Right of first refusal

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The right of first refusal is the right to enter into a sales contract through a unilateral declaration of intent vis-à-vis the seller as buyer.

history

Roman law already knew the right of first refusal as a preferential right ( Latin ius protimiseos ) if land in a village was to be offered first to the members of the village community. It gave the entitled person the right to be able to conclude a contract, preferably before a third party. It presupposes that an owner really wants to sell and that the person entitled to pre-emption is willing to meet the same conditions as another buyer. After the Codex Justinian of Justinian I , the right of first refusal (stand latin praeemptio ) mainly the creditors , the Erbzinsherrn ( emphyteusis ) and the relatives of the seller.

The medieval stacking right of the communities ( Latin ius emporii ) was considered the right of first refusal. Konrad von Hochstaden , Archbishop of Cologne , granted the city of Cologne the right to stack on May 7, 1259, according to which all goods - especially those transported on the Rhine - had to be offered to the citizens of Cologne for three days . This regulation provided the Cologne patricians with considerable wealth. Many German municipalities adopted this stacking right for their area. It was only Kaspar von Stieler who first mentioned the compound right of first refusal in 1691 . The General Prussian Land Law (APL) of June 1794 provided for the entry of the right of first refusal in a register and thus gave it the status of a right in rem . "The right of first refusal is the power to buy an item sold by the owner to a third party under the conditions of the closed purchase or under certain conditions determined in advance" (I 20, § 570 APL). In Austria there was a legal definition in January 1812 with § 1073 ABGB .

In Reinhold Johow's partial draft of the German property law from 1880, the right of first refusal was regulated in §§ 92-99. In accordance with Section 93 (1) of the draft, the right of first refusal does not in principle prevent further encumbrances on the property. The BGB, which came into force in January 1900, adopted both the contractual (§§ 463–473 BGB) and the real variant (§§ 1094–1104 BGB).

The early forms of pre-emptive rights include the rural compulsory purchase and the closer right .

Exercising the right of first refusal

The prerequisite for exercising the right of pre-emption is the occurrence of the pre-emption event ( Section 463 BGB ), i.e. the conclusion of an effective purchase contract for the item relating to the pre-emptive right between the party obliged to pre-empt and the third-party buyer. The right of pre-emption is exercised by declaring the person entitled to pre-emption to the person obliged to pre-empt. This does not require the form specified for the purchase contract ( § 464 Paragraph 1 BGB), but the subsequent purchase contract itself does. The exercise must be carried out in compliance with the statutory exclusion periods ( § 469 Paragraph 2 BGB).

consequences

By exercising his right of first refusal, the pre-buyer does not enter into the existing sales contract, but creates an independent sales contract. Therefore, the sales contract between the seller and the third party is also effective. Usually, the seller will therefore have a right of withdrawal from the third party , in the event that the right of first refusal is exercised by the person entitled, in order not to run the risk of being obliged to transfer the same thing to two people. The person entitled to pre-emption is not protected against any other sale, such as an exchange or a gift , unless there is a circumvention transaction that is difficult to prove. Rights of first refusal are often not distinguished from other similar legal transactions by legally ignorant persons. It can also be a purchase right, forehand or option. Since the right of first refusal has legal consequences for all parties, it must be clarified exactly what is intended. This can avoid legal uncertainty or the risk of damages. For property with the right of first refusal is u. U. to pay attention to the shape .

species

Right of first refusal under the law of obligations

If there is a right of first refusal under the law of obligations, the seller can also sell to a third party - in the event of a sale to a third party, however, the person entitled to pre-emptive could assert claims for damages against the seller. The right of first refusal under the law of obligations is regulated in Sections 463–473 BGB. It can be justified for movable and immovable property by agreement between the owner and the person entitled to pre-emption. The personal right of first refusal only creates legal relationships between these two persons and does not have a material effect (in terms of property law), i.e. does not cause any burden on the thing and is therefore without effect vis-à-vis third parties.

Real right of first refusal

A real right of first refusal is entered in the land register for land or rights equivalent to land . The person entitled to pre-emptive is not promised a fixed purchase price , but the person entitled to pre-emption can purchase the property at the same price as a third party with whom a property purchase agreement has been concluded (usually with the reservation of withdrawal if the right of pre-emption is exercised).

The real right of first refusal is regulated in § 1094 ff. BGB and can only be ordered for land and land rights. It weighs on the matter itself, so it is a real property right . As such, a real right of first refusal according to § 873 BGB arises through real agreement and entry in the land register . If the granting of the right in rem is not based on a causa (legal reason), it can be demanded back according to the rules of unjust enrichment .

A right of first refusal in rem is regularly established in order to secure a right of first refusal under the law of obligations. In this case, its legal basis is a security agreement . The right of first refusal in rem can be established in favor of a specific person, but also in favor of the respective owner of another property.

Statutory rights of first refusal

If the legal requirements are met, laws grant certain pre-emption rights to certain beneficiaries:

  • According to § 577 BGB, the tenant of an apartment has a right of first refusal if the apartment is converted into a condominium and the landlord wants to sell the condominium to a third party. According to a judgment of the Federal Court of Justice (BGH), the tenant is entitled to a claim for damages if he is not granted a right of first refusal.
  • The heirs with him is in the case of selling a Miterbenanteils right of first refusal to § 2034 BGB.
  • According to Section 24 of the Building Code (BauGB) , in certain cases there is a statutory right of first refusal in favor of the municipality in order to secure its land-use planning . A distinction is made between the so-called “general” ( § 24 BauGB) and the “special” ( § 25 BauGB) right of first refusal. In order to conclude a property purchase agreement , a declaration from the municipality about the existence and exercise of the right of first refusal (or waiver thereof) is required. If the municipality does not exercise the right of first refusal, it will submit a so-called waiver of the right of first refusal (negative certificate), which the notary responsible for the registration applies to the municipality and which is usually subject to a fee for the purchaser. Land registries are only allowed to enter land purchase contracts in the land register if the so-called negative clearance is available ( Section 2 (2 ) GVO ). The municipality's general right of first refusal is not entered in the land register, but has to be exercised within two months of the municipality's knowledge by means of an administrative act ( Section 28 (2) BauGB).
  • Another statutory right of first refusal can be found in the Reich Settlement Act, as well as in some state monument protection laws (e.g. Section 22 Monument Protection Act Mecklenburg-Western Pomerania), cable car laws or other special regulations. The Railway Act and a large number of other standards must also be observed. Since there is no general, binding overview, a cadastre of statutory rights of first refusal would be useful.
  • In the North Rhine-Westphalian Landscape Act as part of the amendment to the law in May 2005, landscape planning agencies ( districts , urban districts ) were granted a statutory right of first refusal. This right of first refusal serves to implement certain measures of the landscape plan (cf. § 36a LG NRW).
  • According to Section 48 of the Lower Saxony Nature Conservation Act, the state has the right of first refusal on properties that are wholly or partially in a nature reserve or national park or on which there is a natural monument.

Statutory pre-emptive rights do not have to be granted to the beneficiaries through a legal transaction , but exist by law and must therefore be observed by the addressees of the norm .

International

In Austria , the right of first refusal is regulated in § § 1072 ff. ABGB similar to that in Germany. It is a highly personal right that can be entered in the land register ( § 1073 ABGB). Rights of first refusal must be exercised within 24 hours for movable property and within 30 days for real estate, otherwise they expire ( § 1075 ABGB). The right of first refusal can only be exercised if the person entitled to pre-emptive fulfills the purchase price offered by a third party and the other contractual conditions ( Section 1077 ABGB).

In Switzerland , according to 22 Art. Obligationenrecht a right of first refusal on a plot as by a reservation agreement designated preliminary be justified. Rights of first refusal, which do not determine the purchase price in advance, are valid in writing. It is a personal (compulsory) right ( Art. 959 Paragraph 1 ZGB ); a real right of first refusal, as is known in German law (§§ 1094 ff. BGB), cannot be established. There are statutory rights of first refusal for co-owners vis-à-vis any non-co-owner ( Art. 682 Para. 1 ZGB) or, in the case of agricultural land, especially for close relatives of the seller who are suitable as self- cultivators ( Art. 682a ZGB). The period for exercising the right of first refusal is three months.

Individual evidence

  1. ↑ Max Kaser , Rolf Kütel: Roman private law. 2008, § 23, 9, § 41, 51.
  2. ↑ German Encyclopedia or General Real Dictionary of All Arts and Sciences, Volume 1, 1778, p. 128
  3. ↑ Kaspar von Stieler: Der Teutschen Sprache Genealogy and Fortwachs , Volume 2, 1691, Sp. 1552.
  4. ↑ Ulrike Köbler: Becoming, changing and being of the German private law vocabulary. 2010, p. 411.
  5. ↑ BGH, judgment of January 21, 2015, Az .: VIII ZR 51/14
  6. ↑ Christian Armbrüster, Diether Huhn, Nicola Preuß, Thomas Renner, Hans-Joachim von Schuckmann: Notarial Act and Service Regulations for Notaries: Commentary , 2008, p. 374.
  7. ↑ § 48 Lower Saxony Nature Conservation Act
  8. ↑ Maja Baumann: Reservation Agreement: Reservation Agreement for Real Estate Business , accessed on September 4, 2017