The right of tanteo: buying before an outsider does

It is Chapter III of Title VIII of Book Three of the Civil Code of 2020, Articles 1033 to 1038, plus Article 1039 on extinction. It is the second of the three preferential acquisition rights, and the one closest to what people call having first crack at buying.

It may be agreed between the parties or come from the law. The Code names one legal instance in this chapter: that of owners of adjoining lands on the sale of a rustic plot whose area does not exceed ten thousand square metres.

• That the owner wish to transfer the thing by an onerous act.Verified against the official source
• Exercising it within the agreed period or, failing one, within thirty days from the day after the notice could have come to the holder’s knowledge.Verified against the official source
• For the neighbours’ tanteo, that it be the sale of a rustic plot whose area does not exceed ten thousand square metres.Verified against the official source
• That the adjoining lands not be separated by streams, irrigation ditches, ravines, roads or other apparent servitudes benefiting other plots.Verified against the official source
• To record the right’s transfer or encumbrance, that it was not constituted as personalísimo.Verified against the official source

• The reliable notice of the transfer agreement between owner and third party: the period runs from it, and its absence turns the tanteo into a retracto.

1. 1

   Step 1: What it is, and its other face

   Article 1033 defines it in two sentences that must be read together. The tanteo right empowers its holder to acquire a thing preferentially should its owner wish to transfer it by an onerous act. And the tanteo right is a right of retracto once the transfer has already taken place, letting its holder subrogate into the third-party acquirer’s position. Before the sale it is called tanteo; after it, retracto.

2. 2

   Step 2: It can be recorded on its own

   Article 1034 allows it: conventional tanteo and retracto rights for acquiring ownership may be recorded without needing to be agreed inside another recordable contract. And it adds that the transfer or encumbrance of these rights may be recorded provided they were not constituted as personalísimos.

3. 3

   Step 3: How long it lasts, and when the recording lapses

   Article 1035 separates two cases. A real tanteo may be constituted for an indefinite time where its exercise was agreed for the first transfer, and for no more than ten years where agreed for second and later transfers. Once recorded, it lapses on the term granted, which may not exceed ten years, or four years from the contract date if no term was stipulated. Extensions by agreement may not exceed that same maximum.

4. 4

   Step 4: The thirty days almost nobody counts right

   Article 1036 fixes them precisely: if no exercise period was fixed, the right lapses once thirty days have passed, starting the day after the day the notice of the transfer agreement between the thing’s owner and a third party could have come to the holder’s knowledge. Note the formula: not from when you found out, but from when the notice could have come to your knowledge. Where the transfer is subject to a term or suspensive condition, the period runs from the term’s expiry or from knowledge of the condition’s fulfilment.

5. 5

   Step 5: Only the first transfer, and in auctions too

   The same Article 1036 sets two more rules. The tanteo right may only be exercised as to the first transfer, absent agreement or stipulation otherwise. And it may also be exercised even where the projected transfer takes place by judicial or extrajudicial auction; on challenge, the exercise period is suspended until the challenge is resolved.

6. 6

   Step 6: The neighbouring landowners’ tanteo

   Article 1037 creates a legal tanteo with concrete numbers. Owners of adjoining lands have a tanteo right on the sale of a rustic plot whose area does not exceed ten thousand square metres. It does not apply to adjoining lands separated by streams, irrigation ditches, ravines, roads and other apparent servitudes benefiting other plots. And if two or more neighbours exercise the tanteo, or the retracto as the case may be, at the same time, the owner of the smaller adjoining land is preferred; if both are equal, whoever asks first.

7. 7

   Step 7: If you were not notified: tanteo becomes retracto

   Article 1038 is the one that saves a holder who found out late. The tanteo right becomes a right of retracto if the reliable notice of the transfer agreement is missing, or if the transfer was made on conditions different from those in the notice. The retracto must be exercised within a period equal to the one agreed for the tanteo; if none was agreed, or if the tanteo is a legal one, the retracto period is sixty days. And that period runs, in every case, from the date of registry recording or of knowledge of the transfer.

8. 8

   Step 8: How it is extinguished

   Article 1039 holds for all three preferential acquisition rights: they are extinguished once exercised, or on fulfilment of their duration and — for tanteo — of their exercise period, or by the holder’s renunciation.

The right is exercised against the thing’s owner, with reliable notice. Recording goes before the corresponding registry, and any dispute before the Court of First Instance. The Civil Code designates no agency to administer it.

• Counting the thirty days from when you found out: they run from the day after the notice could have come to your knowledge.
• Believing that without notice the right is lost: the absence of reliable notice turns it into a retracto.
• Thinking that selling on terms different from those notified settles it: that too turns the tanteo into a retracto.
• Assuming tanteo covers every future sale: only the first transfer, absent agreement otherwise.
• Believing an auction dodges it: it may also be exercised in judicial or extrajudicial auctions.
• Claiming a neighbour’s tanteo over a plot larger than ten thousand square metres.
• Claiming it where the plots are separated by a road, a stream or an apparent servitude benefiting another plot.

These are the government pages this guide is based on.

• Poder Judicial de Puerto Rico

  Poder Judicial

  bvirtualogp.pr.gov