In the event of a change of ownership, a right of first refusal in rem for relatives takes precedence over the tenant's right of first refusal, even if the tenancy existed beforehand. This is the result of a ruling by the Federal Court of Justice (case reference: V ZR 48/23). The right in rem remains in place even after a divorce if the ex-partners had granted each other corresponding rights of first refusal in rem.
In the specific case, the ex-husband had granted the ex-wife a right of first refusal in rem, which remained in place despite the divorce and subsequent letting. Now he wanted to sell his apartment. In addition to his ex-wife, his tenant also wanted to buy the apartment and exercised his right of first refusal. The ex-husband sold the apartment to his tenant. His ex-wife took him to court. With success. The Federal Supreme Court ruled that this right took precedence over the tenant's right of first refusal.
For owners, relatives and tenants, this decision means that the creation of a right of first refusal in rem can play a decisive role. The case law highlights the need to seek legal advice if necessary. In this way, one's own rights and obligations in such complex situations can be better understood.
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