Withdrawal from the right of first refusal - is that even possible?

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starting position

The district of Friedrichshain-Kreuzberg has exercised the right of first refusal for five houses in favor of a private institution (a cooperative). However, it has no money, so it is unclear who should pay for it. In case of doubt the district is liable (closer here , here , here and here ).

Its Baustadtrat Florian Schmidt, however, sees no risk. He denied last Thursday that the district was liable for millions of sums in advance: "In the event that a pre-emptive third party can not prove the purchase price, the district's pre-emptive decision would be canceled. This has never happened before. There is therefore no financial risk for the district ", he told the Tagesspiegel.

Is that really so?

Can an exercised right of first refusal by the district be withdrawn?

The German Notary Institute has dealt with the reverse question in February 2019 in a legal opinion (here ). There it was about the case that a so-called negative certificate had been issued, but then should be withdrawn. With the negative certificate, the district declares that it has no right of first refusal. The DNotI now had to check whether the district afterwards think differently and then still can exercise the right of first refusal.

As a result, it evaluated the legitimate expectations of the parties higher than the interest of the community in a Umentscheidung, so that the "resignation of negative clearance" is not possible.

In the present case, in my estimation, the case is even clearer. When the community issues a negative clearance, it does not enter into contractual relations with the participants, but simply issues an administrative act. If, on the other hand, it declares the pre-emption, it becomes the contracting partner of the seller of the property upon receipt of this declaration; it enters into its closed notarial contract instead of the buyer and is therefore responsible for the fulfillment of the contract. That this happens through a sovereign act does not change the fact that the relationship between the district and the seller is private law, that of the notarial contract of sale.

The statement to withdraw from the pre-emption is therefore the same as when someone buys a property and afterwards, after signing with the notary, declares that he does not want that and has changed his mind. Such a statement does not mean that the notary contract is abolished. On the contrary, it is precisely for such a case that one concludes contracts: for the purpose of liability and for clearly regulated provisions.

So the district may be able to lift its administrative act. Nevertheless, he remains the contractual partner of the notary contract into which he has entered.

If he does not fulfill his obligations, eg by not paying the purchase price, the seller can for its part resign and assert damages. Or he can enforce the payment and assert damages for delay. Both are expensive in the end for the district.


It's not as easy as Florian Schmidt imagines. Once a pre-emption has taken place, the contract can not be invalidated unilaterally by the district, the liability can not be unilaterally abolished by the district.

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