Pre-emption right: when it exists and how it works
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What pre-emption is in simple termsWhen pre-emption existsHow it works step by stepWhat happens if the seller does not notify youThe most common mistakesAnd if the property is rented?What to ask the seller before signingHow to check with the notaryPre-emption and court auctionsIn practiceFrequently asked questionsSourcesPre-emption (prelazione) is the right to be preferred over an outsider when the owner sells: at the same price and conditions, the property goes to you first. It does not oblige you to buy, and it exists only in the cases provided by law or written into a contract.
What pre-emption is in simple terms
Imagine the owner of a property wants to sell it. If you have a pre-emption right, before closing with any buyer the owner must tell you the price and conditions. You can reply that you will buy on the same conditions. If you reply in the right way and within the right time, the sale goes to you.
If you waive it, or do not reply in time, the owner may sell to the third party on the conditions they have told you. Pre-emption is therefore a priority, not an obligation to buy.
Where do you find it? Usually not in the sale advert. It may be in a lease, in a preliminary contract (preliminare) or directly in the law. The preliminary contract is the agreement by which the parties commit to sign the final contract later: the guide on the compromesso explains it.
When pre-emption exists
Pre-emption can have two origins.
- Statutory: provided by law. The clearest case is the leased commercial premises. Article 38 of Law 392/1978 grants the tenant, that is the person who rents it, the right of pre-emption in case of sale.
- Contractual: agreed by the parties in the contract. For example, the seller undertakes to give you priority if they decide to resell.
For a home used as a residence I cannot give you a general rule identical to that for commercial premises. The case depends on what is written in the contract and on what the law provides for that situation. If you do not find a written clause, do not assume there is one: ask the notary.
How it works step by step
- The owner finds a buyer and agrees price and conditions, often with a proposta d'acquisto or with a preliminary contract.
- They tell the person holding the pre-emption right the price, payment conditions and details of the offer.
- You have a deadline to reply. You find it in the law or in the contract. I do not give you a number: check it in the text you have in hand, because if you let it lapse you may lose the right.
- If you accept on the same conditions, the sale goes to you.
- If you waive it or do not reply, the owner may sell to the third party on the conditions communicated.
Invented example. A commercial premises is leased to Marco. The owner finds a buyer offering 100.000 €. They tell Marco the price of 100.000 € and the payment conditions. Marco replies in writing that he buys on the same conditions: the premises go to him, and the outside buyer is left out.
If the third party offers less, or if the conditions change, the communication is usually to be repeated with the new details. Pre-emption applies on the conditions communicated, not at a price chosen by you.
What happens if the seller does not notify you
If the owner sells without telling you anything, your right does not disappear by itself. What remedies you have, and against whom, depends on the type of pre-emption (statutory or contractual) and on the specific case.
As soon as you find out, speak with a professional. The longer you wait, the harder it becomes to remedy, because sales already signed weigh on the situation.
The most common mistakes
- Not reading the lease or the preliminary contract looking for a pre-emption clause.
- Letting the deadline to reply pass, thinking you still have time.
- Replying only verbally. A spoken reply is hard to prove: always reply in writing.
And if the property is rented?
Before buying a home occupied by a tenant, read the lease and look for any pre-emption clauses in favour of the tenant. If it is a commercial premises, the rule of article 38 of Law 392/1978 mentioned above applies. The exact number of any deadlines is found in the contract or is checked case by case with the notary.
What to ask the seller before signing
Ask in writing whether there are pre-emptions or third-party rights on the property. Also check whether the seller has already communicated a sale to others. A clear answer protects you more than a verbal promise.
- Ask whether there is a lease in force and whether it contains a pre-emption.
- Ask whether the seller has received offers or signed preliminary contracts with other people.
- Have the seller's statements on these points included in the compromesso.
A preliminary contract can be registered (trascritto) to protect you from sales to third parties and from later mortgages. This effect ceases one year after the date set for the final contract and in any case after three years from registration (art. 2645-bis of the Civil Code). Ask the notary whether it is worth registering it in your case.
How to check with the notary
The notary checks the registrations and formalities on the property. Ask them expressly whether there are pre-emptions or third-party rights. If a pre-emption was not respected, that right may weigh on your purchase even after signing.
For this reason it is better to check before signing, not after. You can read how the passage at the notary's office works in the guide on the rogito notarile.
Pre-emption and court auctions
In court auctions there is no pre-emption like the one described above. Those who take part make an offer, and if more people bid, a competition takes place. The creditor may ask to keep the property at a price not lower than the base price: this is a different rule, not a pre-emption.
To understand the bidding rules read prezzo base e offerta minima. For the general picture read asta giudiziaria, notarile e fallimentare.
In practice
- Ask the seller, in writing, whether there are pre-emptions or third-party rights on the property.
- If the home is rented, read the lease and look for pre-emption clauses.
- Note the deadline to reply to a pre-emption communication and reply in writing before the deadline.
- Before signing the preliminary contract, have the situation checked by the notary.
Frequently asked questions
Can I waive the pre-emption?
Yes. The person holding the right may decide not to exercise it. It is better to do so in writing, so that there is a record of the choice.
If the final price is lower, does the pre-emption still apply?
As a rule, pre-emption applies on the conditions communicated. If price or payments change, the owner must make a new communication. Ask the notary how to handle your situation.
Does pre-emption block the sale forever?
No, it has precise deadlines. If it is not exercised within the times provided, the sale may go ahead with the third party.
Sources
In the same chapter
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- Who chooses the notary, who pays for themAs a rule, the buyer chooses and pays the notary, that is, the fee and the taxes: how to read the quote.
- Buying a home: every step from search to the notarial deed (rogito)From the viewing to signing at the notary: the six steps to buy a home, with documents, sums to pay and checks before you sign.
- Preliminary contract (compromesso): what it is and what it must containThe preliminary contract (compromesso) is the agreement through which you commit to buying a home. I explain what it is, what it must contain and how much you risk if the sale falls through.
- Right of habitation (diritto di abitazione): what it isThe right of habitation lets you live in someone else's home only with your family: it cannot be sold or rented out. Here is how it works.
- Floor, orientation and lift: what they are worthFloor, orientation and lift change the price of a home. Here is how to assess them, with an example in euros and what to check before making an offer.
General information, not legal or tax advice: the law and the notice of sale prevail.
