Pre-emptive right of the municipality; application for a negative certificate

The municipality has a right of first refusal when purchasing land under certain conditions. The right of first refusal may only be exercised by the municipality if this is justified in the public interest. It may also do so in favor of third parties.

The land registry may only enter the buyer as the owner in the land register for purchase contracts if it has proof that the right of first refusal has not been exercised or does not exist.

With the negative certificate, the municipality confirms that it

• has no right of first refusal for the property or
• does not exercise this right.

The application is usually submitted by the notary's office that notarizes the purchase contract.

A property is purchased and there is a purchase agreement for a property.

Among other things, the municipality has a right of first refusal when purchasing a plot of land

• within the scope of a development plan, insofar as it concerns areas for which a use for public purposes or for areas or measures to compensate for interventions within the meaning of the Federal Nature Conservation Act (compensatory measures) are stipulated in the development plan,
• in a reallocation area,
• in a formally defined redevelopment area and urban development area,
• within the scope of a statute to safeguard the implementation of urban redevelopment measures and a conservation statute,
• within the scope of a land-use plan, insofar as it concerns undeveloped land in the outdoor area for which use as a residential building area or residential area is shown in the land-use plan,
• in areas that can be developed predominantly with residential buildings in accordance with Section 30, 33 or 34 (2) of the German Building Code, insofar as the plots are undeveloped, and
• in an area that is to be kept free of development for the purpose of preventive flood protection, in particular in flood plains,
• In addition, a right of first refusal can be established by the municipality in the following cases:
  • Within the scope of a development plan at
    undeveloped properties,
  • In areas in which it is considering urban development measures
    to ensure orderly
    urban development,
  • establish their right of first refusal by statute for undeveloped or derelict properties within the scope of a development plan or for built-up districts (§ 34) if
    • these can be developed primarily with residential buildings and
    • it is an area with a tight housing market as defined in Section 201a.

If there is no pre-emptive right or if it is not exercised, the municipality must issue a negative certificate immediately upon request.

If the municipality wishes to exercise its right of first refusal, it must notify the parties involved in writing within three months. The three-month period begins as soon as the municipality has been presented with the complete purchase agreement and has been notified that the purchase agreement is legally valid.

• §§ Sections 24 - 28 of the German Building Code (BauGB)

Lawsuit

Application for a court decision pursuant to Section 217 BauGB

The seller must inform the municipality of the content of the purchase agreement.

In most cases, the certifying notary's office takes care of this and applies in writing to the municipality in which the property is located for a negative certificate to be issued.

If there is no pre-emptive right or if it is not exercised, the municipality will issue a negative certificate. If the municipality wishes to exercise its pre-emptive right, it will issue a corresponding notice to the seller.