What is the right of withdrawal of priority exploitations?
What is the Right of Withdrawal
The right of withdrawal can be defined as the right that by operation of law certain persons have, in certain cases, to acquire the thing that was the subject of a contract sale or grant, subrogating itself in the position of the buyer. It can be said that it is not a subrogation in the strict sense, but a forced sale by the buyer to the retractor.
The retraction of adjoining supposes a limitation imposed on rustic property, motivated by the general superior interest. Bearing in mind that the exercise of this right is an exception to the principle of freedom of contract, it must be subject to rigorous regulation. For this reason, the expiration period for exercising the right is 9 days from registration.
However, in the case of priority exploitations, the requirements, as we will see, are more beneficial for the retractor.
In the event that the adjoining property that wants to retract is a priority exploitation, the provisions of article 27 of Law 19/1995, of July 4, on Farm Modernization. In accordance with this precept, it is required in any case, that it be an adjoining that has the condition of priority exploitation, and that the sale of the farm has an area greater than double the minimum cultivation unit.
This doctrine of the TS imposes a restrictive treatment of the regulation of the right of withdrawal, from which it can be inferred that, faced with the decision to opt for one or another position in the interpretation of the provision, the court should have opted for the most favorable option for the buyer of the property.
Restriction of freedom of contract
The moment to take into account to define the rights and obligations that derive from the retraction is the sale or dation in payment to the third party defendant. This date is the one that has to be taken into consideration to see if the exploitation was classified as a priority for the purposes of the retraction. Taking into account that this is a limitation to the freedom of contracting, it is required that the exploitation have the administrative qualification granted by the competent body after accreditation of the established requirements, having accessed the General Catalog of Priority Exploitations created in the Ministry of Agriculture, Fisheries and Food, as ordered by the Supreme Court 94/2008 of February 4.
Deadline for the exercise
The term for the exercise of this right is one year, to be computed from the registration in the Land Registry, unless the owners of the farms are duly notified beforehand adjoining the sale of the farm, in which case the term will be 60 days from the notification.
In the event that it does not meet the imperative requirement of being a priority exploitation, the adjoining may exercise the legal retraction in the event that the plot has a capacity of less than one hectare, and in any case within 9 days from the registration.
It may interest you: “Department specialized in Agrarian Law ”