Expropriation in the public interest
The concept of expropriation is known to us as a procedure whereby a privately-owned asset changes its legal status and becomes public property.
This forced transfer from the private to the public domain is carried out for reasons of public utility, with the consequence that the State pays the owner of the property a prior compensation corresponding to the market value of the expropriated property. Of course, the entire legal operation must be carried out under the legality control of the court.
The regulations governing expropriation for reasons of public utility are Law 33/1994, as general provisions of common law, and Law 255/2010, which contains special rules, more often applicable, especially in the field of infrastructure, in the case of massive expropriations.
Stages of the Expropriation Procedure
In short, Article 4 of Law 255/2010 provides for four distinct stages.
- a) approval of the technical-economic indicators of works of national, county, or local interest;
In the first phase, the stage of declaring public use is carried out at the national, county, or local level directly by law.
For example, whenever there is talk of motorways, public roads, greening and rehabilitation of the Black Sea coastline, etc., these works are recognized by law as being of public utility.
Thus, following the approval of the technical-economic indicators of the works of public interest, it is possible to start the necessary operations for the expropriation procedure of the buildings that constitute the “expropriation corridor” with the drawing up of the list of owners whose buildings are affected and all the technical details.
The location of the work will be made known by posting it at the City Council’s office or publishing it on the expropriator’s website and will be sent to ANCPI for approval.
- b) the recording of the individual amount of the compensation payment for the buildings forming part of the expropriation corridor and the posting of the list of the owners of the buildings;
The second stage is the establishment of the compensation provision, following the identification of the properties and their owners.
Thus, depending on the technical-economic indicators and the carrying out of preliminary surveys on specific areas, the amount available for the payment of compensation to the expropriated is estimated.
After receiving the notification of the intention to expropriate by post, the property owners must present themselves at the expropriator’s premises within 20 days to determine the actual compensation.
Unfortunately, in practice, this stage is marked by numerous errors, injustices, and disproportionalities, often leading to a series of disputes.
- c) transfer of ownership;
The third stage is the issuance of the expropriation decision, the main consequence of which is the transfer of ownership.
It produces direct and immediate effects, constituting an enforceable title.
If necessary, a time limit for the release of the property is granted which may not be less than 30 days.
- d) completion of the formalities related to the expropriation procedure.
The last stage concludes the expropriation procedure by establishing the last formalities necessary to carry out the procedure legally.
Rights and Obligations of Participants in the Expropriation Procedure
Throughout the procedure, both the expropriator and the expropriated have correlative rights and obligations.
Firstly, all expenses incurred in connection with the expropriation are borne by the expropriator.
Moreover, the expropriator is obliged to notify and comply with all steps to provide the necessary information to the property owners in due time.
With regard to compensation, the expropriated party has the right to consult all documents containing the offer of compensation and the plans of the land and buildings proposed for expropriation.
Subsequently, in agreement with the expropriated party, the expropriator determines the amount of compensation to be paid following expropriation.
It is important to note that the calculation of the amount of compensation takes into account both the actual value of the property and the damage caused by expropriation to the owner or other persons with real rights in the property.
Finally, if the compensation is not fair and there is a clear disproportionality between the expropriation offer and the real price of the property, the expropriated party can ask the court to fix the compensation.
From the moment of the communication of the decision establishing the amount of compensation, if the expropriated person considers himself injured, he has the right to bring an action before the competent court within the general limitation period of 3 years, otherwise his right of action is extinguished and the action lapses.
With reference to real rights (ownership, usufruct, easement, habitation, concession, etc.) stipulated on the expropriated property, as a rule, they are extinguished with the expropriation, the only exception being easements which are still compatible with the public utility work. However, the situation is different as regards accessory rights.
For example, the mortgage established on the expropriated property, following the expropriation, will not follow the legal situation of the property, but will be transferred to the related compensation, because the expropriator receives the property free of encumbrances.
If the expropriated property is an inhabited space, the persons who are in the building, either as owners or tenants, will not be able to be evicted unless the expropriator provides them, on request, with another living space.
Termination of Public Utility Case
However, there is also the possibility that the expropriated buildings were not actually used for the purpose for which they were taken into public ownership, for various reasons.
In this situation, the former owners have a right of retrocession and a right of pre-emption, explained by a priority over other buyers if the expropriated property is put up for sale.
Also, in order to be able to enforce their rights, the expropriated have the right to be informed by the expropriators about the dismantling of the property.
Unlike pre-emption, which involves the authority’s decision to sell at any time it finds that the expropriated property is no longer of public utility, the former owner can only request retrocession if, within 1 year of expropriation, the property has been dismantled and has not been assigned another public utility.
Retrocession involves the reverse of expropriation, where the former owner asks for the previously expropriated property to be returned to him (whether or not the administration has decided to sell it) on condition that the compensation is returned but at an updated market value.