Your project to buy your farm or wine estate is progressing well. You are about to sign the compromise but you have been told that the SAFER is going to pre-empt and prevent your project from going ahead. Don't panic! This risk is not so high and you probably have solutions to put in place
Let's start again from the beginning to understand how the right of pre-emption and the SAFER work.
The right of pre-emption is a right granted to a body, usually a public body, to buy a property (to substitute itself) in place of the buyer initially provided for in the contract. Municipalities very often have a right of pre-emption on real estate sales, which allows them to control transactions in their municipalities.
The SAFER is a private organisation, but it has a public service mission by law. SAFER is organised into companies in each French region.
SAFER has a right of pre-emption which was originally granted to avoid speculation on agricultural land and to limit the price of agricultural land.
This right of pre-emption applies only to agricultural property: land, agricultural buildings, houses in agricultural areas, etc.
Each regional SAFER has other tools at its disposal to carry out its mission, but the right of pre-emption is the one that gives rise to the most concern.
For more details, you can consult the presentation made by the SAFER itself.
Lorsqu’un compromis de vente est signé pour des immeubles agricoles, le notaire va alors adresser une notification à la SAFER précisant les modalités de la vente : le vendeur, l’acheteur, la désignation des biens vendus, le prix de vente, …
Elle dispose alors d’un délai de 2 mois pour agir. Si au terme des 2 mois, il ne s’est rien passé, ceci signifie que la SAFER ne préempte pas.
Pendant ces 2 mois, la SAFER va instruire le dossier. Elle le transmet au conseiller foncier local qui examinera le projet de vente, regardera les prix pratiqués au regard des usages, regardera si d’autres acquéreurs peuvent être intéressés, s’ils sont prioritaires, les contactera …. Après examen, le conseiller s’il pense préempter, soumet le dossier à une Comité Technique qui prendra alors la décision de préempter ou non.
Yes, when SAFER pre-empts, it does not do so against a candidate but to favour another priority candidate.
One of SAFER's missions is to encourage the installation of young farmers and the transfer of farms.
The orders of priority are defined by the law and by regional regulations. Indeed, each region determines a Regional Agricultural Holdings Master Plan. It is this document that determines the priorities of the Contrôle des Structures. The SAFER pre-empts if it considers that a priority purchaser should acquire the property rather than another.
Once the SAFER has notified the notary of its decision to pre-empt, it will then look for candidates to allocate the property. It officially advertises the property. Any interested party can apply by completing a motivation file.
The land technician in charge of the file will then summarise the applications, review the financing arrangements and forward the file to a Technical Committee which will give an opinion on the handover. This decision is then forwarded to the Board of Directors, which makes a decision.
The Government Commissioners, representatives of the State, then validate the decisions taken by the Board of Directors. The Government Commissioners are representatives of the Ministries of Agriculture and Finance.
It should be noted that when the seller is notified of the pre-emption decision, he cannot withdraw his property from the sale. He is then obliged to continue with the sale but to the benefit of the SAFER
Yes, pre-emptive and retrocession decisions are administrative decisions that can be subject to legal appeal.
In fact, there are many cases of litigation against SAFER decisions, with favourable or unfavourable outcomes.
The Technical Committee of SAFER is made up of representatives of different organisations represented in 3 different colleges:
Agricultural organisations: Chamber of Agriculture, representative agricultural unions (FDSEA, Jeunes Agriculteurs, Confédération Paysanne, Coordination Rurale, etc.), banks and mutual insurance companies
Public authorities: regional and departmental councils, associations of mayors, etc.
Others: payment service agency, environmental protection associations, landowners' and forestry unions, chamber of notaries, etc.
The presence of agricultural representatives within SAFER gives the land technicians an important relay of information in the countryside.
When the SAFER considers that a transfer is being made at an abnormal price in relation to the market price, it may decide to pre-empt with a price revision.
In practice, it notifies the notary that it wishes to pre-empt but at a lower price than that provided for in the sales agreement. It must justify its decision by proving that the price envisaged is higher than the average prices charged.
But it cannot impose this price on the seller. The seller then has 6 months to make a decision. He has 2 options:
The SAFER is remunerated by fees that increase the purchase price for the beneficiary of the retrocession.
However, to avoid increasing the bill too much, the operations carried out by the SAAFERs are exempt from registration fees.
According to SAFER figures, in 2020, SAFER carried out 1,240 pre-emptions, i.e. only 0.4% of the 322,400 sales projects notified to it! The risk of a pre-emption is therefore actually very low.
If you are buying a farm, an equestrian property, a vineyard, etc., which includes buildings, land, a house, etc., the risk of pre-emption is low because the SAFER will find it difficult to find a competing buyer with priority.
If your purchase only concerns a few hectares of land, the risk of pre-emption will be greater because many neighbouring farmers are likely to be interested in these plots.
One of the best ways to avoid SAFER's pre-emption is to know the local context. Contact the SAFER, introduce yourself and explain your project. The local technician may be able to show you how to set up your project and gain a place in the order of priorities.
In fact, it is often the SAFER land technician who contacts the buyer of a property even before notification to inform him or her that the SAFER is considering a pre-emption on the file.
You can also contact your potential local competitors and try to find an arrangement so that they do not apply.
If you miss a project, you will most likely have new opportunities in the coming months and years. Indeed, many farmers are going to stop farming in the coming years, freeing up many farms and plots of land.
