Is the transfer of possession of land located extra muros conditional upon observing the right of pre-emption? – Analysis by the High Court of Cassation and Justice

The High Court of Cassation and Justice has ruled that the transfer of possession of land located extra muros does not require the observance of the right of pre-emption.

The analysis clarifies the provisions of Law no. 17/2014 regulating the transfer of ownership of land located extra muros, showing that the transfer of possession does not have the same regime as the transfer of ownership.

By Decision no. 58 of 3 October 2022, the High Court of Cassation and Justice, through the panel for the resolution of matters of the law, analysed the provisions of Law no. 17/2014 to determine whether or not they are applicable to the alienation of possession of land located extra muros.

In order to understand the High Court’s decision, it is necessary to point out that possession differs from ownership. Thus, possession is simply the exercise in fact of prerogatives over a property and it can be obtained through several types of legal operations.

In view of this fundamental difference between possession and ownership, the High Court has ruled that the right of pre-emption does not have to be observed for the disposal of possession, through various legal transactions, as long as ownership remains with the person disposing of possession.

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