Can the town hall buy a property and at the price that suits it? Checkmate? No, because the law still allows you to save the building.
Between the drafting of a compromise or a promise to sell a home and the signing of the authentic deed of sale at the notary, it takes between three and five months. This length of time is largely due to the right of preemption granted by article L 210 of the town planning code to local authorities, in particular municipalities.
Indeed, when the municipality has instituted the right of urban preemption, its official name, on all or part of its territory, it has during each real estate sale the privilege of acquiring housing as a priority, by winning over the prospective buyer.
The legislator has established the urban right of preemption in order to help cities implement, in the general interest, their town planning and development operations. They may need to appropriate land or private buildings to build community facilities, schools, gymnasiums, create or maintain economic activities; fight against insalubrity by buying dilapidated apartment buildings to rebuild or renovate them…
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Exceptions to the right of preemption
Family transmissions of real estate by donation, shared donation, succession, inheritance as well as transfers of shares of joint ownership between co-owners are not subject to the right of preemption.
The shares of SCI, real estate civil company, are preemptable, except when the transfer of shares takes place between members of the same family up to and including the fourth degree.
Preemption, instructions for use
You have decided to sell a property. After the signing of the compromise or the promise of sale, if the accommodation is located in a pre-emption zone, the notary sends the municipality a Declaration of intent to alienatethe DIA which describes the accommodation offered for sale, indicates its price and mentions the conditions of the sale.
The municipality then has two months to express its decision. Its silence signifies that it renounces to implement the right of preemption leaving the field open to the sale: the seller and the purchaser can then conclude the sale at the price indicated in the declaration of intention to alienate, therefore in the compromise or the promise of sale.
For the seller, things get complicated if, before the end of the two-month period, the municipality decides to initiate a preemption procedure. In this case, it ousts the prospective purchaser and takes its place as purchaser of the accommodation at another price, generally much lower than that given in the compromise or the promise to sell.
The decision to preempt must be justified, it belongs to the competence of the Municipal Council, which can delegate its power to the mayor of the municipality. It is wise to check that the mayor actually holds this delegation of power established by the municipal council in his favour.
If the price carried on the DIA exceeds the sum of 180000 euros excluding taxes and duties, the municipality is required to seek, within the following month, the opinion of the Domains service so that it can give its estimate of the price of the property subject to the preemption. This property valuation is not binding on the municipality, which can offer a much lower price.
The municipality notifies its decision to the seller in the form of an order, indicating the reason for preemption, the price at which it has decided to acquire the property, and the terms of payment. The owner can give up selling his property and the matter remains there. He can also accept the municipality’s offer or express his disagreement within two months. If he does not respond, he is deemed to have given up selling.
It is important to inform the prospective buyer of the preemptive decision of the municipality in order to be released from your commitment to sell your property to him and so that he can suspend his project with his partners (the bank in particular for the credit real estate or borrower insurance in particular) while waiting to find another home to acquire.
Late payment deadlines
Late payment of the price is a recurring problem suffered by sellers whose property is preempted. Yet the law is clear.
Article L213-14 of the Town Planning Code provides that the acquisition price is paid by the municipality to the seller within four months of the decision to acquire the property. In the event of non-compliance with this deadline, the seller may freely sell his property.
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Discuss the price proposed by the town hall
How to react to a municipality that has decided via the right of preemption to acquire your property at a price much lower than that agreed between you and the prospective buyer?
If the owner whose property is preempted objects to the proposed price and maintains his own, he must inform the town hall by registered letter with acknowledgment of receipt. Don’t forget to enclose a copy of the municipal decree notifying you of the preemptive decision. The municipality then has a period of fifteen days to seize the expropriation judge in order toobtain judicial fixing of the price. If she lets this deadline pass without reacting, this means that she is giving up her project and letting the seller sell her property at the initial price.
At the latest within three months following the date of referral to the expropriation judge, the town hall must deposit with the deposit and consignment fund a sum equal to 15% of the price assessed by the Domains service and notify the seller of the receipt. proving that this consignment has indeed taken place.
Failing to fulfill these two formalities of deposit and transmission of the receipt, the municipality is deemed to have waived the preemption, according to article L213-4-1 of the Town Planning Code. It should be noted that the procedure before the expropriation judge, who is a judge of the Court of Justice of the location of the preempted property, requires the services of a lawyer to be used.
Once the price has been set by the judge, the municipality can decide to acquire your accommodation at the price set by the court or waive the preemption. If you decide to sell when the municipality has waived the preemption, you must respect the price set by the judge, possibly increased according to the evolution of the construction cost index.
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