Right of pre-emption (droit de préemption)

The right of pre-emption allows a public body to buy a property in place of the buyer the seller had found. The owner has decided to sell; he is not being expropriated. But he no longer chooses his buyer and, if the authority disputes the price, he may find himself before the expropriation judge, who will fix that price under the rules of compulsory purchase. The seller may then withdraw from the sale.

Pre-emption rights are numerous: the urban pre-emption right of municipalities in urban and future development zones, deferred development zones, sensitive natural areas of the departments, pre-emption by the SAFER (rural land agencies) over agricultural property, pre-emption by the tenant or the farm tenant. The mechanism for fixing the price through the judge is common to most public pre-emptions.

Where the rule comes from

Article L. 211-1 of the French Planning Code allows municipalities with a local planning plan to establish an urban pre-emption right over all or part of their urban and future development zones. Article L. 213-2 requires the seller to file a déclaration d’intention d’aliéner (DIA, declaration of intent to sell) stating the price and conditions of the sale; the holder of the right has two months to pre-empt, at the price offered or at another price. Article L. 213-4 provides that, failing agreement, the price is fixed by the court with jurisdiction in compulsory purchase, under the rules applicable to compulsory purchase, excluding any ancillary compensation. The same article sets the reference date at that of the most recent instrument publishing or amending the planning document.

In a valuation report

The report is prepared for the seller’s lawyer, sometimes for the authority. I value the property under the rules of compulsory purchase: actual use at the reference date, condition at the date of judgment, comparable sales, without any reinvestment allowance since the seller had chosen to sell. I look closely at the price declared in the DIA and at recent sale prices in the area, because the judge may fix a price below that of the DIA if the market warrants it, and the seller may then withdraw. The Cour de cassation held in 2025 that the dilapidated condition of the common parts of a co-owned building is part of the assessment of the price.

Example

An owner signs a preliminary contract to sell a tenanted building for €480,000. The municipality pre-empts at €400,000, citing a housing scheme. The seller refuses and the municipality applies to the expropriation judge. The seller’s valuer, from six sales of comparable buildings and a capitalisation of the rents at 6 %, values the property at €465,000. The government commissioner concludes at €420,000. The judge fixes the price at €450,000; the seller then has a period in which to accept or withdraw from the sale.

Not to be confused with

Compulsory purchase, which is imposed on an owner who did not want to sell and gives a right to ancillary compensation, and the tenant’s right of first refusal on the sale of a dwelling, which is not a public pre-emption.