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Pre-emptive right of the municipality according to the German Building Code (BauGB)

  • Bauen und Wohnen
  • Bauen und Immobilien 



    	    

		    
Procedure

            			
  • The notary informs the municipality of the content of a purchase agreement.
  • If there is no pre-emptive right or if the municipality does not exercise it, the municipality must issue a certificate at the request of one of the parties (so-called negative notice/testate).
  • If, on the other hand, the municipality exercises the pre-emptive right, an independent purchase agreement is newly established between the seller and the municipality. In principle, the same conditions (also with regard to the purchase price) that the seller had agreed with the original buyer apply. 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 notified of the decision.
  • The right of first refusal must be exercised by means of an administrative act. It is usually issued in writing.
  • No specific form is generally prescribed for an application for the issue of a negative decision/testate
  • this decision is also regularly issued in writing.
			
Legal bases
			
More information
  • The right of first refusal is excluded in several cases, for example in the case of a sale to a spouse/relative/associate or if the property is built on 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 2 months of the purchase agreement being notified to the municipality.
  • The exercise of a right of first refusal in favor of a third party requires that he
    
 
    • is in a position to use the property for the intended purpose within a reasonable period of time and
    • undertakes to do so.
  • The municipality is entitled to pre-emptive rights by law (general pre-emptive rights) and pre-emptive rights based on statutes (special pre-emptive rights). Both types are on an equal footing.
  • The statutory pre-emption rights serve as instruments under urban development law to secure urban land-use planning.