2023-12-10 07:00:03
If you are thinking about selling a rental home, you may be wondering What is the right of first refusal and withdrawal? and how it can affect you in this case. As we will see, this is a right that the tenant has to acquire a property on a preferential basis, before the seller decides to put it on the market.
We tell you How does the right of first refusal and withdrawal work? and how exactly it affects you.
The right of first refusal and withdrawal
He right of first refusal and withdrawal It is a right in favor of the tenant that allows him to preferentially acquire the property in which he is living on a rental basis in case its owner wishes to put it up for sale.
It also allows you to claim and take ownership of the property (always paying the corresponding price) in the event that it is sold to a third party without respecting this right of preferential acquisition.
In reality, when we talk about the right of first refusal and withdrawal we are talking about two different rights that complement each other.
What is the right of first refusal?
He right of first refusal It is what allows the tenant to preferentially acquire a property if it is sold. This does not mean that the sales conditions have to be more favorable for him than for a third party: they will be similar and, if an agreement is reached, the sale will take place in his favor.
Otherwise, the property may be put up for sale given that the tenant will have refused to use his right, or will have allowed the legal period to exercise it to pass: the tenant has a period of 30 calendar days to assert his right of score, which will begin to count from the moment the owner notifies you of his intention to sell the home.
What is the right of withdrawal?
He right of withdrawal It affects the owners if they do not fulfill their duties and commit one of these two errors:
In case of Do not offer the home for sale to the tenant on a preferential basisIn case you offer it to them under unfavorable conditions and then modify them in favor of a third party. It is enough that the price offered to the third party is lower than the price offered to the tenant for the latter to be able to exercise its Preferential acquisition right.
In both cases and, once the sale has been made in favor of any person other than the tenant, the latter may claim to acquire the home under the same conditions stipulated in the contract with said third party.
Specifically, article 1521 of the Civil Code tells us that legal withdrawal is the “right to subrogate, with the same conditions stipulated in the contract, instead of that which acquires a thing by purchase or dacion in payment.”
On the tenant’s side, it is important to hurry when making a claim: the right of withdrawal expires after 30 days and this period will begin to run from the moment you are informed of the conditions and price of the sale of the home through of the purchase deeds.
When can the right of first refusal and withdrawal be exercised?
The most frequent case in which the right of first refusal and withdrawal is exercised is that in which there is a rental contract within the framework of the Urban Leases Law (LAU), generating a right in favor of the tenant. Specifically, the right of first refusal and withdrawal in urban leases It is regulated in article 25 of the LAU.
However, there is also a right of first refusal and withdrawal in favor of the co-owner. of a property when another or several co-owners decide to sell it without offering the possibility of acquiring said portions of the property.
It is known as right of first refusal and pro-indiviso withdrawal and thus, according to the Civil Code, the co-owner of a common thing “may use the withdrawal in the case of alienating to a stranger the share of all the other co-owners or any of them.”
The owners of adjacent lands also have the right of withdrawal when it comes to the sale of a rural property. whose area does not exceed one hectare. It is what is known as right of first refusal and withdrawal in adjacent rural properties. The Rural Leases Law (LAR), specifically its article 22.
When does the right of first refusal and withdrawal not apply?
In general, the right of first refusal and withdrawal will only be applicable in the cases mentioned in the previous section. However, it must be taken into account that this right cannot be applied in the event that the urban property is sold jointly with other properties within the same property.
Can the right of first refusal and withdrawal be waived in the rental contract?
it’s possible waive the right of first refusal and withdrawal in the rental contract and, in fact, it is a fairly common clause that protects the owner and that, in many cases, does not affect the tenant, especially if he is not in a position to acquire the home or if he has no interest anyone to do it.
Of course, the buyer of the leased property must respect the current rental contract and its duration. The most common thing is that it takes over the position of the previous owner.
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