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Case:
J.C.P.1999, N., 1764 Case Commune de Houdan c. Mme Lhemery
Date:
27 October 1999
Translated by:
Tony Weir
Copyright:
Professor Sir B. S. Markesinis

Article L. 213-1(1) of the Urban Building Code provides that “A right of pre-emption exists over any building or holding of shares conferring a right to the ownership or enjoyment of a building or part of a building, whether already built or under construction, which is voluntarily transferred, whether for consideration or otherwise” and the following subsection provides that “The right of pre-emption attaches equally to the transfer of undivided rights relating to a building or part of a building, already built or under construction, unless they are transferred to another co-owner, and the same is true of transfers of percentage interests in premises yet to be built”; the third subsection provides that “In the case of an auction required by law or regulation, the body with the right of pre-emption is substituted for the successful bidder on payment of the amount of his bid …

Given that it follows from the very terms of these provisions, as held by the decision under attack, that the forced sale of a building in execution of a judgment cannot be seen as a voluntary transfer in the sense of article L.213-1(1) cited above, and that the third subsection relates only to the way the right of pre-emption is to be exercised in the circumstances stated and does not seek to, and does not, extend the scope of the right of pre-emption as defined in the first subsection;

Given that contrary to the arguments of the applicant the administrative court of appeal of Paris committed no error of law either in applying these provisions without reference to the Parliamentary debates which preceded their adoption or in annulling the decision of the municipal council of Houdan which had purported to exercise a right of pre-emption in substitution to the successful bidder for a building auctioned in execution of a judgment, so that the Commune of Houdan is not qualified to seek the annulment of that decision….

 

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