Right of pre-emption when selling a house: what you need to consider

What is the right of pre-emption?

The right of pre-emption gives you the chance to purchase a property (or piece of land) before it becomes available to other buyers. It is often used and is based on contractual or legal provisions.

In order to exercise your right of pre-emption, a purchase offer must first be submitted by another party, which gives you the opportunity to make the purchase under the same conditions. The seller is obliged to inform you of this offer and to give you a deadline to make a decision. You thereby have the chance to purchase the property or land before it goes to another prospective buyer.

Types of right of pre-emption

Contractual right of pre-emption

If you reach an explicit agreement, you will have a contractual right of pre-emption. This gives you the chance to purchase the property under certain conditions before it is offered to others. It is important that you record the conditions such as price, deadlines and procedure in writing.

Statutory right of pre-emption

The statutory right of pre-emption is based on specific laws that may be relevant to you in certain cases. It is used in special situations, for example with agricultural land, in development areas or when it serves the common good, such as the preservation of green spaces, urban development or social housing policy.

In this case, there is no pre-emption

You do not have a right of pre-emption if you are given property as a gift or assume ownership of property from heirs within a community of heirs. There is no right of pre-emption here because it is a sale between family members.

Legal bases

The provisions on the right of pre-emption are set out in the Swiss Civil Code (Article 681 et seq. of the Swiss Civil Code) and the Swiss Code of Obligations (Article 216 et seq. of the Swiss Code of Obligations). The exercise, duration and expiry are defined in detail in these.

The Swiss Civil Code (Article 681 et seq. of the Swiss Civil Code)

The Swiss Civil Code determines the conditions of the right of pre-emption in real estate. This right allows a person or entity to purchase a property under the same conditions as a third party if an offer to sell exists. The use of this right is subject to a specific period of time and includes provisions concerning the written form, transferability and the consequences of non-use.

Swiss Code of Obligations (Article 216 et seq. of the Swiss Code of Obligations)

Articles 216 et seq. of the Swiss Code of Obligations set out in detail the rules and obligations regarding the right of pre-emption. This includes the procedure, the measures required for the intention to sell to third parties, the obligation to provide information and the need to expressly note the right of pre-emption in the contract. In this way, the Swiss Code of Obligations ensures transparent handling and legal certainty for all parties involved.

Limited vs. unlimited right of pre-emption

Limited right of pre-emption: applicable only under specific conditions or within a certain time frame. For example, it can only be used during a special sale or within a specified period of time.

Unlimited right of pre-emption: applies to all future sales, as long as the requirements are met by the beneficiary. It can also be transferred to all subsequent owners of the property.

How is a right of pre-emption legally justified?

The right of pre-emption has its origins in the principle that ownership entails obligations. If you own a property, you have a duty to protect your neighbours and the municipality from damage or disruption. The right of pre-emption makes it possible to meet this obligation through the preferred purchase of the property.

Selling a house with a right of pre-emption in practice

Decision to sell a property

When selling a property that has a right of pre-emption, you should carefully review the terms, as this can limit the selection of potential buyers and slow down the sale process.

Notification to the beneficiary

The sellers are obliged to notify the beneficiaries of the right of pre-emption about a specific offer to sell immediately and in the prescribed form. They must clearly set out the price, the deadline and all the details needed to make an informed decision.

Exercising the right of pre-emption

As soon as the notification is submitted, you have a specific period of time in which to exercise the right of pre-emption. If you exercise this right, you will enter into the purchase contract under the same conditions as for the original buyer. If the right of pre-emption is not exercised, the selling party is entitled to sell the property to other interested parties.

Signing the contract

If the right of pre-emption is exercised, the purchase contract is signed, including all the conditions, which finalises the sale of the property. If the right of pre-emption is not exercised, the selling party is entitled to sell the property to third parties under the same conditions.

Frequently asked questions about the right of pre-emption

Can a right of pre-emption be inherited or transferred?

Yes, under certain circumstances it is possible to transfer the right of pre-emption. It can either be passed on through inheritance or transferred to others during the lifetime of the owner by means of clear agreements. If the original rights holder dies, the right will pass to their heirs, unless otherwise stipulated by contract or law. Transfer to third parties during the lifetime of the rights holder requires an explicit agreement between the parties involved.

How long is the right of pre-emption valid?

A statutory right of pre-emption generally lasts for two years, while a contractual right of pre-emption can be longer or shorter, depending on the agreement.

How is the price determined if a right of pre-emption is exercised?

If the right of pre-emption is exercised, the price is usually based on the offer of a third party, under the terms of which the beneficiary must buy the property. In the absence of such an offer, the price will be determined either by agreement or by an independent valuation process.

What deadlines must be observed when exercising a right of pre-emption?

The effectiveness of a right of pre-emption depends heavily on compliance with certain deadlines. While statutory pre-emption rights generally have an exercise period of three months, the periods for contractually agreed pre-emption rights can vary and often range from one month to several months. It is very important to respect these periods, as failure to exercise the right within the prescribed period will result in the loss of the right in most cases.

Can a right of pre-emption be excluded?

Yes, the right of pre-emption can be contractually excluded under certain circumstances. However, in most cases such exclusions are invalid or ineffective if they result in excessive disadvantages.