Back Preemptive tenants do not have to pay a higher price

The right of first refusal

If the apartments in an apartment building are converted into condominiums in order to then resell the apartments individually, the tenants living there have a statutory right of first refusal according to § 577 BGB.

This means that the apartments must first be offered to the tenants. The tenants can then wait with their purchase decision until a notarial purchase contract has been signed with another interested party. The tenants can then request that the contract be concluded with them on the terms specified in the notarial deed of sale. So you have the right to enter into the negotiated purchase contract yourself.

Same purchase price for all prospective buyers

This happened in a Berlin apartment building where the renting owner had divided the house into residential property in 2015. One tenant made use of her right of first refusal and entered into the purchase agreement that had already been negotiated. However, she only paid the purchase price conditionally, since the other buyer had received a discount of 10% due to the existing lease (with her) and the associated loss in value. However, the preemptive tenant should not benefit from this discount. The tenant then sued for reimbursement of the overpaid purchase price.

The Federal Court of Justice agreed. Conversely, the regulation means that the tenant does not receive a discount due to the no longer existing tenancy. However, this violates the prohibition on concluding a contract at the expense of third parties. Accordingly, an agreement between two people intended to disadvantage another person has no validity. As a result, the tenant accepted the same conditions as the prospective buyer before her and received 10% of the purchase price back.

MWW right of first refusal tenants
by Dagmar Klemig
27 / October / 2022
For tenants, right of first refusal, home ownership

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