While concluding the Real Estate purchase agreement, special care must be taken to ensure that the right of pre-emption is not violated, the violation of it can lead to the absolute nullity of the agreement.
The right of pre-emption is the right of certain people to buy real estate before other persons. This right may be guaranteed by law, contract, or some other legal act.
One of the legal forms of the right of first refusal, which citizens often encounter in practice, is the right of first refusal stipulated in favor of co-owners of real estate.
According to the provisions of the Law of the Fundamentals of Ownership Relations, as well as the Law on Real Estate Transactions, a co-owner of real estate who intends to sell his co-owned part is obliged to offer it first to the other co-owners, while in the case where there are several co-owners, the co-owner has priority in exercising the right of pre-emption with a larger co-ownership part, and when there are several co-owners who would have the right of pre-emption on this basis as well, the real estate co-owner has the right to decide for himself to whom he will sell his part of the real estate.
The situation is similar with agricultural land. Namely, the owner who intends to sell agricultural land is obliged to first offer it to the owner of the neighboring agricultural land, while in the event that there are several owners of neighboring land whose agricultural land borders the seller’s agricultural land, the owner of the neighboring land has priority in achieving the right of pre-emption whose agricultural land mostly borders the seller’s land, and if there are several owners of neighboring land whose agricultural land mostly borders the seller’s land, and the boundary lines are equal, the priority between them is the owner of the neighboring land whose area is the largest.
In achieving the right of pre-emption, the owner of the adjacent land is ranked behind the co-owner of the land subject to sale.
A co-owner of real estate who intends to sell his co-owned part, sends an offer by registered letter simultaneously to all owners of the right of pre-emption, which must contain information about the real estate, the price and other conditions of sale, to which the owners of the right of pre-emption is obliged to respond within 15 days from the day of receiving the offer, also by registered letter, declare. If, on the other hand, the owner of the right of pre-emption, to whom the offer was made, within 15 days from the day of receiving the offer, does not declare himself in the manner described, the seller can sell the real estate to another person, but not under more favorable conditions, and if the owner of the right of pre-emption does not accept the offer, and the owner does not sell the real estate to a third party within one year from the date of non-acceptance of the offer, he is obliged to act again in the previously described manner by delivering the offer to the owners of the right of first refusal.
In case that the seller sold the real estate and did not previously offer it to the owner of the right of pre-emption or sold the real estate under conditions more favorable than the terms of the offer, the owner of the right of pre-emption can file a lawsuit within 30 days, counting from the day when the owner of the right of pre-emption found out about the sale of that real estate, and no later than within two years from the date of conclusion of the contract on the sale of real estate, to demand the cancellation of the contract on the sale of real estate and that the real estate be sold to him under the same conditions, and to simultaneously deposit with the competent court the amount in the amount of the market value of the real estate. The form of conclusion of the Real Estate Trading Act is mandatory, and if it is not complied with, it will be considered that there has been a violation of the right of pre-emption, so the person who owns this right can file a lawsuit in court within one year from the day of finding out about the transfer of the holding property, and at the latest in within two years from the date of handing over the real estate in the holding, to request the achieving of that right, simultaneously depositing an amount equal to the market value of the immovable property on the day of filing the lawsuit.
In its provisions, the Law of Obligations also predicts a special type of purchase and sale – a sale with the right of first refusal, in which the buyer undertakes to inform the seller of the intended sale of the item to a specific person, as well as the conditions of that sale, and to offer him to buy the item for the same price , whereby the seller is obliged to inform the buyer in a reliable manner about his decision to use the right of pre-emption within one month, counting from the day when the buyer informed him about the intended sale to a third party. Simultaneously with the statement that he is buying the item, the seller is obliged to pay the price agreed with the third party, or to deposit it with the court
The right of pre-emption ends after five years from the conclusion of the contract, if it is not agreed that it will end earlier, even if a longer term is stipulated, it is reduced to a term of five years.
If the buyer sold the item and transferred ownership to a third party without notifying the seller, and if the third party was aware or could not remain unaware that the seller has the right of pre-emption, the seller may, within six months from the day he became aware of this transfer , to demand that the transfer be canceled and that the thing be assigned to him under the same conditions. If the buyer has incorrectly informed the seller about the conditions of sale to a third party, and if the third party was aware of it or could not remain unaware of it, deadline of six months begins to run from the day the seller learned about the correct terms of the contract. In any case, the right of pre-emption ends after five years have passed since the transfer of ownership of the item to a third party.