How can I reserve a right of pre-emption when selling or exchanging land so that it also binds subsequent owners?

You are selling part of your garden to a neighbour or exchanging land with a municipality and want to be sure that, if the new owner later decides to sell it, you will have priority. This is what a right of pre-emption provides. Whether it also protects you if the land passes to another owner in the meantime depends on how the right is agreed.

An obligation on the buyer or a right in rem

A person who sells an asset subject to a requirement that the buyer offer it back to them for purchase if the buyer wishes to sell it has a right of pre-emption (Section 602(1) of the Civil Code). Ordinarily, however, it binds only the person who undertook to make the offer (Section 603(1)). If the buyer sells the land on, this right of pre-emption does not bind their successor. A right of pre-emption in rem provides stronger protection.

The following quotation is reproduced in its original language:

Predkupné právo možno dohodnúť aj ako vecné právo, ktoré pôsobí aj voči nástupcom kupujúceho. Zmluva sa musí uzavrieť písomne a predkupné právo sa nadobúda vkladom do katastra nehnuteľností.

§ 603 ods. 2 Občianskeho zákonníka

The Cadastre records a right of pre-emption if it is intended to have effect as a right in rem (Section 1(1) of the Cadastral Act). The contract must therefore make clear that it is a right in rem. Registration of the right of pre-emption is usually applied for together with registration of the transfer of the land.

Is this also possible on an exchange?

Under an exchange agreement, each party is treated as the seller of the asset they transfer and as the buyer of the asset they receive (Section 611). In Cadastral Bulletin 1/2024, the Geodesy, Cartography and Cadastre Authority (ÚGKK) concluded from this that a right of pre-emption, as an ancillary provision of a sale agreement, may also be agreed as a right in rem in an exchange agreement. A party may therefore reserve a right of pre-emption over the land they transfer in the exchange. Further aspects of exchanges are discussed in the question on land exchange agreements.

What to address in the contract

The law provides only basic rules, several of which apply unless otherwise agreed:

• Which transfers are covered. The right of pre-emption applies to a sale. It applies to a gift or a subsequent exchange only if it is also agreed to cover disposals other than a sale (Section 602(2)).
• Time limit. Unless a period is agreed, the beneficiary must pay for the property within two months of the offer. An offer concerning immovable property must be in writing and include all the terms (Section 605).
• Price. The beneficiary pays the price offered by someone else, unless otherwise agreed. If the beneficiary is also unable to meet the other terms offered and these cannot be compensated for by payment of their assessed value, the right of pre-emption is extinguished (Section 606).
• The beneficiary. Bear in mind that the right of pre-emption does not pass to the beneficiary’s heir and cannot be transferred to another person (Section 604).

If the time limit expires without payment, the right of pre-emption is extinguished under Section 605. For a right of pre-emption in rem, however, Section 603(2) provides that, if the seller does not buy the asset offered by the buyer, the seller retains the right of pre-emption against the buyer’s legal successor as well.

If the land was not offered to you

If a right of pre-emption in rem has been infringed, you may require the acquirer to offer the land to you for sale, or you retain your right of pre-emption (Section 603(3)). To assess whether you should have received an offer on the same terms, you need to know the price.

The Cadastre provides information on the price of a property to its owner on request. Access to documents in the collection of deeds is restricted to the owner or another entitled person, their legal predecessors and successors, and the other persons and authorities listed in the Act (Section 68(2) and (3) of the Cadastral Act). In Cadastral Bulletin 2/2022, ÚGKK takes the view that, when a beneficiary of a right of pre-emption inspects the collection of deeds, they must also be given access to the purchase price stated in the contract, because without it they cannot assess whether the terms were complied with. It also regards a co-owner holding a share in the property as an owner. The procedure for co-owners’ statutory rights of pre-emption is described in the questions on co-owners’ rights of pre-emption and selling a share without offering it to a co-owner.

How we can help

We will incorporate a right of pre-emption in rem into an exchange agreement or an agreement for the purchase and sale of land, including time limits, the transfers covered and the method of making the offer. We will submit an application for registration in the Cadastre so that both the transfer and the right of pre-emption are registered in a single proceeding.