Land acquisition powers and land ownership restrictions in European countries: evidence review

Appendix D: Case Studies

Belgium

Status:

• Expropriation of real estate is possible only for reasons of public interest. There are strict criteria that need to be fulfilled in the relevant procedures. There is a 'normal procedure' and an 'urgent procedure' before the civil courts, that is most commonly used), each procedure involves compensation for the owner.
• New Expropriation Decree passed by the Flemish Parliament on 15 February 2017, entered into force on 1 January 2018, for lack of implementing rules. On 27 October 2017 the Flemish Government eventually adopted the implementing decree governing a few practical arrangements of the Expropriation Decree.

Legal basis:

• Article 16, Belgian Constitution (previously Article 11 of the Belgian Constitution 1831;
  • “No one shall be deprived of his property except for public necessity, in the cases and in the manner defined by law and on condition that the owner shall have been previously and equitably indemnified.”
• New Expropriation Decree 2017 for the Flemish Regions.

Grounds:

• The requirements for expropriation are:
  • The objective of the expropriation shall be of common interest (and can only pursue private interests on a secondary level)
  • The necessity of the expropriation: the objective of common interest can only be met through the expropriation of that specific property
  • Expropriation is only possible in exchange for prior and fair indemnification
  • The expropriating authority shall indicate on what legal basis the expropriation procedure is initiated
• All four conditions must be met.
  • Implicit fifth condition, the expropriation must be necessary.
• The new Expropriation Decree 2017 (for Flemish Regions only) contains new clauses with regard to the expropriation procedure:
  • The Decree expressly provides that public authorities can also expropriate rights in rem other than ownership (for ex. the right of way) relating to an immovable property
  • The right to submit a request for 'self-implementation' is expressly provided by the Decree. After all, if the objective of the expropriation can be met by the owner himself and provided the owner is able and willing to meet this objective in the way the government had in mind, there is no need for expropriation. To that end, the owner needs to submit a “request for self-implementation” to the public authorities
  • Whereas in the past, municipalities and provinces used an implicit legal basis to proceed with expropriation, the Expropriation Decree now provides a general habilitation for municipalities and provinces, just like it does for the Flemish Government. To put it in other words, they can proceed with expropriation in those cases where they believe expropriation is required to elaborate infrastructure or policies with regard to municipal and provincial matters respectively
  • The Expropriation Decree provides an obligation to negotiate. The expropriating authority always needs to make a (demonstrable) attempt first in order to acquire the immovable property amicably. Expropriation is (nothing but) an ultimum remedium
  • The Expropriation Decree provides an enforceable acquisition of the non-expropriated part, under certain conditions
  • The Decree expressly provides a right of retrocession. Such a right can be exercised if the expropriated property is not used for the purpose it was initially expropriated for. In principle, it is up to the expropriating authority to notify the expropriated party of this right. However, if the project prompting the expropriation has not started within a five-year term, the right of retrocession will apply in any case
  • There will be a digital expropriation exchange platform on which the entire digital file can be consulted electronically, including all documents and all data on the procedure, and on which these documents can be exchanged.

Compensation:

• Just and previous compensation (previous meaning that the expropriating administration cannot take possession of the property before having paid (part of) the compensation.)
• All damage and disadvantage suffered by the previous owner must be compensated. Previous owners financial situation must be restored. The value of the expropriated good must be evaluated (at ‘purchase value’) and then a so-called reinvestment-compensation will be calculated on this value, to cover the cost of purchasing an equivalent property. In addition the loss of all rights of use has to be compensated, as well as the loss of any personal and economic benefits.
• If the expropriation intends to realise a spatial plan neither the gains nor the losses generated by the change in land use intended by the spatial plan should be taken into account. E.g. if a plot of agricultural land is changed to housing land, the previous owner will receive compensation based on the value of the agricultural land and not on the value of building land. - ‘Planological neutrality.’

Jurisprudence of Significance:

• Belgium has been involved in ECHR litigation concerning complaints re A1P1 but no cases have involved state acquisitions of land or the expropriation rules.

Notes:

New legislation from federal, regional Flemish Parliament.

Key refs:

DLA Piper, 2017, Bob Martens, The Flemish Expropriation Decree: Ready for take-off?

Bulgaria

Status:

• Expropriation is permitted in accordance with the constitution subject to standard conditions.

Legal basis:

• Article 17, section 5, Constitution 1991.
• Same basis as the first Bulgarian constitution in 1879.

Grounds:

• Art 15, s. 5, Constitution 1991:
  • Pursuance of statute law
  • Necessary (state and /or ‘municipal’ needs cannot be met otherwise)
  • After a prior and equivalent compensation (meaning previous and just).

Compensation:

• The State Ownership Act and Municipal Ownership Act provide for two types of compensation: monetary (cash) compensation and property compensation.
• Monetary compensation is determined on the basis of existing use and condition and on market price.
• Only the owner is entitled to compensation. Other persons, including users without formal title of ownership such as possessors or holders within the meaning of article 68 and article 69 of the Ownership Act do not have rights to indemnification.

Jurisprudence of Significance:

Bulgaria has been brought before the ECtHR on 97 cases relating to the A1P1. In 58 of those cases the state has been found to be in violation of the ECHR. Some examples include:

• Kehaya and others v Bulgaria App nos 47797/99 and 68698/01- 2007.
• This ECtHR ruled that deprivation of agricultural property was unlawful due to lack of legal certainty and inadequate compensation. In the absence of a developed market of agricultural land in the area, the price fixed by Bulgarian legislation for tax purposes was used.
• Decheva and others v Bulgaria App no 43071/06 – 2012. The ECtHR ruled that lack of legal certainty (conflicting internal judicial decisions) led to violations of Art 6 (1) and A1P1. Public interest cannot override legal certainty.
• Osman v Bulgaria App No 43233/98 – 2006. The ECtHR ruled that police violence when evicting without an eviction order amounted to A1P1 and Art 3 violations.

Notes:

• The Bulgarian Parliament approved an amendment of the State Property Act and the Municipal Property Act in 2010 so that strategic projects could obtain a preferential status of a ‘site of national significance’, which entitles it to a preferential expediated expropriation regime. In 2013 the Bulgarian Constitutional Court revoked the preferential regime as unconstitutional after an expropriated owner.

Key Refs:

https://www.echr.coe.int/Documents/CP_Bulgaria_ENG.pdf

Czech Republic

Status:

• Land acquisitions by the state are lawful and in accordance with the Constitution under standard conditions.
• Land acquisition rules revised in 2013 following ECtHR jurisprudence to tighten up rules for compensation.

Legal Basis:

• Constitutional Law No 1/1993 Sb., Constitution of the Czech Republic, Article 11:
• ‘Everyone has a right to own property, the right of ownership has the same content and protection for every owner.’
• Expropriation Act No186 /2006 Sb. Newly regulates expropriating rights towards land and real estates, formulated by both the Ministry of Regional Development and the Ministry of Justice.

Grounds for acquisition /expropriations:

• Article 11, Section 4, CZ Constitution; ‘the expropriation or limitation of the property right is possible in the public interest, on the basis of law and for compensation.’
• The requirements for expropriation are:
  • a legal purpose of the expropriation, which is stated in special acts;
  • a public interest;
  • conformity with the aims of landscape planning;
  • subsidiarity – it can be used only in case the aim cannot be achieved in any other way;
  • indispensable extent – it can be used only to the extent necessary to achieve the purpose of the expropriation and
  • a reasonable compensation.

All these terns must be fulfilled simultaneously.

Compensation Procedure:

• General principle of adequate and just compensation at market value or above on existing land use.
• Valuation does not take future purposes or sentimental value into consideration.
• 2013 regulation (ordinance no. 414/2013 Sb.) sets out all mathematical formulas and methods for determining prices.
• Until 2013, the price of the land could change in connection with its future purpose but CZ Supreme Court stated otherwise in Supreme Administrative Court 7 AS 174/2014 - 44 of 23 October 2014. Ruled that the court of appeal cannot change the decision about compensation to the detriment of the expropriated party or the third persons.

Jurisprudence of Significance:

• Pešková v the Czech Republic (App non 22186/03). The ECtHR found that the Czech government had breached A1P1 when the compensation provided to the expropriated party did not reflect the market price of the real estate at the time the property was expropriated. Consequently rules of compensation revised in 2013 legislation.
• Malhous v CZ App no 33071/96, (ECtHR, 13 Dec 2000).
• Harrach v. CZ App no 77532 /01 (ECtHR 18 May 2004)
• Žáková v. CZ App no 2000/09 (ECtHR, 20 January 2014).

Notes:

The European Court of Human Rights gives public interest examples in the above cases.

Germany

Status:

• Expropriation is possible but only where specific legislation or an ordinance related to that legislation permits it. Expropriation is only allowed when it is necessary in the public interest. The state must pay compensation to the relevant party.
• In Berlin, some political parties are discussing the expropriation of housing space due to constantly rising rents.

Legal basis:

• Article 14, German constitution – Grundgesetz – Basic Law for the Federal Republic of Germany:
  • “Property and the right of inheritance shall be guaranteed. Their content and limits shall be defined by the laws.
  • Property entails obligations. Its use shall also serve the public good.
  • Grounds for acquisition /expropriations:
• Article 14, German constitution – Grundgesetz – Basic Law for the Federal Republic of Germany:
  • Expropriation shall only be permissible for the public good. It may only be ordered by or pursuant to a law that determines the nature and extent of compensation. Such compensation shall be determined by establishing an equitable balance between the public interest and the interests of those affected. In case of dispute concerning the amount of compensation, recourse may be had to the ordinary courts.

Compensation:

• Ss. 95 .1 BauGB
  • Compensation for the loss is based on market value at the time of expropriation. This is usually established through price comparison.
  • The value is dependent on the location, size, shape and infrastructure provision.
• Ordinance for the Establishment of Property Values (Immobilienwertermittlungsverordnung, "ImmoWe”tV") sets out (optional) valuation procedures to assess comparative, capitalised and intrinsic values.

Jurisprudence of Significance:

• Hermann v Germany App no 9300/07 (ECtHR, 26 June 2012). The ECtHR found that an obligation to allow hunting on a piece of land was a violation of A1P1 as the owner objected to hunting on ethical grounds. The aims of the German hunting jurisdiction were to preserve a healthy and biodiverse fauna and regional culture. The Court held that the fair balance between the protection of property rights and the public interest requirements was disturbed and an unreasonable burden was placed on the property owner. Consequently, German law (the Federal Hunting Act, Bundesjagdgesetz, 2013) was updated to enable landowners who object to hunting on ethical grounds to have their interests considered as part of an assessment of all relevant public interests and personal interests.

Notes:

Distinctions are made on land types; agricultural and forestry; greenfield sites where the property market is expecting development in the near future; greenfield sites that are intended for construction but do not yet have any infrastructure; building land and land that already has infrastructure and can be used for building.

Key Refs:

• Palmstorfer, N. (2017). Austrian Constitutional Court: Vegan Landowner Must Tolerate Hunting on his Property. ICL Journal, 11(1).

France

Status:

• Expropriation process considered necessary and just but lengthy. The threat of expropriation can foster friendly acquisitions.

Legal basis:

• Expropriation Code (Code de l’expropriation) 1977.
  • Expropriation must be in the public interest, justified, necessary and proportionate (the infringement of the rights of the person concerned is not disproportionate when set against the project's objective).
• Order of 6 November 2014 creates a specific procedure for the clearance of substandard housing

Compensation:

• At market value to the landowners and affected third parties.

Jurisprudence of Significance:

• Yvon v France App no 44962/98 (ECtHR , 24 April 2003). Violation of Article 6 (1) found as a result of the role of Government Commissioner in proceedings concerning the fixing of compensation for expropriation.
• Led to the standardisation of the role and powers of the government commissioner in assisting the expropriation judge fix the allocated compensation.
• Guillemin v. France App No 19632/92 (ECtHR, 21 February 1997). Violation of Article 6 (1) found as a result of the lengthy expropriation proceedings in France.

Notes:

See also France SAFER Model

France SAFER

Status:

• In France, buying and selling farmland is done on a regulated market. Control over this particular market is operated by the SAFER (Société d'aménagement foncier et d'établissement rural– Organism for rural land design and rural settlement). Every French region has its own local SAFER. To achieve its missions, SAFER monitors farm land sales and intervenes when needed to make the sale best suit the objectives of the law. They take action by buying the land and selling it back to the person they choose. Unlike a private seller who will choose the highest bidder, SAFER will sell to the best bidder.

Legal Basis:

• The Safer were created by the Agricultural Orientation Law of August 5, 1960. Their initial objectives were to reorganize farms, as part of the establishment of more productive agriculture, and to settle young people.
• Since its origins, society has evolved, support for sustainable development in agriculture and in the territories is becoming widespread, urbanization is spreading, agricultural land is being used for other purposes and the mission of the Safers is expanding. is expanded.
• The Safer still develop agriculture, but they also protect the environment, landscapes, natural resources such as water and they support local authorities in their land projects.

Grounds:

• To promote the development of financially sustainable farms and to help farmers set up.
• For the purpose of general(public) interest;
  • To maintain the agricultural vocation of a property;
  • To avoid price escalation;
  • To promote local development;
  • To protect the environment.

Compensation:

• Collective agricultural compensation (CCA)
• Decree No. 2016-1168 of August 29, 2016 authorizing the Central Land Development and Rural Establishment Company to exercise the right of first refusal and to benefit from the amicable offer before voluntary adjudication.

Jurisprudence of significance:

• Affaire Hentrich c. France App 13616/88 - 1994.
• Affaire Aycaguer c. France 8806/12 - 2017.
• Affaire R.P. v. France App 10271/02 - 2010.
• Affaire Pascaud c. France 19535/08 - 2012.

Notes:

On process, if a farmer wants to sell his land, he can contact the regional SAFER who will give a fair price to the land. Advertising is made by SAFER through the town halls and on a website. Candidates for the purchase have to fill a written submission. A regional Technical Committee (composed by members of the Agriculture Chamber, the majority farmers union, banks and insurance companies, regional authorities and representatives of the State) examine all the projects based on multiple criterias; the local situation, SAFER’s missions, the skills of the candidate and the viability of the project. Then they give a recommendation to the Board of Directors who will make the decision. An image visualizing this process is available here (image source: Agriculture and Rural Convention 2020 website.)

Key refs:

• ARC2020; https://www.arc2020.eu/public-land-agencies-is-the-french-safer-safe-for-romania/
• Website of Société d'aménagement foncier et d'établissement rural; https://www.safer.fr/ in French.
• SAFER Report 2018. “50 Actions des Safers dans nos regions.” https://www.safer.fr/app/uploads/2018/10/50-actions.pdf

Netherlands

Status:

Expropriation permitted which clearly differentiated approaches dependent on the nature of the expropriation purpose.

Legal basis:

• Article 14, Constitution, states that expropriation may in principle only take place in the public interest and if compensation has been ensured in advance. Compensation need not be ensured in advance in cases of emergency.
• Extensive jurisprudence by the Dutch Supreme Court.

Grounds:

• Must be in the public interest, have urgency, and necessity.
• There are cases where expropriation requests have been rejected because the expropriation would serve only a public interest.
• Processes vary according to the nature of the expropriation purpose. E.g. expropriation for: roads, bridges, verges, ditches and canals; for drinking water companies or waste removal; for the extraction of surface minerals; for the execution of spatial plans, for public housing, for public order, and for the enforcement of the Opium Act; for land reorganisation.

Compensation:

• Compensation can extend to third parties who made be disadvantaged by the land acquisition.
• The Dutch Expropriation Act does not set out rules for the determination of the actual value. The Supreme Court has often reiterated that the judge in an expropriation case is not just obliged to determine the compensation independently, but is also free in his choice for the valuation method that is more suitable to that particular case. The comparative method and the residual method (looks at the new use value and subtracts development costs) are the two most used valuation methods.

Jurisprudence of Significance:

• No ECHR jurisprudence concerning expropriations.

Key references:

• Holtslag-Broekhof, S. (2018). Urban land readjustment: Necessary for effective urban renewal? Analysing the Dutch quest for new legislation. Land Use Policy, 77. https://doi.org/10.1016/j.landusepol.2017.07.062
• Holtslag-Broekhof, S., Beunen, R., Marwijk, R. van, & Wiskerke, J. S. C. (2018). Exploring the valuation of compulsory purchase compensation. Journal of European Real Estate Research, 11(2). https://doi.org/10.1108/JERER-04-2016-0018