A mayor who used his rights of pre-emption to stop foreigners buying property has been let off on a technicality.

Alain Tuduri is the mayor of the commune of Pont-de-Chéruy in Isère, a department of the Rhône-Alpes region.

He has been at the centre of a major legal battle that has been raging for over a decade.

Although his substantive guilt in the matter seems to have been unequivocally determined he has refused to accept the judgement due mainly to the severity of the sentence imposed upon him.

'I consider that it is a decision particularly severe. When one has worked 21 years for a town, one may ask questions', said the mayor.

A policy inquiry carried in 2004 established that between 1998 and 2003, 1.5% of purchasers with names of European origin were subject to pre-emption, whereas 53% of those purchasers with names of North African or Turkish origin were advised that the council proposed to pre-empt on the purchase.

As part of the sale process in France, a local council is required to be notified by sellers/notaires about a prospective sale, when they are given two months to decide whether they wish to use their legal right to buy the property.

The droit de pré-emption is one that is normally used very infrequently and then mainly in connection with town centre improvement schemes. In the cases before the court, although the mayor claimed pre-emption on precisely these grounds, there were no plans in existence for any such schemes.

Not only did he seek to pre-empt, but he did so for a price that was substantially below that stated in the transaction, in one case proposing €150,000 for a property that was being sold for €600,000.

It also seems the mayor regularly put pressure on the sellers, notaires and estate agents to prevent sales to foreign nationals, in some cases actually telephoning them urging them not to sell, and proposing another buyer in the place of a prospective foreign purchaser.

The response of the mayor became so commonplace that in one case a notaire advised a couple who were buying to use the French name of the wife on the compromis de vente, rather than the North African name of her husband.

Legal Rulings

As a result of the evidence obtained, in October 2009, the mayor was given a suspended 18 month sentence by the local criminal court in Isère for having used his right of pre-emption in an abusive, discriminatory manner.

The culpability of the mayor was upheld by the court of appeal in 2010, albeit that the court changed the sentence to a loss of rights to exercise public office for a period of 5 years.

Unwilling to accept the judgement (which would then throw him out of office) the mayor protested to the French Supreme Court, the Cour de Cassation.

In June, in a decision that surprised many commentators, the court overturned the earlier rulings arguing that ‘the exercise of the right of pre-emption, even if it was abusive, did not constitute a refusal of a right accorded by the law.’

In effect, what the court said was that only the seller of the property could be held liable for any discriminatory refusal to allow someone to purchase a property; the use of the right of pre-emption, although leading inexorably to denying someone the ability to purchase a property, was not by itself a result of this decision.

The case was referred back to the appeal court, for further consideration.

Alain Tuduri remains mayor of Pont-de-Chéruy.