, some Courts of Appeal might simply cite the text without verifying its application. Now, they must give reasons for their decision by analysing the facts. For you, this means that if you challenge a retrocession, you can demand that the judge verify whether the declaration was made and whether it was mandatory.

Four tips to avoid this type of dispute

• Check the applicable regime before any retrocession: Consult a lawyer lawyer to determine whether your operation falls under a simple declaration or prior authorisation. The criteria (area, type of land, etc.) are precise.
• Require proof of declaration: If you are the beneficiary, keep the receipt of declaration from the DDT carefully. If you are the seller, ask for a copy.
• Respect deadlines: The declaration must be made before the retrocession, or within a very short time after. Do not delay.
• Inform yourself about third-party rights: If you are a neighbouring farmer, you can oppose a retrocession if it has not been declared. Do not hesitate to consult a lawyer.

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

Further reading: related case law and developments

This 1998 decision is part of a line of judgments clarifying SAFER's obligations. For example, the Court of Cassation ruled in 2005 (No. 03-14.678) that the SAFER must inform existing tenants of its intention to retrocede. This duty to inform is distinct from the prior declaration. More recently, in 2018, the Court recalled that a retrocession to a neighbouring farmer can be annulled if it was not preceded by sufficient publicity. The trend of the courts is therefore to strengthen the rights of existing farmers and to require greater transparency from SAFER.

For the future, successive reforms of the Rural Code (notably the 2014 Future of Agriculture Act) have simplified certain procedures, but the distinction between declaration and authorisation remains. The takeaway: when in doubt, it is better to consult a professional.

Summary and next steps

FAQ:

1. What to do if I challenge a SAFER retrocession? Gather evidence (sale deed, correspondence) and consult a lawyer. You can seek annulment if the prior declaration was not made.
2. Can I sell directly to a farmer without going through the SAFER? Yes, but if the SAFER exercises its right of pre-emption, it can acquire the property in your place. In that case, it will retrocede it to a farmer of its choice.
3. What are the deadlines for challenging? Generally, the action for nullity is barred after 5 years from the retrocession. But it is better to act quickly.
4. What is the cost of a consultation? At Maître Zakine's firm, an initial 30-minute consultation costs €45. This can save you much higher procedural costs.

Are you in a similar situation? An initial 30-minute consultation with Maître Zakine (€45) can save you months of litigation — and often much more. Book an appointment →