Right of pre-emption of a deceased co-owner: can the State Property Service pre-empt in their place?

Imagine: you own a house in Kingersheim with your sister, each with a half share. Your sister dies and, with no known heir, her share falls into an vacant succession. A developer makes you an offer to buy the whole property, but you first want to buy your sister's share. Who can exercise this right of pre-emption? You, or the State?

This question, which may seem abstract, has very concrete consequences for any owner in indivision (co-ownership of a property between several people). The Court of Cassation ruled in 2007: the State Property Service, as curator of the vacant succession (manager of ownerless property), can exercise the right of pre-emption of the deceased co-owner. In other words, the State can substitute itself for you to buy the share being sold.

Let us analyse this decision together, step by step, so that you understand your rights and how to avoid a dispute.

The facts: a story that happens every day

In 1993, a property was held in indivision between several people. One of them, whom we shall call Mrs Y, died. Her succession was vacant: no heir came forward. In accordance with Article 813 of the Civil Code (which provides for the management of vacant successions by the State), the State Property Service was appointed curator.

At the same time, one of the co-owners (the other owners) signed a preliminary contract (promise to sell) with a third party to transfer his undivided rights. The notary prepared the deed. Informed of this, the State Property Service notified the notary of its intention to exercise the right of pre-emption over this sale, i.e. to substitute itself for the buyer and purchase the rights instead.

The problem? The right of pre-emption in indivision allows a co-owner to buy back the shares of another before they are sold to an outsider. But here, the co-owner is deceased. Can the State Property Service rely on this right? The vendors contest: according to them, the notification made to the notary is irregular, and the State Property Service has no standing to pre-empt.

The case goes up to the Court of Cassation. In 2007, the High Court ruled in favour of the State Property Service: as curator, it exercises all the rights of the deceased co-owner, including the right of pre-emption. The notification to the notary was held to be valid.

The reasoning of the court — explained

The Court of Cassation relies on two texts: Article 813 of the Civil Code (management of vacant successions) and Article 9 of the decree of 2 November 1971 (which specifies the missions of the State Property Service). It recalls that the curator's mission is to administer and manage the rights of the succession. Now, the right of pre-emption forms part of the deceased's patrimonial rights.

The reasoning is simple: if the deceased had been alive, he could have pre-empted. The curator substitutes for him. The notification to the notary is regular because it is the notary who prepares the sale – the State Property Service does not have to notify each co-owner individually.

The vendors argued that the right of pre-emption is personal and cannot be transferred. But the Court dismisses this argument: the curator does not inherit the right, he exercises it on behalf of the succession. This is a subtle but important nuance. The decision therefore confirms earlier case law favourable to the administration.

This solution is logical: it prevents property from being sold to third parties without the State, representing the succession, being able to intervene. But it may surprise co-owners who thought they could buy the share without competition.

What this changes for you — in practice

If you are an owner in indivision and a co-owner dies without an heir, be aware that the State Property Service can step in to pre-empt any sale of shares. For example, in Wittenheim, you own a building plot with your cousin. Your cousin dies, his share falls into a vacant succession. You want to buy his share before it is sold to a developer. But if you sign a promise to sell with a third party, the State Property Service can intervene and you will have to negotiate with it.

For buyers, be vigilant: if you buy undivided rights, check that no vacant succession is involved. A pre-emption by the State Property Service can annul your purchase.

For notaries, the lesson is clear: in the event of a vacant succession, systematically inform the State Property Service of any sale of undivided rights. A regular notification is key.

Four tips to avoid this type of dispute

• Check the succession situation: before buying or selling undivided rights, ask the notary to ensure that no co-owner has died without an heir. A consultation of the vacant succession register may be useful.
• Notify the State Property Service in good time: if you are a notary or vendor, send a written notification to the State Property Service as soon as the preliminary contract is signed. Use registered mail with acknowledgment of receipt to prove the date.
• Negotiate with the curator: if the State Property Service pre-empts, you are not powerless. You can discuss the price or propose a global purchase. The curator's mission is to value the succession, not to block transactions.
• Anticipate in your indivision deed: in a co-ownership agreement, include a clause granting a priority right of purchase between co-owners, which could take precedence over the State Property Service's right of pre-emption (subject to judicial validation).

Further reading: related case law and developments

This decision is part of a line of cases favourable to the administration. As early as 1999, the Court of Cassation had ruled that the State Property Service can exercise the right of pre-emption of a deceased co-owner (Civ. 1re, 16 March 1999, no. 96-22.650). The 2007 decision merely confirms this. However, a 2012 decision (Civ. 1re, 4 July 2012, no. 11-17.958) clarified that the State Property Service must notify its decision within the two-month legal period from the notification of the sale, failing which it is time-barred.

The trend is therefore towards protecting the interests of the vacant succession. In the future, the legislature may clarify the notification rules, particularly for sales between private individuals. In the meantime, caution remains key.

In practice: what you need to do

FAQ:

1. Q: Can the State Property Service pre-empt even if I am the only other co-owner?
A: Yes, because it represents the deceased co-owner. You have no automatic priority.

2. Q: What is the deadline for the State Property Service to exercise its right?
A: It must respond within two months following notification of the preliminary contract. After that period, it is time-barred.

3. Q: Can I challenge the price proposed by the State Property Service?
A: Yes, you can refer the matter to the expropriation judge to fix the price, as with any pre-emption.

4. Q: What if the State Property Service pre-empts without notifying me?
A: You can challenge the validity of the pre-emption before the judicial court. However, notification to the notary is deemed sufficient by the Court of Cassation.

5. Q: Does this rule also apply to successions in escheat (without known heir)?
A: Yes, exactly. The State Property Service acts on behalf of the State which takes over the succession.

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