The preferential acquisition right for lease contracts subject to Law 4/2013, Royal Decree Law 21/2018 and Royal Decree Law 7/2019.

Abstract

The preferential acquisition right is condictioned to the legal regime related to the voluntary and forced sale of the leased urban property (that is, to the subsistence or not of the lease after such transmissions). This regime has undergone variations in the different wording that the Urban Leasing Law of 1994 has had. Since the preferential acquisition right is a limit to the domain in the interest of individuals, it in turn operates as an exception to the public registration faith, of so that it is exercisable even in front of third acquirer protected by public registry faith who may be unaware of the lease, since the preferential acquisition right was born at the time of the transfer and at that moment it entered the assets of the lessee, so it existed until the time of registration with the requirements of articles 32, 34 and 36 of Mortgage Law. Despite the fact that according to article 13 of the LAU in the wording given by Law 4/2013, the lease not registered before the mortgage is extinguished by its execution, and consequently there would be no right of preferential acquisition (as it is accessory to the lease), a joint interpretation of articles 13 and 14 LAU and the consideration of the good or bad faith of the mortgagee with respect to the previous unregistered lease, may determine the subsistence of the lease after the foreclosure and the consequent existence of the right of preferential acquisition which would not, therefore, be necessarily conditioned to the registration of the lease.