You Might Be Thinking…

“Isn’t pre-emption right automatic?”
It’s not. The law grants it only in limited cases (e.g., co-owners of land), otherwise it must be expressly agreed in the contract.

Clients Often Ask Me…

• How exactly does the pre-emption right work in a purchase agreement?

• Must the offer be in writing?

• What are the time limits for exercising the right?

• Can the pre-emption right be registered in the Land Register?

• When is it worthwhile to agree on a pre-emption right voluntarily?

Pre-emption Right in a Nutshell

• Essence (§ 2140 et seq. Civil Code): the obligation to offer the property to the pre-emptor if the seller intends to sell it to a third party.

• Scope: may also be agreed for other forms of transfer (e.g., donation).

• Form: must be in writing; for real estate, entry in the Land Register ensures effectiveness against third parties.

• Deadlines: by law – 8 days for movables, 3 months for immovables, unless agreed otherwise.

• Inheritance and transfer: binds heirs if the contract explicitly provides so.

Risks and Common Mistakes

• Invalid wording – a vague pre-emption right without clear subject and conditions is unenforceable.

• Missing registration – with real estate, it won’t protect against third parties without entry in the Land Register.

• Short deadlines – the pre-emptor failed to respond in time, and the right expired.

• Co-owner disputes – unclear rules on who and how can exercise the right.

How to Arrange a Pre-emption Right Step by Step

1. Include it in the contract in writing.

2. Specify the subject and conditions – how and when the offer must be made.

3. Agree on the time limit – standard is 8 days (movables) / 3 months (real estate).

4. Register in the Land Register – otherwise ineffective against third parties.

5. Set rules for heirs or co-owners.

Lawyer’s Recommendation

• Agree on pre-emption rights especially where you want to avoid outsiders entering – e.g., into a family house or business.

• As a pre-emptor, insist on registration in the Land Register, otherwise third parties can bypass you.

• As a seller, watch the deadlines – otherwise, you risk a lawsuit for invalidity of the transfer.

Checklist for Proper Pre-emption Right

✔ written contract
✔ clearly defined subject and conditions
✔ agreed deadline for exercise
✔ Land Register entry (for real estate)
✔ rules for heirs or co-owners

FAQ

Is pre-emption right automatic?
No, only in legally defined cases (e.g., co-ownership of land). Otherwise, it must be contractually agreed.

Must the offer be in writing?
Yes for real estate; for movables, oral offers suffice, but written form is always recommended.

How long does the pre-emptor have to react?
Usually 8 days (movables) and 3 months (real estate), unless agreed otherwise.

Can pre-emption rights be transferred?
Yes, if the contract explicitly allows it.