In its pre-Christmas judgment 26 Cdo 2923/2022, the Supreme Court again clarified somewhat more clearly the nature of the pre-emption right to a unit under article 1187 of Act No. 89/2012 Coll., the Civil Code (CC). Previous case law has already commented on this institute several times and shaped its form to the general regulation of the pre-emption right from article 2140 et subs. For example, in Decision No. 26 Cdo 3862/2015, the Supreme Court ruled that in the event of a violation of the pre-emptive right to a unit by the seller, the entitled person may assert his rights by defending himself according to the general provisions of article 2144 of the Civil Code. This means that if the existing tenant of the newly created unit is not made an offer to purchase at all and the unit is sold to a third party, the tenant may seek to transfer the unit from the new owner to himself.

In the present case, the judgment in question opted for an interpretation in compliance with the meaning of the law, which it preferred to excessive formalism. The plaintiff was a tenant in a unit created by the division of a house and land. Under the law, she was offered to buy the unit for a set price. The plaintiff did not agree to the price and there was no agreement in subsequent correspondence. The original owner therefore sold the apartment to the defendants for the price, at which he offered it to the plaintiff. She then began to demand the purchase of the unit only after the defendants gave her notice of termination of the lease after nearly one year. The plaintiff argued that the offer to purchase was not made to her according to the statutory provision in article 2140 et subs., because she was not presented with the purchase agreement before it was entered into with the buyers. She therefore sought in court to replace the defendants’ manifestation of intent to enter into a contract with her for the transfer of the unit. 

The Supreme Court did not accept the plaintiff’s argument and found the action of the original owner sufficient. He made the offer and completed the sale at the same price, at which he offered it to the plaintiff, at a time when the plaintiff’s deadline for accepting the offer had already expired. According to the court, the purpose of article 1187 CC is not profit, but to satisfy the housing needs of individuals, who have been long-term tenants of the former rental apartments. The exact procedure under the general pre-emption rules does not make sense, if the offer were made only at the moment when the contract with the purchasers is about to be concluded. The mere requirement of a six-month period for the current tenant would very likely have discouraged potential buyers. The plaintiff had enough time to express her interest in the unit.

Author: Veronika Odrobinová, Olga Králíčková