Everything enacted by the legislator and mentioned in the texts of the law came to protect a right and to achieve a personal or societal goal that benefits either of them, and that the exception that contradicts the principle behind it are loopholes that the law did not leave that cause harm to its owner without control, and from this standpoint an exceptional right was regulated in the texts of the law It is contrary to the principle of freedom of contracting with the motive of protecting the neighbor from bad neighbours, which is what is called the right of pre-emption and priority, which imposes a restriction on the freedom of disposal and ownership to pay off the harms of the unfamiliar neighbour, by giving the preemptor the right to take the mortgaged property against the buyer, including the price and expenses he has made.
In this article, the rights of pre-emption and priority will be discussed in some detail, and a quick passage on the most important practical procedures in them.
The legal regulation of the right of pre-emption and the right of priority:
First of all, it must be noted that the provisions of pre-emption and priority do not apply except to lands on which settlement works have been carried out in accordance with the Land and Water Settlement Law No. (40) of 1952 AD, and there is no scope for applying these provisions to lands not covered by settlement works. The legal provisions that dealt with the right of pre-emption were organized in the Journal of Judicial Provisions, while the right of priority was regulated by its provisions in the Ottoman Land Law No. 1858 AD, and both were regulated in the Amending Law of Provisions Related to Immovable Funds No. (51) of 1958 amended by the Temporary Law No. (98) of 1966 AD in Article two of it.
The difference between the right of pre-emption and the right of priority:
Despite the similarity in the procedures and considering both of them a restricted right to dispose of that acquires ownership in registered real estate, there are many differences between them, which we will discuss.
- The right of pre-emption is established in the owned lands that fall within the borders of the municipalities. As for the right of priority, it is established in the princely lands that belong to the state and that lie outside the borders of the municipalities. To determine the type of land starting. Here I would like to point out that the criterion for determining the type of land, whether it is owned or owned, is not what is written on the registration deed, but rather what is written on the explanations of the regulatory authority issued by the municipalities, given that the Registration and Survey Department is an executive body that carries out administrative procedures to implement the content of the transfer decision. For what was stated in the legal text and not at the time of implementation.
- Likewise, the right of pre-emption arises first for the partner in the land, secondly for the mixed, third for the adjacent neighbor, respectively, while in the right of priority, it arises instead of the last for the needy among the people of the village within whose scope the land is located.
- There is also another difference in that the request for the right of pre-emption is based on the price and expenses that have been paid by the purchaser, and what is meant by the price is the full named price mentioned in the official sale contract unless its imagery is challenged, while in the right of priority the applicant acquires the right to dispose of the sold lands for a similar consideration, i.e. equal to its price The time of the request, which is determined by a specialized expert who appreciates its value.
- Likewise, the right of pre-emption is established by selling, while priority is established by a gift in addition to the sale, as it acquires the right to dispose or benefit, in contrast to the pre-emption that earns ownership.
- Finally, the right of pre-emption is not inherited unless a court ruling is issued, while the right of priority is a right that is inherited at any stage of the lawsuit.
Claiming the right of pre-emption and the right of priority:
The right of pre-emption and priority is not proven except by the correct and irrevocable sale contract as stated in the text of Article (1021) of the Judicial Judgments Code, and in confirmation of what was stated in Paragraph (a) of the first clause of Article Two of Law No. (51) of 1958 AD amending the provisions related to funds The right of priority or pre-emption under any of the aforementioned articles shall not be exercised by any person after the lapse of six months from the date of the final emptiness or sale in the registration departments.
The deadline for claiming the right of pre-emption and priority shall be within 6 months from the date of the sale or the absolute vacancy in the registration departments, as stated in the text of the above law. Appointments so that the first day is not counted from the appointment. Also, there is another period for pre-emption estimated at a month from the date of certain knowledge of the sale mentioned in the Journal of Judicial Rulings Article (1034) and certain knowledge is knowledge of the sale contract, i.e. knowledge of the name of the buyer and seller, the details of the sale and the amount of the price.
Characteristics of the right of pre-emption and the right of priority:
1- Vulnerability to forfeiture: The right of pre-emption and priority does not arise except after the sale or the final void. Likewise, the waiver of the pre-emption right by the pre-emptor and the priority does not take place except after the explicit or implied sale contract, and if the sold item was offered to the pre-emptor before the sale contract, and the latter’s refusal to purchase does not forfeit his right to claim it, since It is not a waiver of a right that does not exist.
2- Indivisibility: The preemptor must request preemption in all of the real estate, so that he may not claim preemption in some of the sold and not others, just as it is not permissible for him, in the event of selling the property to several buyers, to take from some of them without others.
3- His ability to inherit: It was previously mentioned among the differences between the two rights, so that preemption is not inherited unless a final judgment is issued by the court for ownership, and this is stated in the text of Article 1083 ″If the preemptor dies after requesting permissibility and requesting a report and before he is the owner of the preemption by surrendering it by mutual consent with the buyer Or by virtue of the ruling, the right of pre-emption was not transferred to his heirs. While the priority right is transferred to the heirs, whether before or after a court ruling is issued.
Cases in which preemption is not permissible:
- If the sale or vacuum occurred between ascendants and descendants, spouses, or relatives up to the fourth degree, or between in-laws up to the second degree.
- If the sale or vacancy took place by public auction.
- If the sale or vacancy makes the property a place of worship, or attached to the place of worship.
- The state owns real estate in the public interest.
The most prominent procedures for filing a right of pre-emption lawsuit and a right of priority lawsuit:
- Submitting a request to the president of the court in which the property required to be owned by preemption is located, directed to the Land Department to obtain a copy of the registration deed for the preempted land and a copy of the sale contract and the sale request.
- Submitting what guarantees the buyer his right when he is judged to own the property by pre-emption, so he submits either a certified bank check deposited in the court’s fund, or a bank guarantee, or the deposit of the price named in the contract. Depositing the price: The time of depositing the price in the court’s box was mentioned in Paragraph (b) of the first item of the text of Article Two of Law No. 51 of 1958 amending the provisions related to immovable funds, which states that “the claimant of pre-emption and priority when submitting his claim must deposit a box The court is the price mentioned in the sale contract, or he submits a bank guarantee of its amount. For the real price or the estimated equivalent allowance. Therefore, the preemptor must submit the guarantee or deposit the price when submitting his statement of claim at the registry of the competent court while retaining his right to recover what exceeds the real price of the sale, but what if the price of the sale was higher than the price deposited in the court fund or provided with a guarantee? Here, the claimant must deposit the remaining amount with the court’s fund within fifteen days from the date the judgment becomes final, otherwise his right to implement the judgment will be forfeited, based on what was stated in the second paragraph of Article Two of the Amending Law No. 51 of 1958 regarding provisions relating to immovable property.
- Submitting the necessary evidence that supports the preemptor’s eligibility in the claim, so that he submits the registration deed to prove ownership and the sale contract showing the names of the buyer and seller (the defendants in the pre-emption lawsuit), the price of the sale, the date of registration, disclosure and experience in the case of priority action, and the arrival of receipts to deposit the price in the court’s fund. And other evidence according to the circumstances of the case.
The jurisdiction of the court in the case of pre-emption and priority and the implementation of the judgment issued in it:
Starting with regard to the jurisdiction of the court that decides on this type of lawsuit, it is held for the court whose jurisdiction falls within the real estate subject matter of the lawsuit, and it is considered by the court of first instance or conciliation according to its value in accordance with the rules of value jurisdiction. Also, the judgment issued in the pre-emption lawsuit must be executed by the preemptive party within 3 months from the date the judgment acquires the peremptory degree, otherwise the judgment is considered as if it did not exist, and it is not permissible to file a lawsuit to claim it again.
God grants success