Following their divorce in 2016, a married couple divided their house into condominiums. Of the three flats, the wife received one and the husband kept two. They granted each other rights of first refusal in rem for the respective flats.
In 2019, the husband sold one of his flats, which was already rented out at the time of the division into condominiums. His ex wife exercised her right of first refusal. The tenant also wanted to buy the flat and exercised his pre-emptive right.
In October 2019, the owner and the tenant concluded a notarised contract that regulated the details of the purchase resulting from the pre-emption. The tenant was entered as the owner in the land register. The woman did not want to accept this. She pointed out her right of first refusal. Therefore she demanded the transfer of the ownership of the flat to her.
Her claim was not upheld by either the Regional Court or the Higher Regional Court. Both courts were of the opinion that the tenant's right of first refusal took precedence over the relatives' “arbitrary right of first refusal in rem” if the latter - as in this case - did not yet exist when the flat was transferred to the tenant.
However, the Federal Court of Justice (BGH) took a different view. The supreme court assumed that the ex wife's right of first refusal in rem takes precedence over the tenant's right of first refusal.
Spouses are to be regarded as family members within the meaning of this provision even if they are divorced. Even if it was only asserted after the flat had been transferred to the tenant, the right of first refusal in rem had priority. According to the BGH, the ex husband could have sold the flat directly to his ex wife in accordance with the aforementioned provision without the tenant being entitled to pre-emption.
For this reason, it was not apparent why the tenant's right of first refusal should take precedence over the family member's right of first refusal in rem.
(BGH, judgement of 27.9.2024, V ZR 48/23)