Expropriation in the public interest under the extreme emergency procedure: what questions should an expropriated person ask?

Expropriation is a little-known area of law that is a source of frustration for many legal practitioners.

This is because this is an exceptional area of law and is also characterised by a strict procedure with a series of binding deadlines.

Nevertheless, expropriation is more topical than ever in view of the many expropriations currently being carried out in Belgium.

In writing this article, I wanted to draw the attention of those affected by expropriation proceedings in the public interest to a number of points that seem essential for the preservation of their interests.

This study does not claim to be exhaustive but aims, on the one hand, to enlighten the reader on the important events affecting the extreme emergency expropriation procedure and, on the other hand, to enable the reader to determine the attitude to adopt in the context of negotiations on the amount of expropriation compensation with the expropriating authority or, subsequently, in his or her dealings with the Justice of the Peace seized of the dispute in the case of extreme emergency legal proceedings.

1. What is meant by expropriation in the public interest?

a. Expropriation

The best doctrine defines expropriation as one of the means used by administrative authorities to dispose, in the name of the public interest, of property which does not belong to them but which is indispensable for the achievement of the aims they have chosen to achieve or which are assigned to them.

It is therefore a forced transfer of the right of ownership.

b. Cause of public interest

b.1. Expropriation order :

An expropriation order must be published beforehand to enable the expropriating authority to pursue an expropriation, if necessary, through the courts.

The rights of expropriated persons, such as landlords or other interested parties under a lease, are civil rights within the meaning of Article 144 of the Constitution, which give these persons, if they consider themselves to be wronged, the right to be heard by the courts of the judicial order, namely the Justice of the Peace of the canton where the property to be expropriated is located.

Consequently, only a judge of the judicial order, namely the Justice of the Peace of the place where the property to be expropriated is located, has the power to declare an expropriation, at the request of the administration, subject to the setting of a fair and prior compensation.

The forced transfer of a property right can therefore only be carried out by virtue of a judgment if there has been no amicable transfer between the expropriating authority and the expropriated person.

b.2 Judicial review :

Article 16 of the Constitution states that expropriation can only be decided on the basis of public utility. Public utility is therefore the justification for expropriation and is a condition of its legality.

The Justice of the Peace will therefore be obliged to check the factual circumstances that the public authority invokes in support of its application; he will therefore have to verify whether the facts put forward are accurate and can be analysed as constituting a public utility; this is a question of checking the material accuracy of the facts and their legal qualification.

In short, the judge is required to check whether the action has been properly brought, whether the forms prescribed by law have been observed and whether the plan of works is applicable to the property whose expropriation is being pursued.

2. Who can initiate expropriation in the public interest?

The applicable legislation on expropriation allows any public authority or public service to pursue expropriation in the public interest.

Thus, the State, the Communities, the Regions, the provinces, the municipalities, the inter-municipalities, the C.P.A.S., and even the S.N.C.B. have been granted this power.

However, it is important to clarify that only the administrative authority can take the initiative to initiate expropriation proceedings before the court.

The expropriated person cannot therefore take any initiative on this point.

3. What is an amicable transfer in the public interest?

The reader will be surprised to note that public authorities most often acquire the buildings they deem necessary for the achievement of their public objectives not by applying the judicial expropriation procedure but by concluding an amicable transfer resulting from an agreement of sale between the expropriating authority and the person who was in principle to be expropriated.

In the case of a friendly transfer, no prior judicial review is therefore provided for as it is simply a private sale.

The legal regime for amicable transfer therefore differs significantly from the system of expropriation in the public interest.

For example: expropriation is a unilateral administrative act, whereas amicable transfer is a contract of sale of real property which is governed by the provisions of the Civil Code; amicable transfer obliges the expropriating authority to pay a sale price and not an indemnity.

4. What are the procedures for expropriation in the public interest?

There are two different procedures for expropriation in the public interest: the ordinary procedure and the extreme emergency procedure.

The slowness and cumbersomeness of the ordinary procedure explains why it is hardly ever applied in practice and has fallen into disuse.

The extreme urgency procedure is therefore the procedure we propose to review, as it is the most, if not the only, procedure used at present.

The extreme emergency procedure is divided into several phases which can be summarised as follows.

a. The administrative phase :

This begins with the drafting of a reasoned expropriation order specifying that the appropriation of the property in question is essential to achieve the public utility objectives that the administrative authority has assigned to itself or that are incumbent upon it;

The expropriating authority must also justify the elements that allow it to consider that there is extreme urgency;

The owners of property located within the perimeter of the parcels to be expropriated must be personally notified in writing at their domicile of this expropriation;

b. The judicial phase:

In the absence of an amicable transfer, the administrative authority will have no choice but to initiate, at its own expense, legal proceedings before the Justice of the Peace of the place where the property is located in order to obtain a ruling declaring expropriation; this ruling will have to set the provisional compensation to be allocated to the expropriated party.

The judicial procedure will have to follow a strict chronology with the following main steps

• the expropriating authority shall deposit at the registry of the justice of the peace of the location of the property, in addition to the order authorising the expropriation, the plan of the parcels to be expropriated, as well as a request that the judge set the days and times on which the expropriator and the owners of the parcels are summoned to appear before the judge on the premises to be expropriated;
• within eight days, the judge shall fix, by order, the day and time of this appearance and appoint a judicial expert (generally a real estate surveyor) to draw up the descriptive inventory of the buildings and to value them;
• At least eight days before the date set for the appearance, the expropriator shall summon, by bailiff's writ, the owners to be present on the premises on the days and at the times set by the judge in order to attend the drawing up of the descriptive inventory of the premises; the summons shall mention, in particular, the offer made by the expropriator to the owner for the purchase of the property;
• Upon receipt of the summons, the owner is obliged to inform third parties interested in the expropriation being pursued, for example: his tenant;
• After hearing the parties, the judge verifies whether the action was properly brought, whether the forms were observed and whether the plan is applicable to the property whose expropriation is being pursued;
• the expropriated party must, on pain of forfeiture, raise all the objections he believes he should raise at once;
• the justice of the peace shall rule on the whole in a single judgment given no later than 48 hours after the appearance;
• if the administration is not rejected, the right of ownership passes to the expropriator by the effect of the judgment stating that the conditions and formalities prescribed by law have been observed;
• where the judge grants the expropriator's request, he or she will set the amount of provisional compensation to be paid by the expropriator by means of a summary assessment. The expropriated person should note that the amount of this provisional compensation may not be less than 90% of the sum offered by the expropriator; subject to an action for review, this judgment is not subject to appeal;
• the judgment is transcribed in the register of the competent mortgage registrar and has effects on third parties;

c. Entry into possession:

• by virtue of the judgment, the expropriator shall deposit the provisional sum fixed by the judge at the caisse des dépôts et consignations ;
• immediately after the appearance on the premises, the expert appointed by the judge establishes the descriptive inventory of the premises;
• the descriptive inventory of fixtures is deposited at the registry within 15 days of the appearance on the premises;
• the expropriator takes possession of the expropriated property after serving a series of documents on the expropriated party;
• As soon as this service has been made, the expropriating authority may ask the judge for an order to send the expropriated property into possession if the expropriated person does not voluntarily deliver the expropriated property;

d. Reasoned assessment and setting of provisional compensation :

• After the parties have appeared before the judge, the expert shall file a report with the court registry containing the evaluation of the compensation he proposes as well as all information useful for determining it;
• the judge shall fix the day and time for the appearance of the parties and the expert at his hearing;
• After hearing the parties and the expert, the judge shall provisionally determine the amount of compensation due for the expropriation;
• its judgement is not subject to appeal except for the action for revision;
• by virtue of the provisional judgment, the expropriator must deposit with the Caisse des dépôts et consignations the amount of the provisional compensation that exceeds the provisional compensation previously granted;

e. The possible review action :

• the provisional compensation fixed by the judge becomes final if, within 2 months of the date of dispatch of the documents, neither party has brought an action for review before the court of first instance.^eraCourt of the place where the property is located ;
• This review action is open to both the expropriator and the expropriated person and may result in a reduction as well as an increase in the provisional compensation awarded by the Justice of the Peace;
• It is not a remedy as such, although it looks like one;

5. What is meant by expropriation compensation?

Compulsory expropriation is not a sale and the payment of compensation cannot therefore be considered as the payment of a price but as full reparation for the damage suffered, namely an injury resulting from the removal of a property right.

The expropriation compensation must be fair, according to the Cour de Cassation: " To be fair within the meaning of Article 16 of the Constitution, the compensation must be equivalent to the amount that would be required to obtain a property of the same value as that of which the expropriated person is dispossessed. "The former Court of Arbitration, now the Constitutional Court, also recalled that ". to be fair, compensation must provide full reparation for the harm suffered. ".

This expropriation compensation must take into account the various losses suffered by the expropriated person.

The criteria for assessing expropriation compensation include the following:

a. The market value:

Even if the criterion of market value is legally and theoretically questionable, since expropriation compensation is not a sale price but compensation for damage, it is extremely useful and is used consistently in practice.

The market value is the sale value of the property, i.e. the sum that the expropriated person would obtain in the event of a sale under normal conditions; in other words, it is the price that the expropriated person could obtain for the expropriated property under normal sale conditions on the date of the judgment transferring ownership.

The most commonly used method of valuation for the market value of the expropriated property is the method based on points of comparison.

The judicial expert appointed by the Justice of the Peace should therefore attempt to draw up a list of similar properties that have been sold in recent years in a nearby geographical area and add to it the points of comparison submitted to him by the expropriating authority and the expropriated party.

The legal expert may only choose those points of comparison that have the greatest similarity with the property subject to expropriation.

Finally, the market value of the expropriated property may be determined on the basis of the tempered average of the discounted prices of the points of comparison.

b. Future value:

The future value is the increase in value which, for whatever reason and purely as a matter of fact, is likely to increase the present value of the expropriated property in the more or less near future.

It is added to the market value of a property when the points of comparison considered do not sufficiently contain the coefficient of appreciation characterising the lost property.

c. Convenience and affection value of the expropriated property 

Convenience and affection values express the specific value of a good for a particular person, over and above the common market value of that good.

Convenience value expresses the specific value of the property, such as appropriations or special amenities that are not of interest to the general public but are of concern to the expropriated person.

The affection value represents the subjective elements that lead a person to overestimate the value of his property in relation to its market value.

This is compensation for moral damage linked to uprooting or genuine disruption of the injured person.

In some cases, with detailed motivation, these values can be used to increase the estimated market value.

d. Compensation for the depreciation of the remaining portion :

It should be remembered that the expropriating authority may take the initiative to expropriate only part of the expropriated property.

If this is the case, and the expropriated person does not object to the partial expropriation, the compensation for depreciation of the remaining portion may be invoked by the expropriated person so that all the elements that modify the value of the rest of his property, in the event of partial expropriation, may be taken into account.

e. Replacements :

The expropriation compensation must also cover the costs incurred by the expropriated person for the acquisition of an equivalent property.

The reinvestment compensation is not intended to cover the costs previously incurred in acquiring the expropriated property, but rather the registration, transcription and other costs that the expropriated person will have to incur when he or she wishes to reconstitute his or her assets after receiving the compensation.

Replacements are calculated according to a percentage scale in relation to the amount of the expropriation compensation that is finally awarded to the expropriated person.

f. suspense interest:

This interest is intended to cover the damage caused by the fact that it usually takes time for an expropriated person to find a similar property.

The amount of interest and the waiting period is to be assessed by the expert according to the economic situation and the difficulty of finding a similar property.

g. movable allowances :

In the context of the expropriation of a building, the interesting movable compensation that can be claimed will relate, for example, to :

• moving costs, rental costs, advertising costs and fitting out costs;
• study costs ;
• the loss of an advantageous lease for the expropriated landlord

h. disturbances of professional or commercial activity :

Owners who carry out a professional or commercial activity in the expropriated building may, depending on the circumstances, suffer a temporary or permanent cessation of activity.

This disturbance of the business should be compensated by the expropriating authority on the basis of the profits declared to the tax authorities in recent years and could extend to the duration of the disturbance.

This compensation will generally be made up of the costs of moving, advertising, fitting out, loss of income or profits or the possible loss of customers.

i. judicial interests:

Judicial interest (calculated at the legal rate) means either default interest or compensatory interest. Compensatory interest is included in the expropriation compensation, whereas default interest, which runs from the decision setting the compensation until the day of payment, compensates for the delay in the execution of the court decision.

j. the costs of defence by a lawyer:

If the expropriated party hires a lawyer to represent him in the expropriation proceedings, the latter may request the application of the law on the repetition of costs and lawyers' fees of 21 April 2007 and its Royal Decree of 12 October 2007, which set the amount of procedural compensation to be paid by the party who loses the case.

In conclusion:

This brief study shows that expropriation in the public interest is legally complex and that the expropriated person must have the support of a technical advisor and a lawyer in order to assert his or her rights effectively.

Sadri ELLOUZE