Expropriation - an explanation and the Law
Expropriation refers to confiscation of private propery wth the stated purpose of establishing social equality
EXPROPRIATION REPORT & PROCESS
(AVE and others)
This guide is, of necessity, both brief and general, and is therefore no substitute for proper professional advice, which we will be happy to provide on request.
This guide has been prepared by the following companies,
THALASSA ADVOCATS Corredera, 37
03202 Elche (Alicante) SPAIN
TLF:+34 966 614 384/FAX: +34 965 420 960
If the expropriation is justified by the purpose of “public utility”, the owner can not make opposition against this decision from the administration.
The necessary or obligatory expropriation use to be a cause of mistrust between citizens, because implies to force them to hand over to the administration their properties or assets. In the process of to build a road, a bridge, or a sport area (public infrastructures), very often is necessary to claim the ownership of the land that belongs to particulars. There must be taken into account that the Public Administration is the only entity which enough faculty to force particulars to give their properties. And, against this power, the particular can not make opposition.
In this instance, the owner receives a compensation for the economical damage, or a swap for other asset. This compensation is known as “fair price” (Justiprecio), which, unfortunately, very often is not such as “fair” as desirable, and is the most fighting point in the process.
The obligatory expropriation implies the transmission of the ownership from a particular to the Administration, which can acquire it even without the consent of the owner. It is regulated in the Act of Obligatory Expropriation, from 1954 (Ley de Expropiación Forzosa de 1954), the regulatory act of 1957 (RD 1957), and the new Refunded Land Act from 20th of June 2008 (Real Decreto Legislativo 2/2008, de 20 de junio, por el que se aprueba el texto refundido de la ley de suelo).
The main consequence of these regulations is the obligation to give the property required by the administration, when the purpose of use is adequate with the laws.
The laws confirms that a expropriation can be decided by the Estate, the Region Gouvernment (Comunidad Autónoma), the Province (Provincia), the Island, or the Local Council (Ayuntamiento), and is the most absolute manifestation of the Public Power, in front of which, the particular can not make any legal opposition if the action is duly justified and according to the laws.
It is for this reason that the first step in the expropriation process is the declaration of “Public Utility” from the property or right to expropriate. In fact, is absolutely indispensable to declare as “Public Utility” that right or property.
This requirement of “Public Utility” is so important, that the organism which must carry out the expropriation must be “public”. It does mean, for example, in the AVE project in the region, the expropriation institution is the Public Infrastructures Ministry (Ministerio de Obras Públicas), and not RENFE neither ADIF.
What items can be expropriated?
Although in the majority of the cases the expropriations are over the ownership of real estates, it can be subject of expropriation any kind of assets like art works, cars, vessels, bonds, shares, and any other rights which, in determinates circumstances can be necessary for “Public Utility”.
The first step is the declaration of “Public Utility”. This declaration must be made always through a legal act, or in an agreement of the Ministers Council (Consejo de Ministros), save in those cases in which the estate or the asset is absolutely “essential” for the public projects to be developed by the Estate.
In these last cases, the “Public Utility” is consider as implicit, and the administration only has to publish the assets or estates to expropriate in the Public Official Bulletin (Boletín Oficial del Estado – BOE), in the Province Official Bulletin (Boletín Oficial de la Provincia), and inone of the most popular newspaper of the Province.
After this publication, it will start an interval of time of 15 days of public information. It will leave to particulars affected to make eventual opposition and to correct irregularities in the information.
After these 15 days, there are another 20 days in which the administration study each one of the opposition or irregularities obtained. After this time, the administration declares “necessity of occupation” (necesidad de ocupación), which must be published and notified individually to all the affected.
In fact, is very important the individual notification to the particulars involved. Otherwise, the expropriation can not be “legal”. Against this notification, the particular can not make opposition, but can consider invalid the declaration of “Public Utility” of their estates, and or the declaration of “necessity of occupation”, in the administrative process and in the Courts and Tribunals.
One of the most popular causes of opposition against the expropriation process is mistakes in the public information process of 15 days.
Once they receive the notification, particulars have 10 days to make opposition against that notification. This opposition will be directly placed in the administrative process, not in the Courts, and the administration will have 20 days to decide. Meanwhile, the expropriation process will be in stand by with a limit of 30 days.
The “Fair Price” – Justiprecio
Once confirmed the expropriation, the affected will have the right to receive a compensation, which is known as “Fair Price” or “Justiprecio”. The amount of this compensation is calculated with a previous evaluation of the assets and rights subject to be expropriated, and can be agreed “friendly” between the parts in 15 days. If this amount is agreed, the process will be finished.
In this instance, if the parties do not arrive to a point of agreement with that price, a new process must be open in which the administration leaves 20 days to the owners to present their considerations over the property valuation and proposing a price (Hoja de Aprecio). The administration can then accept or refuse this proposal. If it accepts, then the process will be complete.
In this instance, if the administration refuses to accept the proposed price of the part, then they will make another valuation (Hoja de Aprecio) which will notify to the owner to him to study it for a term of 15 days. If he accepts, then the process will be complete.
In this instance, if the owner does not accept the last price offered by the administration, then the case will be taken to the Province Tribunals of Expropriation (Jurado Provincial de Expropiación), which will be finally the one to decide about the Fair Price.
The Tribunals are in Alicante, and its formed by one President and four assistants, being a public functionary, a representative from the Farmers Association (Cámara Agraria), and a Notary. Its function is to study the proposals of price from the parts, and to give the proper decision. In theory, they should take maximum 8 days to give the decision (From my experience, I know that they take, sometimes one or two years!).
The decision of the Expropriation Tribunals can be refused and sent to a higher Court.
If there is a delay in the decision from the Expropriation Tribunals for more than 6 months, interests can be joined to the compensation amount. And, if there is a decision f price, but the administration does not pay for more than 2 years, the property a new evaluation must be taken over the property in order to check its value after that time,
this is called “retasación”.
After the presentation of the “retasación”, start again the process to obtain a new “Fair Price”. Once the new price is obtained, and paid, the property can be occupied by the administration by a limited time. Sometimes, the administration decides to swap the price to pay for property expropriated with another property.
The expropriation process can be extended for several years till both parts arrive to an agreement over the “Fair Price”, although it does not mean that the expropriation process stops there. In this way, the Ley 38/1999 de 5 de Noviembre de Ordenación de la Edificación (LOE), introduced the “right of reversion”. This right allows the owner to reccover the property total, or partially, with the correspondent refund of the compensation received, if the project which caused the expropriation is not going ahead.
These are the cases:
- The administration decides to not go ahead with the project
- After two years from the occupation of the property from the administration without to make any work in the property.
- The project was developed but the function which fulfil the property now is not of “Public Utility”. For example, in the case of the AVE, the land was taken to make a Train Station, and now this Station is not used at all, the owner, or his inheritors, can use the right of re-acquire the property paying the compensation received for the expropriation (which would be updated to that time).
There are only two exceptions to that rule, in which the right of reversion cannot act:
- If the land does not serve for the use previously considered, but can be used for another “public use”.
- If the land is used for the public utility for more than 10 years.