Classified heritage property: the Minister’s right of pre-emption in case of sale

Québec’s Minister of Culture and Communications has a right of pre-emption, also known as a “right of preference”, on any immovable classified as heritage property or situated on a classified heritage site. This means that the Minister may acquire a property by preference over any other purchaser at the price the purchaser is willing to pay. In accordance with the Cultural Heritage Act, the Minister must be given notice prior to the sale of such a property so that he may decide whether to exercise this right.

How can one find out if an immovable is a classified heritage property?

For the purpose of your verifications, it is useful to know that if the immovable is subject to the Cultural Heritage Act, the information may be found:

• On the latest certificate of location;
• In the Cultural heritage register of Québec;
• In a letter sent to the owner by the Ministère;
• In the land register;
• At the office of the registrar or secretary-treasurer of the municipality concerned.

What to do when taking up a brokerage contract in a case like this?

When taking up a brokerage contract for an immovable that is classified as heritage property or located on a classified heritage site, the broker must make sure to check “Yes” under clause D2.9 of the form Declarations by the seller of the immovable (immovable is subject to a heritage protection law or regulation) and provide details under clause D15 to the effect that the immovable is subject to the Cultural Heritage Act. The information concerning the Minister’s right of pre-emption must also appear on the detailed description sheet, so that any prospective buyers and their brokers are duly informed.

What to do when drafting a promise to purchase in a case like this?

Since the Minister has a right of pre-emption, the Promise to purchase or the Counter-proposal must be conditional¹ upon the Minister opting not to exercise this right. It is therefore advisable to wait until the Minister’s answer has been received before starting to work on the other conditions, including financing and inspection, in order to avoid unnecessary expenses in the event that the right of pre-emption is exercised.

When must the notice to the Minister be sent and what should it contain?

In order to enable the Minister to exercise his right, the Cultural Heritage Act stipulates that no person may sell a classified heritage immovable or an immovable situated on a classified heritage site without giving the Minister at least 60 days’ prior written notice.

Therefore, once the transaction proposal is accepted, the seller must send the 60-day notice to the Minister. If the Minister does not exercise his right of pre-emption within the prescribed period, the seller may deem the condition fulfilled and send a notice to this effect to the buyer.

The prior written notice must contain the cadastral description of the property, as well as the names and home addresses of the owner of the immovable and the person interested in acquiring it. The notice must also contain the price that this person is willing to pay and which the owner is willing to accept.

To exercise his right of pre-emption, the Minister must, within the period of 60 days following receipt of the notice as provided above, signify in writing his intention to acquire the immovable. At the expiry of this period, the classified heritage immovable or the immovable situated on a classified heritage site may be sold to the person interested in acquiring it, but it must be at the price submitted to the Minister, if the Minister has not signified his intention to acquire the property.

For more information, we recommend a visit to the Ministère’s website.

¹ See Standard clauses