Exercise of the municipality's right of first refusal
Exercising the right of first refusal means that, when purchasing a plot of land on its territory, the municipality has a right, under certain conditions, to have it or a third party enter into the purchase contract and subsequently become the owner of the property. The right of first refusal may only be exercised if the public interest justifies it.
The exercise of the right of first refusal may be excluded under certain circumstances or may be averted by the acquirer.
Process flow
The seller or buyer informs the municipality of the content of a purchase contract.
If there is no right of first refusal or if the municipality does not exercise it, the municipality must issue a certificate of this at the request of one of the parties involved (so-called negative decision / attestation).
If, on the other hand, the municipality exercises the right of first refusal, an independent purchase contract is newly established between the seller and the municipality. In principle, the same conditions apply (also with regard to the purchase price) that the seller had agreed with the original buyer. However, the purchase price may be limited if the agreed purchase price significantly exceeds the market value in a recognizable manner. In this case, the seller can withdraw from the contract.
The right of first refusal is exercised vis-à-vis the seller; the buyer must be informed of the decision.
Who should I contact?
The responsibility lies with the municipality, the joint municipality and the city.
Requirements
A plot of land is purchased.
The purchase must be notified to the municipality immediately. In the absence of a notification, the period of three months granted to the municipality to exercise the right of first refusal does not commence.
If the municipality makes use of a right of first refusal to which it is entitled and there is no reason for exclusion or if it is not averted, the municipality shall enter into the purchase contract in place of the buyer; if it exercises the right in favor of a third party, the latter enters into the purchase contract.
The municipality or the beneficiary third party must then pay the seller a purchase price that usually corresponds .dem agreed purchase price. Under certain conditions, a lower amount can also be paid, for example if the agreed purchase price clearly exceeds the market value at the time of purchase.
Which documents are required?
The seller or the buyer must immediately notify the municipality of the content of the purchase contract so that it can decide whether to exercise the right of first refusal.
What are the fees?
The buyer and / or the seller will incur costs if they request a declaration from the municipality that it waives its right of first refusal.
The determination of the costs and their amount results from the municipal tax laws of the federal states in conjunction with the administrative fee statutes of the municipality.
What deadlines do I have to pay attention to?
The right of first refusal can only be exercised within three months of notification of the purchase contract to the seller.
Processing duration
A processing time is not directly regulated. However, it follows from the deadline for exercising the right of first refusal (see below) that the municipality must act immediately.
Legal basis
Applications / forms
The right of first refusal must be exercised by means of an administrative act. It is regularly issued in writing.
For an application for the issuance of a negative decision / attestation, no specific form is generally prescribed; this decision is also regularly made in writing.
What else should I know?
- The right of first refusal is excluded in several cases, e.g. in the case of a sale to spouses / relatives / in-laws or if the property is developed and used in accordance with the development plan.
- The right of first refusal can also be averted by the buyer, for example if he
- is able to use the property within a reasonable period of time in accordance with the intended use and
- undertakes to do so within two months of the notification of the purchase contract to the municipality.
- The exercise of a right of first refusal in favour of a third party presupposes that he
- is capable of using the land for its intended purpose within a reasonable period of time, and
- undertakes to do so.
The municipality is entitled to pre-emption rights by operation of law (general pre-emption rights) and pre-emption rights on the basis of statutes (special pre-emption rights). Both species are on an equal footing.
The statutory pre-emption rights serve as instruments under urban planning law to secure urban land use planning.
Author
The text was automatically translated based on the German content.
