Do you want to sell a share in land, but do not want to lose two months waiting for the other co-owners to respond? The solution is a formal agreement waiving the statutory pre-emption right, which can unblock the whole process immediately.
An agreement whereby a co-owner waives, or undertakes not to exercise, the statutory pre-emption right is a very useful tool in practice — but one that demands a high degree of legal precision. Shortcomings in the use of this tool have introduced a legal defect into many completed property transfers. This has happened chiefly because the text of the agreement was drafted too generally, or attempted to waive the right for the future, which the Slovak Civil Code treats as absolutely invalid.
The legal literature expressly states that a waiver/non-exercise of the statutory pre-emption right is tied to a specific transfer and its terms. If the terms of the transfer change (i.e. the identity of the buyer, the price, or other material terms change), the original waiver does not extend to the amended terms of the transfer.
In its decision II. ÚS 425/2020, the Constitutional Court of the Slovak Republic declared the well-known rule that a breach of the statutory pre-emption right does not render a legal act absolutely invalid, but only relatively invalid — an invalidity which the entitled co-owner must expressly invoke. From this it drew two fundamental practical conclusions:
What does this mean in practice? The Land Registry will not reject an application for registration, nor stay the proceedings, "merely" because no written agreement waiving the pre-emption right is attached to the purchase contract. Any dispute over the (in)validity of the agreement or the circumvention of a co-owner is not dealt with at the Land Registry — it remains a purely civil dispute between the affected parties before the ordinary courts.
The most common mistake in practice looks like this: the co-owners sign an agreement among themselves along the lines of "". Under the settled case law of the Supreme Court of the Slovak Republic (e.g. file no. 5 Cdo 105/2010), such an agreement is absolutely invalid, because Slovak law
The key point about the statutory pre-emption right is that it does not arise permanently and "forever", but arises afresh each time, at the specific moment when a co-owner decides to transfer their share to a specific third party on specific terms. Only then does the pre-emption right arise for the other co-owners — and only then can they validly waive it or refrain from exercising it.
The meaningful and legally safe scenario is above all where you are dealing with a specific transfer to a specific buyer.
This "unblocks" the pre-emption right in the given case, and you can conclude the contract and file the application for registration with the Land Registry without waiting for the period to expire.
The decision-making practice of the Supreme Court of the Slovak Republic (file no. 7 Cdo/46/2020) stresses very clearly that, in the case of immovable property, a co-owner cannot validly waive the pre-emption right merely by silence or oral consent. It is not enough for someone to say at a family celebration "I don't mind, sell it to whoever you like". For immovable property, the agreement on the non-exercise/waiver of the pre-emption right must be in writing, on pain of absolute invalidity, and in practice certified signatures are standardly required.
If you relied only on an oral "nod", there is a risk that the affected co-owner will later challenge the sale in court on the ground that their pre-emption right was not respected.
For a long time, received wisdom in the property trade held that, to speed up the sale of a share, a unilateral declaration from the co-owner was enough. The most recent case law of the Supreme Court of the Slovak Republic, however, has demolished this myth and set uncompromising rules.
In the past, this was the most common way sellers tried to bypass the two-month period. No "agreement" arose here; rather, after receiving the offer, the entitled co-owner unilaterally declared that they were not accepting it.
If you rely solely on a bare unilateral declaration by the co-owner (without the seller's signature on the same instrument), you risk a court in any subsequent dispute declaring such an act invalid. A unilateral declaration not taking the form of an agreement no longer offers 100% legal certainty today.
On the basis of the courts' current decision-making, a written agreement under § 574 of the Slovak Civil Code is the only legally safe route to lawfully eliminating the 2-month wait. A concurring expression of will by two parties (the selling co-owner and the other co-owners) is required.
If you want to minimise the risk of the entitled party challenging the legal act, the agreement on the non-exercise/waiver of the pre-emption right should contain at least:
Do not waste time or risk the invalidity of the contract. Conclude the agreement with your co-owners in a legally clean way, in line with the current judgments. At the VLKOVÁ law firm we will provide you with a complete service – from the offer procedure through to a successful registration in the Land Registry.
Contact us for a no-obligation consultation.
