Right of First Refusal When Buying Property in Berlin: Municipality, Deadlines, Negative Certificate
Even after the notary appointment, someone else can still step into a purchase in Berlin: the State of Berlin, acting through the district, or tenants. This rarely happens. But the check is part of almost every purchase of a house or plot of land. Its completion is often a condition for paying the purchase price.
Table of contents
At a glance – right of first refusal in Berlin
- Same terms: If someone exercises a right of first refusal (Vorkaufsrecht), a separate purchase agreement comes into being between the seller and that person, generally on the terms of the agreement already notarised.
- Deadlines: The municipality has three months after it has been notified of the purchase agreement (section 28 (2) BauGB). Tenants and private holders have two months (section 469 (2) BGB).
- Owner-occupied flat: When someone buys a flat under condominium ownership, the municipality has no right of first refusal (section 24 (2) BauGB). You do not need a negative certificate.
- House or plot of land: The land registry needs a negative certificate (Negativzeugnis) from the district. In Berlin it costs 100 euros; according to Service Berlin, processing takes about three weeks.
- Social preservation areas: In Berlin’s 82 social preservation areas (Milieuschutz), Berlin has hardly exercised the right of first refusal since a 2021 judgment. The federal government plans a change in the law, but the Bundestag has not yet adopted it (as of 30 September 2026).
- Tenants: They have a right of first refusal if the owner divided their flat into condominium ownership after they moved in, or plans to divide it, and sells it for the first time (section 577 BGB).
What is a right of first refusal?
A right of first refusal allows someone to buy a property that the owner has already sold to another person. If the holder exercises it, a separate purchase agreement comes into being between the holder and the seller, generally on the terms of the original agreement (section 464 (2) BGB). Rights of first refusal arise from the law or from an agreement.
| Who | Applies to | Deadline | Legal basis |
|---|---|---|---|
| Municipality, in Berlin the district | houses and plots of land in certain areas | three months | sections 24–28 BauGB |
| Tenant | rented flat divided into condominium ownership after moving in | two months | section 577 BGB |
| State of Berlin | plots in nature and landscape conservation areas and plots with surface waters | two months | section 53 NatSchG Bln, section 66 BNatSchG |
| Private holders | right of first refusal in the land register or in a contract | two months, unless agreed otherwise | sections 463 et seq., 1094 et seq. BGB |
The municipality's right of first refusal: in Berlin the district decides
The Federal Building Code (BauGB) grants the right of first refusal to the municipality. In Berlin, this is the State of Berlin. The urban development office of the district in which the property is located exercises it.
When does the municipality have a right of first refusal?
The municipality only has a right of first refusal in certain cases (section 24 (1) BauGB). In Berlin these are the most important:
- plots in a preservation area, such as a social preservation area
- plots in a redevelopment area
- undeveloped plots intended for housing
For individual areas, the State can also establish a special right of first refusal (section 25 BauGB). The municipality may only exercise the right if the public interest justifies it (section 24 (3) BauGB).
House or owner-occupied flat?
When someone buys a flat under condominium ownership or a heritable building right, the municipality has no right of first refusal (section 24 (2) BauGB). In Berlin, the municipal right of first refusal therefore mainly concerns houses and undivided plots. When you buy a rented flat, tenants may still have a right of first refusal.
When is the right of first refusal excluded?
On a sale within the family, the municipality may not exercise its right (section 26 no. 1 BauGB). This applies to spouses, to relatives and in-laws in the direct line and to relatives in the collateral line up to the third degree, such as siblings, nieces or nephews.
The municipality may also not exercise the right if the plot is built on and used as provided for by the development plan or the objectives of the urban development measure, and the building has no defects within the meaning of section 177 BauGB (section 26 no. 4 BauGB).
In these cases the law only excludes the exercise. The district must still receive the purchase agreement.
A gift is not a sale and does not trigger a right of first refusal. For how parents transfer a house to their children, see the article Transferring a house to your children. If a company sells to another company with the same shareholders, this counts as a sale to a third party. The right of first refusal can then apply (Federal Administrative Court, judgment of 17 June 2025, 4 C 3.24).
Deadline and process
The seller must notify the district of the purchase agreement (section 28 (1) BauGB). In practice, the notary does this for the parties. The notary points out possible rights of first refusal at the notarisation (section 20 BeurkG).
The district then has three months to exercise the right of first refusal (section 28 (2) BauGB). You often still read two months. Since 2021 it has been three. If the district does not exercise the right, it issues a negative certificate, according to Service Berlin usually after about three weeks.
May the district pay less than agreed?
If the agreed purchase price exceeds the market value, the municipality may pay the market value. The seller can then withdraw from the agreement until one month after the decision on the right of first refusal has become final. If the seller withdraws, the municipality bears the costs of the agreement on the basis of the market value (section 28 (3) BauGB).
Can the buyer avert the exercise?
Yes, under certain conditions. Before the deadline expires, the buyer must undertake to use the plot as provided for by building law or the objectives of the urban development measure, or to remedy defects in the building. The buyer must also be able to do so within a reasonable period (section 27 (1) BauGB). If the buyer shows this credibly before the deadline, the district must extend the deadline by two months on application. In Berlin, people call such an undertaking an averting agreement (Abwendungsvereinbarung).
Right of first refusal in social preservation areas
Berlin has 82 social preservation areas (Milieuschutzgebiete). To check whether an address is in such an area, see the Senate Department’s map (in German).
In 2021 the Federal Administrative Court ruled: if a building is built on and used as the preservation statute intends, and has no defects within the meaning of section 177 BauGB, the municipality may not exercise its right of first refusal. What counts are the actual circumstances; assumed future intentions of the buyer are not enough (Federal Administrative Court, judgment of 9 November 2021, 4 C 1.20). Since then, Berlin has hardly exercised the right of first refusal in social preservation areas.
| Year | Cases examined | Right exercised | Averting agreements |
|---|---|---|---|
| 2021 | 177 | 13 | 84 |
| 2022 | 9 | 0 | 4 |
| 2023 | 5 | 1 | 2 |
| 2024 | 5 | 1 | 0 |
| 2025 | 7 | 1 | 2 |
Source: Berlin Senate, eighth and ninth reports on the exercise of rights of first refusal in social preservation areas (2025 and 31 March 2026).
The Federal Government wants to make the right of first refusal in social preservation areas easier again. The bill has been before the Bundestag since June 2026 and has not yet been adopted (Bundestag printed paper 21/6588, as of 30 September 2026). The rules in force at the time of the sale govern the municipal right of first refusal (section 234 (1) BauGB).
The right of first refusal is distinct from Berlin’s rules against converting rented buildings into condominiums. These concern the division of a building, not its sale.
The negative certificate
The negative certificate (Negativzeugnis or Negativattest) confirms that the municipality has no right of first refusal or will not exercise it (section 28 (1) BauGB). It counts as a waiver. Without a negative certificate, the land registry does not register the buyer as owner when someone buys a house or plot of land.
What does the negative certificate cost in Berlin?
The notary applies for the negative certificate from the district. The district office charges 100 euros for it (building fees ordinance, tariff item 14.2). Whether there is an additional notary fee depends on what else the notary does for the agreement.
| Case | Notary | District office | Total |
|---|---|---|---|
| The notary charges the full completion fee for the agreement anyway, for example because the notary obtains documents to cancel a land charge | no additional fee (section 93 GNotKG) | €100.00 | €100.00 |
| The negative certificate is the only thing the notary obtains | up to €50.00 plus VAT (KV 22112) | €100.00 | up to €159.50 |
The amounts include the fees shown and VAT; expenses may come on top. For all other costs of buying, see the article Property purchase costs in Berlin.
Special case: nature conservation
If a plot is in a nature or landscape conservation area or in a correspondingly provisionally protected area, or has surface waters on it, the State of Berlin has a further right of first refusal (section 53 NatSchG Bln). Berlin can exercise it within two months (section 66 (3) BNatSchG, section 469 (2) BGB). The Senate Department recommends asking the district office before the purchase. Charlottenburg-Wilmersdorf has waived this right of first refusal until revoked.
Tenants' right of first refusal
Tenants have a right of first refusal if the owner divided their flat into condominium ownership after they moved in, or plans to divide it, and sells it to another person (section 577 (1) BGB). This only applies to the first sale after the division (Federal Court of Justice, judgment of 22 June 2007, V ZR 269/06). If the owner sells to family members or members of their household, there is no right of first refusal.
The seller must inform the tenants of the purchase agreement and their right of first refusal (section 577 (2) BGB). The tenants then have two months and must declare in writing that they will buy (section 469 (2), section 577 (3) BGB).
Buyers therefore usually only pay the purchase price once the deadline has expired or the tenant has waived the right.
Rights of first refusal in the land register
The parties can also agree on a right of first refusal and record it in the land register, in Section II (sections 1094 et seq. BGB). It has the effect of a priority notice against the buyer (section 1098 (2) BGB).
The deadline is two months unless agreed otherwise (section 469 (2) BGB). A right of first refusal in favour of a specific person is generally not inheritable unless agreed otherwise. If it is limited to a certain period, it is inheritable in case of doubt (section 473 BGB). A right in favour of the current owner of another plot remains attached to that plot (section 1094 (2) BGB). For the structure of the land register, see our article on the land registry.
What the right of first refusal means for your purchase agreement
Purchase price usually only after the negative certificate
It is usual for the purchase price only to become due once the district has issued the negative certificate or it is clear that nobody will exercise a right of first refusal. The notary will tell you when this is the case. For how the agreement otherwise regulates the due date, see the article Priority notice of conveyance.
The priority notice does not protect against the municipality
The priority notice of conveyance secures your claim to ownership. It does not help against the municipality’s right of first refusal. Once the municipality exercises it and appears in the land register as owner, it can demand the cancellation of your priority notice as soon as the exercise is final for you (section 28 (2) BauGB).
If the right of first refusal is exercised
Once someone exercises the right of first refusal, a separate purchase agreement comes into being with that person. The original purchase agreement initially remains in place. It should therefore regulate when the parties can withdraw and who bears the costs already incurred. Clarify questions about real estate transfer tax with your tax adviser.
Checklist for sellers
- Is the flat rented and was it divided into condominium ownership after the tenant moved in?
- Is the plot in a social preservation area or a redevelopment area?
- Is it in a protected area or next to surface waters?
- Is there a right of first refusal in Section II of the land register?
You can enquire about a purchase agreement for your property using our enquiry form.
Practical tip: When buying a house, allow about three weeks for the negative certificate. The purchase price usually only becomes due once it is available, so align the payout date of your loan with it.
Prepare your purchase agreement
Would you like to buy or sell a house, flat or plot of land in Berlin? Send us the key details. We check whether a right of first refusal may apply and obtain the negative certificate.
Frequently asked questions: right of first refusal in Berlin (FAQ)
How long does the municipality have to exercise the right of first refusal?
Three months after it has been notified of the purchase agreement (section 28 (2) BauGB). The two months often quoted applied until 2021.
Does the municipality also have a right of first refusal for an owner-occupied flat?
No. When someone buys condominium ownership or a heritable building right, the municipality has no right of first refusal (section 24 (2) BauGB). Tenants may still have one.
Can a right of first refusal prevent the sale?
The original buyer may lose the purchase, because the holder of the right then buys, generally on the same terms. If the municipality sets the price at market value, the seller can withdraw (section 28 (3) BauGB).
Does the priority notice of conveyance protect against the right of first refusal?
Not against the municipality. If it exercises the right and appears in the land register as owner, it can demand the cancellation of the buyer’s priority notice once the exercise is final (section 28 (2) BauGB).
May the municipality pay less than the purchase price?
Yes, if the purchase price exceeds the market value. The seller can then withdraw from the agreement (section 28 (3) BauGB).
Is there a right of first refusal if I sell to my children?
The municipality may not exercise its right on a sale to spouses, children and certain other relatives (section 26 no. 1 BauGB). Tenants have no right of first refusal on a sale to family members (section 577 (1) BGB).
Who applies for the negative certificate?
Usually the notary who notarised the purchase agreement. The notary sends the agreement to the district’s urban development office and submits the negative certificate, also called a Negativattest, to the land registry.
When do tenants have a right of first refusal?
If the owner divided their flat into condominium ownership after they moved in, or plans to divide it, and sells it to another person for the first time (section 577 BGB). They must declare in writing within two months.
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Rights of first refusal and purchase agreements with a notary in Berlin
For every purchase agreement, the notary checks whether a right of first refusal may apply, notifies the relevant authorities and submits the negative certificate to the land registry. You can find further services relating to buying property on the page Notary for real estate law in Berlin.
