Last Updated on June 28, 2021 by LawEuro
German Civil Code (BGB) German law
Division 5
Right of preemption
Section 1094
Statutory contents of the real right of preemption
(1) A plot of land may be encumbered in such a manner that the person in whose favour the encumbrance is created has a right of preemption against the owner.
(2) The right of preemption may also be created in favour of the current owner of another plot of land.
Section 1095
Encumbrance of a fraction
A fraction of a plot of land may be encumbered with a right of preemption only if it consists of the share of a co-owner.
Section 1096
Application to accessories
The right of preemption may be extended to the accessories that are sold with the plot of land. In case of doubt, it must be presumed that the right of preemption is to extend to these accessories.
Section 1097
Creation for one or more cases of sale
The right of preemption is restricted to the case of sale by an owner who owns the plot of land at the time of the creation, or by his heir; however, it may also be created for more than one or for all cases of sale.
Section 1098
Effect of a right of preemption
(1) The legal relationship between the person entitled and the person obliged is governed by the provisions of sections 463 to 473. The right of preemption may also be exercised if the plot of land is sold by the administrator in insolvency proceedings by private agreement.
(2) In relation to third parties, the right of preemption has the effect of a priority notice entered to secure the claim arising from the exercise of the right to transfer ownership.
(3) Where a legal person or a partnership having legal personality is entitled to a right of preemption created under section 1094 (1), the provisions of sections 1059a to 1059d apply with the necessary modifications to the transfer of the right, if there is no agreement on its transferability.
Section 1099
Notifications
(1) If a third person gains ownership of the plot of land, he may, in the same way as the person obliged, notify the person entitled of the contents of the purchase agreement with the effect specified in section 469 (2).
(2) The person obliged must notify the new owner as soon as the exercise of the right of preemption takes place or is excluded.
Section 1100
Rights of the purchaser
The new owner may, if he is the purchaser or a successor in title of the purchaser, refuse to give his approval to the registration of the person entitled as the owner and to the delivery of the plot of land until the purchase price agreed between the person obliged and the purchaser, insofar as it is settled, is paid to him. If the person entitled achieves registration as owner, the former owner may demand from him the payment of the settled purchase price in return for the delivery of the plot of land.
Section 1101
Release of the person entitled
To the extent that the person entitled is required in accordance with section 1100 to pay the purchase price to the purchaser or his successor in title, he is released from the obligation to pay the purchase price owed under the preemption.
Section 1102
Release of the purchaser
If the purchaser or his successor in title, as a result of the exercise of the right of preemption, loses ownership, the purchaser shall, to the extent that the purchase price owed by him has not yet been settled, be released from his obligation; he may not demand the return of the settled purchase price.
Section 1103
Real and personal right of preemption
(1) A right of preemption existing in favour of the current owner of a plot of land may not be separated from the ownership of this plot of land.
(2) A right of preemption existing in favour of a specific person may not be connected with the ownership of a plot of land.
Section 1104
Exclusion of unknown entitled persons
(1) Where the person entitled is unknown, his right may be excluded by way of a public notice procedure if the requirements for the exclusion of a mortgage creditor specified in section 1170 are satisfied. The right of preemption is extinguished when the exclusory order comes into legal effect.
(2) These provisions do not apply to a right of preemption which exists in favour of the current owner of a plot of land.
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