SAFER pre-emption over buildings: agricultural use must be real on the sale date

Article L. 143-1 of the French Rural and Maritime Fishing Code gives SAFER, the agricultural land agency, a pre-emption right on transfers for value of property used for agriculture and undeveloped land intended for agriculture. For buildings, it covers three situations:

Farm buildings which have retained agricultural use on the transfer date.

Residential buildings forming part of an agricultural holding.

Buildings in certain zones (protected agricultural zones, protection perimeters for peri-urban agricultural and natural spaces, or A or N zones under a planning document) which were used for agriculture during the five years preceding the transfer, where pre-emption aims to restore agricultural use.

Woodland and forest plots are in principle excluded, unless sold with other non-wooded plots belonging to the same agricultural holding.

The right also applies to auction sales, including in liquidation proceedings: SAFER then has one month from the auction to replace the successful bidder, without being able to dispute the price.

Farmers placed in liquidation in 2003 saw their property sold at auction in 2016: more than 80 hectares comprising land, a dwelling, outbuildings and coppice woodland. SAFER exercised pre-emption and replaced the successful bidder, who challenged the decision.

The Court of Appeal upheld pre-emption. It found that the house and outbuildings had ceased to be used for agriculture only because activity was forcibly stopped following liquidation, that their designated use had not changed and that they were fully intended to serve an agricultural holding.

The Court of Cassation quashed the ruling for lack of a sufficient legal basis. Reasons based on the absence of a change of designated use could not establish, on the transfer date, either the outbuildings’ agricultural use or the existence of an agricultural holding to which the dwelling and the non-wooded plots sold with the woodland belonged.

In other words, the buildings’ theoretical purpose is insufficient. The court must find actual agricultural use on the sale date, or an agricultural holding to which the property belongs. This requirement also determines whether woodland sold with the land can be pre-empted.

The ruling, published in the Bulletin, provides a strong argument for a displaced buyer where SAFER pre-empts a built property whose agricultural activity ceased long ago. SAFER must demonstrate real agricultural use, or rely on the specific situation of buildings used during the preceding five years.

For sellers and notaries, documenting current and past use of the buildings is useful (invoices, works, planning permissions and declarations that activity has ceased). The description of the property in the notice sent to SAFER matters little: actual use is what counts.