Right of first refusal

A right of first refusal gives the holder the possibility, in case of sale to complete a thing to a third party by a unilateral receiving needy design statement between you and the seller signed a purchase agreement in principle with the same conditions.

Exercise of pre-emption

Prerequisite for the exercise of pre-emption is the occurrence of Vorkaufsfalls ( § 463 BGB), so the conclusion of a valid purchase agreement on the subject between Vorkaufsverpflichtetem and third party purchaser in question the right of first refusal. The exercise of pre-emption by declaration of Vorkaufsberechtigten against the Vorkaufsverpflichteten. This does not require the purchase contract for the specific form (§ 464 para 1 BGB), but rather the subsequent purchase agreement itself, the exercise must be carried out in compliance with the statutory limitation periods ( § 469 para 2 BGB).

Follow

The salesman unrolls passes through the exercise of his Vorkaufsrechtes not in the existing contract of sale, but it results in a unique contract. Therefore, the purchase contract between the seller and the third party is effective. Usually, the seller is therefore against the third party a right of rescission in the event of exercise of pre-emption by the entitled leave, give, not to take the risk to be committed against two persons for transfer of ownership of the same thing. The Vorkaufsberechtigte is against other disposal, such as an exchange or a gift, not protected, unless it is present at evading the will are difficult to prove. Pre-emption rights are often not distinguished from rechtsunkundigen people of other similar transactions. It may also be entitled to acquire, a forehand or option. Since the right of first refusal for all parties attracts legal consequences, is to clarify exactly what is wanted. As a result, legal uncertainty or risk damages are avoided. In Property with right of first refusal is u.U. to follow the mold.

The legal right of first refusal to blame

The law of obligations preemption is in § § 463 - 473Vorlage: § § / Maintenance / juris - page BGB regulated. It can be justified for movable and immovable property by agreement between the owner and Vorkaufsberechtigtem. The personal right of first refusal only creates legal relations between these two people and does not affect rights in rem (matter sector) and thus does not cause stress on the matter and is therefore to third parties without effect.

The pre-emptive right in rem

The rem preemption is governed by § 1094 et seq and can be ordered only for land and land rights. It weighs on the thing itself, so it involves a real property law. As such, creating a rem right of first refusal pursuant to § 873 BGB by agreement and registration in the land register. If the grant of the right in rem no causa (legal ) lies at the bottom, it can be removed again demanded by the rules of unjust enrichment.

Regularly rem right of first refusal is ordered to protect a legal right of first refusal to blame rem. In this case, its legal basis is a security agreement. The pre-emptive right in rem may be ordered in favor of a particular person, but also for the benefit of the owner of another property.

Statutory pre-emption rights

• According to § 577 BGB of the tenants of an apartment has a right of first refusal if the property is converted to a condominium and the landlord wants to sell the condominium to a third party. However the renter is after a judgment of the OLG Celle to no claim for damages, if the communication concerning the preemption is delayed.

• The heirs with him is in the case of the sale of Miterbenanteils preemption under § 2034 BGB.

• According to § 24 of the Federal Building Code ( Building Code ) applies in certain cases of a statutory right of first refusal in favor of the municipality for the purpose of securing their land use planning. A distinction is made between the so-called right of first refusal "general" (§ 24 Building Code ) and the "special" (§ 25 Federal Building Code). At the conclusion of a land purchase contract, a statement by the municipality over the existence and exercise of Vorkaufsrechtes ( or on its waiver ) is required. The community is, if it does not exercise the right of first refusal to make a so-called Vorkaufsrechtsverzichterklärung ( negative clearance ), is proposed by the notary in the community and is a charge usually for the purchaser. Land registries may land sale contracts only enter in the land, if the negative clearance so-called present ( § 2 para 2 GMOs). The general right of first refusal of the municipality is not registered in the land register, but must be exercised since knowledge of the community within two months by administrative act ( § 28 para 2 Building Code ).

• Another statutory right of first refusal can be found in the Empire Settlement Law. Likewise, in some country's legal monument protection laws, laws or cable car. Also the Railway Act and a variety of other standards must be observed. Since there is no general binding overview, a register of statutory pre-emption rights is necessary.

• Also in the North Rhine-Westphalian landscape law of laws, amendment of May 2005 on the carriers of landscape planning ( counties, county -level cities) has been granted a statutory right of first refusal in the frame. This preemption is used to implement certain measures of landscape plan (see § 36a LG NRW).

• According to § 48 of the Lower Saxony Conservation Law of the country is on land that lie wholly or partly in a nature reserve or national park or on which a natural monument is, a right of first refusal to.

• Statutory pre-emption rights of the community to be justified in some conservation laws of the countries, such as by § 22 Denkmalschutzgesetz Mecklenburg-Vorpommern.

Legal History

Too early forms of pre-emption rights belong Anfailzwang and solution right.