What is hereditary pre-emption
The hereditary pre-emption is a legal institution governed by the article 732 Civil Code. It consists of the right to be preferred over a third party in the event that a coerede want to sell its share of the hereditary estate (or part of it) to a person not involved in the community of inheritance.
We are facing a case in which the law wants to attribute a real preference to some subjects over others.
If the formalities provided for by the law that we will highlight are not respected, the legal remedy of the retracted succession.
The purpose of the hereditary pre-emption
The hereditary pre-emption it is one of the most important legal pre-emptions, as it is established by the law itself for the benefit of certain subjects.
It is about the co-heirs in case of assignment of a share of inheritance.
This means that the person who together with others has inherited and who intends to sell his share will have to prefer, all things being equal, the co-heirs over the third stranger.
The objective of the legislator is therefore to ensure that the hereditary axis is not dispersed for the benefit of strangers to the communion.
Requirements for the hereditary pre-emption
For the existence of the right of pre-emption, the presence of a series of conditions:
- The intention on the part of the co-heir of want to alienate a share or part of it to a stranger to the participants in the community of inheritance;
- the notification from the alienating co-heir to the other co-heirs of the alienation proposal;
- the exercise by the co-heirs of the right of first refusal which must be asserted within the term of 2 months from the communication, under penalty of forfeiture.
When there is no pre-emption right
The right referred to in Article 732 of the Civil Code applies only to cases of hereditary community. No right of pre-emption in the event that there is a voluntarily constituted communion following an act between living beings. The same applies if, due to a marriage, the community of property regime has been opted for.
It should also be remembered that on the basis of the dominant jurisprudential orientation, hereditary pre-emption is allowed only for alienations to onerous title. The following will therefore be excluded from the relative regulations of the civil code:
- deeds free of charge such as a donation of one’s share of the inheritance;
- deeds that do not provide for the payment of a fee, such as an exchange.
Likewise, there will be no right of pre-emption if the communion is constituted through a legacy. In the event that the right of pre-emption is conferred by the will of the testator, we are faced with a case of voluntary pre-emption that produces different effects compared to the hereditary pre-emption.
If the co-heir wants to sell his share, he is obliged to notification to the other co-heirs there alienation proposal, that is, he will have to express his will to sell the share, indicating under what conditions.
The sale proposal is a real contractual proposal pursuant to article 1326 of the civil code and must contain an indication of the sale price.
The legal pre-emption does not operate in the case in which the individual asset is sold but only in the case of alienation of the share of the inheritance. There is no legal pre-emption case even if a legacy is established by will and the co-heir intends to alienate a share.
How to exercise the right of first refusal
Once the notification of the sale proposal has been received, the co-heirs involved will be able to exercise the right of first refusal. They will have to meet the deadline of 2 months from the last notification, under penalty of forfeiture. Notification can be made by letter registered mail with acknowledgment of receipt or pec.
This means that in case of refusal or lack of response, they will lose the right to be preferred over the third party purchaser of the share. In this case the sale in favor of the third party will be considered valid and effective.
In case of acceptance, the co-heir must go to the notary since it is in front of him that the possible acceptance of the proposal must take place.
What is the succession retraction
What happens if the alienating co-heir does not notify the sale proposal, that is, decides to proceed with the sale without dare communication to the other co-heirs?
The latter will be granted the remedy of retracted succession, or the right to redeem the share from the third purchaser and any subsequent successor in title.
The co-heir injured for violation of the right of pre-emption is recognized by the law a power of rights to exclude the third buyer.
This right is also recognized when the proposal is notified but without the conditions such as the price being reported. In this case, any sale must be deemed to have taken place illegally.
Characteristics of the succession retraction
What does the retracted succession?
Thanks to this legal institution, the injured co-heir takes over the position of the third buyer. The take over it happens from the beginning and in fact it produces retroactive effects ex tunc and involves the payment of the same amount that was paid for the purchase of the share.
An act of re-transfer of the inheritance is therefore not necessary.
The share sold is purchased under the same conditions agreed with the third party.
A condition for being able to exercise this right is the continuation of the hereditary community. In the event that the hereditary division has taken place, the aforementioned form of protection cannot be used.
The right of inheritance retraction must be exercised before the notary even without the consent of the third-party purchaser from whom the share is subtracted.
Voluntary pre-emption and hereditary pre-emption: differences
Speaking of pre-emption in a generic sense, we refer to a privileged situation in which one subject finds himself over another.
The pre-emption may not only be legal but also voluntary and in this case the remedy of the inheritance portrait does not follow.
If it is voluntary in nature, that is, it has been recognized by the parties by agreement, in the event of a violation, only compensation for damage will be obtained.
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