You would like to use your right of first refusal – but the owner of the property sees it differently? As experienced lawyers for real estate law, we clarify your claims and represent you nationwide in all areas relating to the right of first refusal.
Exercising this right always presupposes that an effective purchase contract for the object of sale has been concluded with a third party, i.e. the first purchaser. Pre-emption rights can arise either from the law or from contractual agreements.
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A distinction must be made between rights of first refusal under the law of obligations and rights of first refusal in rem. A right of first refusal under the law of obligations can be agreed for both movable and immovable property, but it only applies between the contracting parties and not vis-à-vis third parties. If the owner nevertheless sells the thing to a third party, the pre-emptor can only claim damages, but can no longer acquire ownership. Therefore, a right of first refusal in rem to real estate is regularly secured by an entry in the land register.
This right of first refusal in rem (§§ 1094 ff. BGB), which is only possible in respect of real property and rights equivalent to real property, is directly related to the real property and also binds all persons who become owners in the future or excludes their acquisition by exercising the right of first refusal. It can be established both in favour of a specific person and in favour of the owner of another plot of land.
Anyone wishing to exercise his or her right of first refusal must declare the exercise of his or her right to the obligor. This is a unilateral declaration of intent that must be received. It must therefore be received by the seller. The declaration does not require any particular form, even if the contract of sale requires form. For example, in the case of the purchase of real estate, the declaration can be made in writing, whereas the subsequent land purchase contract must be notarised.
The law provides for certain deadlines for the declaration. For example, § 469 II BGB regulates a preclusive period of two months in the case of real estate and a period of one week in the case of movable property. These statutory deadlines always apply if no other deadline has been effectively agreed by contract.