Preemption is the right to be preferred to others, on equal terms, in the purchase of an asset. Preemption is a potestative right (ability to change a subjective legal situation) and should not be confused with the obligation to contract (ie to conclude the contract). Whoever grants the pre-emption is called a “pre-emption”; the subject to whom the pre-emption is recognized is called the “beneficiary” or “pre-emption”. The tenant of a particular type of property benefits from the right of first refusal.
There are two types of pre-emption: legal and voluntary.
The voluntary pre-emption responds to the principle of contractual autonomy (1322 of the Italian Civil Code) and is freely agreed upon by the parties. It is found rather rarely in the real estate sector; it can be for consideration or free of charge. The pre-emption agreement is always mandatory and cannot be opposed to third parties, as it cannot be transcribed, even if it relates to immovable property. Its violation entails exclusively the right to compensation for damage.
Legal pre-emption is established by law in specific cases; it does not allow prior renunciation (the non-compliant clause is void) and its exercise is subject to compliance with certain conditions. It is irrelevant whether the legal pre-emption is deducted in the contract or not, because it has its source in the law. It has a real nature (it is possible, that is, to recover the transferred asset in violation of the pre-emption right within 6 months of the transcription of the deed) and it is enforceable against third parties. Failure to comply with the pre-emption entails, in addition to the redemption of the asset, the right to compensation for damage (with rare exceptions), equal to the advantage that the beneficiary would have obtained if he had been preferred to the third party.
The procedure for exercising the pre-emption consists in the obligation of the pre-emptionant to communicate in advance to the beneficiary (s) the will to alienate the property on which the right rests. The communication (so-called "denuntiatio") is made by notifying, to all beneficiaries, of the contractual proposal of the will to sell the asset, within 30 or 60 days, depending on the case, starting from the manifestation of the will to sell the well, from the acceptance of the purchase proposal or from the transfer deed.
The communication must contain:
- the consideration in cash;
- the conditions indicated in the sale proposal;
- the invitation to exercise the right of pre-emption or not.
The denuntiatio must be made under the same conditions offered by the third party: in the event that there is no identity between the latter and the conditions contained in the communication, the beneficiary in the event of alienation can redeem the asset from the third purchaser and take action for compensation for the damage. The beneficiary can choose whether to make use of the pre-emption within 30 or 60 days, depending on the case, following receipt of the communication (in the case of multiple pre-emption rights, the term for the exercise starts from the last notification). If the beneficiary does not notify the pre-emption holder and all the other entitled parties of his intention to avail himself or not of the pre-emption within the indicated term, he is considered to have renounced. In this case, however, it would be good practice to summon the pre-emption right to the preliminary sale so that the notary formally inserts the beneficiary's declaration to expressly renounce to exercise the pre-emption. The exercise of the pre-emption entails the conclusion of the contract between pre-emption and pre-emption.
CASES OF LEGAL PREVENTION
Preemption and succession retraction (Article 732 of the Italian Civil Code)
Unlike the ordinary community property regime, to which pre-emption does not apply, in the case of an inheritance of an asset following succession mortis causa, the co-heirs have the right to be preferred to others, on equal terms, in the case of the sale of a share of the asset. The pre-emption applies not only when the asset is undivided, but also when the shares (or the entire asset) have already been assigned. The purpose of the rule is to avoid the dispersion of family assets: in the absence of notification to the pre-emption co-heir, he can redeem the property from all successors in title (so-called "succession retraction").
Preemption in the family business (Article 230 bis of the Italian Civil Code)
In the event of an inheritance division or company transfer, family members who work continuously within the family or business have the right of first refusal over the company.
Preemption in non-residential leases (so-called "urban pre-emption", art. 38 law 392/1978)
When the pre-emption relates to properties used for carrying out industrial, commercial, artisanal, tourist activities, we speak of "commercial urban pre-emption". The pre-emption, in this case, is intended to protect the commercial goodwill. The right is granted to the tenant on condition that the activity involves direct contact with the public and consumers. Properties intended for professional activity are excluded (regardless of the cadastral category). The pre-emption does not exist in the case of a block sale; in the case, however, of cumulative sale, the law grants pre-emption only with respect to the property covered by the rental contract. In the event that the lessor intends to transfer the leased property for consideration, he must notify the tenant with a deed notified by a bailiff. If the right of pre-emption is exercised, the payment of the purchase price, unless otherwise indicated in the lessor's communication, must be made within 30 days, starting from the 60th day following that of the notification of the communication by the owner, at the same time as the signing of the sales contract or the preliminary contract.
Preemption in favor of the tenant of a film company (Article 20 of Legislative Decree 26/1994, Law 153/1994)
The legislation in support of the film industry grants the non-owner the right of first refusal in the case of sale of the premises used as a cinema. For the exercise of the right of pre-emption, the provisions of l. 392/1978 (law on fair rent).
Preemption in residential leases (Article 3 c. 1, letter g, Law 431/1998)
If the owner of the property decides to sell the property to third parties and has no ownership of other residential properties other than the one in which he lives, he can, at the first natural expiry of the contract, avail himself of the right to refuse the renewal, notifying the tenant with at least 6 months notice. In this case, the law grants the tenant the right of first refusal. In the event that the owner decides to sell without notifying the tenant, he can exercise the right of redemption. For the exercise of the right of pre-emption, the provisions of l. 392/1978 (law on fair rent).
Preemption of properties of historical, artistic and archaeological interest (so-called "artistic pre-emption" art. 60 of Legislative Decree 42/2004)
The pre-emption relates to cultural assets alienated for consideration or transferred to a company. The ministry, the region or another territorial public body can exercise the right of pre-emption. In this case, the communication to the pre-emptionary is subsequent, and not preventive: it must be notified within 30 days from the deed of transfer for consideration (sale, exchange, contribution to a company), and does not produce effects as long as the pre-emption has not communicated that it does not want to exercise the pre-emption (condition precedent). In the event that the ministry exercises pre-emption on a portion of the property, the buyer can withdraw from the contract.
Preemption in favor of the Park Authority (Article 15 of Law 394/1991)
The right exists in the hypothesis of transfer for consideration of the property and real rights on the land within the reserves and other areas indicated by the framework law on protected areas.
Preemption in the case of assets alienated from institutions for the support of the clergy (art.37, l. 222/1985)
For this particular type of assets, the pre-emption is mandatory in the event that their value exceeds 3 million euros. In this case, the law provides for a priority order for the pre-emption offer:
Failure to comply with the obligation of pre-emption renders the deed stipulated in violation of it null and void.
Preemption in favor of buyers of properties to be built (Article 9, Legislative Decree 122/2005)
The pre-emption may be exercised in the event of a forced sale of the property, even if the buyer has already enforced the surety, provided that the property was purchased as a main residence and delivered to the buyer. In this specific case, the right of redemption in favor of the successful bidder is excluded.
Preemption in subsidized construction (Article 28, Law 513/1977)
In the construction carried out by the state, the regions and other local authorities, in the event that the assignee intends to sell the housing, he must notify the institution. If interested, the entity exercises the right of first refusal within 60 days from receipt of the communication.
Agrarian pre-emption (Article 8, Law 590/1965; Article 7, Legislative Decree 228/2001)
Agrarian pre-emption requires the existence of some subjective and objective requirements:
. the pre-emptionary must be a direct farmer (or, in some cases, a professional agricultural entrepreneur);
. has not sold, in the previous two years, other rustic funds with a taxable land tax higher than € 0.52;
. the fund subject to pre-emption must not exceed the extension of three times the surface corresponding to the working capacity of one's family.
Preemption in the disposal of public real estate assets (Article 3, Paragraph 5, Legislative Decree 351/2001 converted into Law 410/2001; Article 6, Paragraph 5, Law 104/1996)
The law recognizes the right of first refusal in favor of the tenants of residential real estate units owned by public bodies, only in the event that the properties are sold at a price lower than that of exercising the purchase option. In order for the right of first refusal to exist, the tenants and other cohabitants of the family unit must not be owners of another home suitable for the needs of the family unit in the municipality of residence.
When buying a property it is always important to ascertain whether there are pre-emptive rights in place, in order to avoid lightning from the blue. In the case of legal pre-emption, the assessment is made by examining the special sector laws relating to the categories of properties mentioned above; if the pre-emption is voluntary, it is necessary to pay attention to the clauses of the lease. If so, it will be good practice to include in the purchase proposal the negative suspensive condition of the non-exercise of the pre-emption by all those entitled. If you want to sell or buy a property subject to pre-emption contact us, we will show you the correct procedure to follow.