Cau­tion­ary tale

Will the lo­cal author­ity have right of first re­fusal on your prop­erty when you sell it? Peter Hind­ley shares a les­son he learned the hard way

French Property News - - Contents -

Don’t get caught out by your lo­cal author­ity’s pre-emp­tive pur­chase rights

Back in 2005, I bought a very di­lap­i­dated medieval house in the cen­tre of the old quar­ter of a small town in Gers. We lived in a vil­lage nearby and I bought the house pri­mar­ily for my brother and his wife who had ex­pressed a wish to move to France. The house was in very poor con­di­tion, but it suited my brother, who was a builder with ex­pe­ri­ence in restor­ing an­cient build­ings. There was also a small two-bed­room house (a for­mer boulan­gerie) and garden, as part of the prop­erty. Sadly, my brother de­vel­oped a brain tu­mour and died so he was un­able to move to France. The house was there­fore once more put up for sale.

All the fun of the fête Mean­while, we cleaned out the build­ing, which had been used as a builder’s work­shop, and car­ried out some re­pairs and main­te­nance. I also did a great deal of re­search on the house, and its use over the pre­vi­ous 200 years.

The town held a ‘ fête des mille ans’, a fes­ti­val recre­at­ing vil­lage life as it would have been 1,000 years ear­lier. Dur­ing one of these fêtes, at the re­quest of the com­mune’s or­gan­is­ing com­mit­tee, we had an ‘open house’. More than 500 peo­ple came to visit the his­toric house, in­clud­ing the maire and coun­cil­lors. It was rather ironic; here was an English­man telling French peo­ple about their lo­cal his­tory!

Find­ing a buyer We did ac­tu­ally of­fer to sell the house to the com­mune but they de­clined. So we ad­ver­tised the house on the fore­run­ner to fran­ce­prop­er­ and, af­ter hun­dreds of en­quiries, found a buyer, a young man with a passion for restor­ing old houses in France. We were de­lighted to find some­one with a real love of old French prop­erty. He paid the de­posit, and pro­ceeded to sell his house near Li­mo­ges to com­plete the pur­chase. In or­der to re­duce the cost of the pur­chase, and fund the restora­tion work, our buyer opted to buy the main house, but not the at­tached old house and garden.

When his house sale went through, he trans­ferred the money for the pur­chase of the house to the no­taire. A date was set for the fi­nal sign­ing. A week be­fore the sign­ing, our new buyer asked if he could move some of his tools and equip­ment to the house, pend­ing the sign­ing. We agreed. Af­ter all what could go wrong?

A nasty shock The day be­fore the sign­ing, I got a call from the no­taire’s of­fice, ask­ing me to go and see him ur­gently. The com­mune had de­cided to step in at the last minute and ex­er­cise its droit de préemp­tion (lit­er­ally, its pre-emp­tive pur­chase right). This is a le­gal power giv­ing a lo­cal author­ity the right of first re­fusal to buy a prop­erty within a de­fined area and in cir­cum­stances in which it is deemed in the broader in­ter­ests of the com­mu­nity. In other words, the com­mune had pri­or­ity and the sale to our buyer could not pro­ceed.

I had to tell our buyer. He was dev­as­tated. Grown men don’t usu­ally cry; he did. With no home, and Christ­mas just around the cor­ner, he had to gather all his tools and pos­ses­sions and put them in one of our empty barns. He

He then went back to his par­ents’ house in the UK and never came back. His pos­ses­sions re­mained with us, un­touched, for three years!

Fight­ing back I then set about try­ing to un­der­stand what had hap­pened and how this could have oc­curred. Af­ter all I had, in good faith, mar­keted the house. I felt I had, al­beit un­in­ten­tion­ally, de­stroyed this man’s dream. The de­tails on our copy of the acte au­then­tique (deed of sale) from when we pur­chased the prop­erty showed that the droit de préemp­tion had lapsed.

I con­tacted Uk-based French le­gal con­sul­tant Lil­ianne Levasseur Hills. We had used her ser­vices when we first bought our house. She is a qual­i­fied no­taire and now prac­tises in the UK. She got in touch with our no­taire and quickly got to the bot­tom of the mat­ter.

When we’d bought the house in 2005 the droit de préemp­tion had in­deed lapsed, but two years later, in 2007, the com­mune had re­vised its plan lo­cal d’ur­ban­isme (lo­cal de­vel­op­ment plan) and, in so do­ing, had re­de­fined the area where they had au­to­matic droit de préemp­tion. They moved the defin­ing line from the cen­tre of the road in front of our house to the cen­tre of the road to the rear of our house. They did not in­form me. They were not obliged to do so; they merely had to post the min­utes of the monthly meet­ing at which the de­ci­sion was taken, on the public no­tice board out­side the mairie.

I asked Lil­ianne if I could chal­lenge the mat­ter in the courts. She was not hope­ful, but rec­om­mended an ad­vo­cate who might be able to help. I had a tele­phone con­sul­ta­tion with him. He was not very op­ti­mistic, but said we could chal­lenge their fail­ure to pub­li­cise the re­vised plan widely in the com­mune. I would have to make a pay­ment of £3,000 to start pro­ceed­ings. Hav­ing al­ready spent over £1,000 on le­gal fees, I didn’t pro­ceed with this ac­tion.

Sell­ing to the com­mune I signed the acte au­then­tique just be­fore Christ­mas and left the keys to the prop­erty with the no­taire. The maire, who was sup­posed to sign and re­ceive the keys, did not turn up, but signed two weeks later.

As the prop­erty was now in the own­er­ship of the com­mune, I ex­pected to re­ceive pay­ment. I was in for a long wait. Two months af­ter the sign­ing I asked the no­taire why I had not re­ceived pay­ment. He said he did not know. An­other two months later, and still no pay­ment, I was in­formed the mairie could not make a pay­ment as the sale had not yet been reg­is­tered with the Bureau des Hy­pothèques (mort­gage of­fice), an ad­min­is­tra­tive body now su­per­seded by the Land Reg­istry.

I then be­gan to study the Code Ru­ral, reg­u­la­tions cov­er­ing farm­ing rights and the use of ru­ral land, and there I dis­cov­ered that the com­mune had up to six months to pay the pur­chase price (re­cently re­duced to four months).

I also dis­cov­ered that if they did not pay the pur­chase price af­ter six months and one day, I could re­claim the prop­erty by means of ‘ droit de rétro­ces­sion’. This gives the orig­i­nal owner or orig­i­nal would-be buyer the right to buy back the prop­erty if the au­thor­i­ties have not met the re­quired con­di­tions.

The fi­nal blow

Six months and one week later, I sent a let­ter to my no­taire in­struct­ing him to ex­er­cise the droit de rétro­ces­sion. Sur­prise sur­prise; the money was paid into my ac­count six days later. I learned later that I had made a pro­ce­dural er­ror. Had I served the no­tice di­rectly to the com­mune, with a copy to the no­taire, I would have re­gained the prop­erty. As it was, the no­taire in­formed the com­mune of my in­ten­tion and so gave them an op­por­tu­nity to make the pay­ment, thus pre-empt­ing rétro­ces­sion. Know your friends!

The date the com­mune re­vised the lo­cal plan and re­gained their droit de préemp­tion was just four months af­ter the fête when we opened our house for vis­i­tors. Hav­ing gained pos­ses­sion of the house, the com­mune did noth­ing with it for four years. The roof be­gan leak­ing badly and roof tiles were fall­ing from the roof. They even­tu­ally re-roofed it. It re­mains empty...

I had to tell our buyer. He was dev­as­tated. Grown men don’t usu­ally cry; he did

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