كسب الملكية العقارية عن طريق الشفعة

Abstract

Reforming the terms of property acquisition is granted as among the reforms that have been carried out by the Government in order to organize the real estate. This has been provided and listed by the Algerian civil code in articles 773 to 843: legacy reception, will, adjunction, title, pre-emption, and attribution. Pre-emption is a matter of estate acquisition which arouses a number of controversies and is widely discussed among jurisconsults and lawyers. It used to be common in the Ante-Islamic era, but it was thanks to the Islamic Shariaa (Legislation) that patterned its decrees. Nowadays, it has influenced many Arab and other foreign legal systems. Pre-emption was provided to keep joint ownership and cohabitation safe from prejudice. Besides, it has some economic advantages in keeping together dispatched estate or in developing prevalence. Therefore, it plays a part in restructuring real estate and allows the Authorities a means to secure real estate in order to enlarge and promote the tourism industry. Taking into account that mutual consent between the buyer and the seller is not required for referring to pre-emption, it must be considered as an exceptional status different from the original (consent between contractors); to put it another way, it is an assigned appropriation by legal decree since the owner is expropriated without his consent. The right of pre-emption has been provided for the estate owner, the prevalence co-owner, and the usufruct tenant according to article 795 of the Civil Code. Some specific legislation has also bestowed the right of pre-emption on the Government, local communities and neighbours in farming lands that are to be sold. The Algerian lawmakers have arranged these provisions within extremely thorough steps beginning with an official notification and ending with a judicial decree which is considered an official bond acting as a title of ownership. As a direct consequence, the pre-emption claimer stands instead of the buyer by obtaining the rights granted to the latter.