Land Grabbing Causes |
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Land grab or expropriation is the “transmission” of property ownership from an individual to the Public Administration, which can appropriate particular real estates regardless the consent of the owner. Regulated by an Act of December 1954 and a Decree of 1957. The consequences of the land grabbing are that the owner must grant the claimed estate when there is legal reason. The Land Grab Act establishes that expropriation must be decided by the National State, the Autonomous Community, and the Province, the Island or the municipality. It is the most absolute manifestation of Public Power. In order to a land grabbing to be executed it is essential to have the previous declaration of “Public Utility” or “Common Public Interest” of what is going to be expropriated. This means the existence of a conflict between the public and the private interest. If that conflict does not exist, the operation is illicit and therefore can be challenged. The Land Grab Act passed more than 50 years ago, and therefore many provisions have been modified for their adaptation to new times. Which goods can be expropriated in Spain? Works of Art, real rights, shares, securities, franchises and any other good which may have public utility when the occupation is declared as necessary. It means: any kind of private property or legitimate proprietarial rights or interests. Procedure: When facing a land grabbing process, the Public Administration needs to follow determined essential steps which start with the declaration of “public utility” or “Common Public Interest” of the estate. This needs to be produced by Law of by agreement of the Council of Ministries, excepting in those cases when the land or estate are “essential” for the Administration to carry out their projects. In this case, the public interest is considered as implicit and the Public Administration just needs to make a list of goods or rights to be expropriated, which will be published in the Spanish Official Gazette- BOE (Boletín Oficial del Estado) - , in the Provincial Official Gazette and in one of the most distributed newspaper in the province. A fifteen days deadline for public information will start then, during these fifteen days, anybody is allowed to bring written evidence for the rectification of any errors in the published list and to present an opposition. Once this period is finished, a new one of 20 days will start for the administration to peruse and classify every opposition writing which has been presented. Then the “need of occupation” is declared, which needs to be published and individually notified to all the interested parties. It is very important that these individual notifications are produced according to the Law as even when the expropriation cannot be opposed, the owners can appeal before the administration itself or before the Contentious- Administrative Courts against the “declaration of public utility” or the proved need for occupation. The evaluation of the expropriation Once the expropriation is confirmed, the owner has the right to receive a compensation which is known as “fair price”. That amount is settled after the valuation of the goods or rights, taking into account the value of them at the initial expropriation stage, and can be amicably settled by the parties in a 15 days deadline. If an agreement is reached, the compensation is paid. On the contrary, if a settlement or agreement is not reached, a new period of 20 days is open, so that every individual owner can present a valuation. The Public Administration can either accept or deny the valuation made by the owner, if this is accepted, the file is concluded and the payment to the owner is made, if it is denied, a new valuation will be sent to the owner for decision within 15 days time. If there is still no agreement, the file will be sent to the Provincial Jury for Expropriations, who will decide on the fair price. This decision can be appealed by the exowner before the Courts. The main right of the grabbed owner is to state his disagreement towards the Administration. If the Administration does not produce a final evaluation within 6 months since the beginning of the expropriation file, an extra compensation to the owner will be due (consisting on legal interests accrued within that period). If the compensation is not paid within 2 years after the evaluation, a new appraisal will be done. Another land instead of a financial compensation can be given to the owner as “fair price” if that is preferred by him or if the Administration decides it so. Right of reversion The expropriation process can last for several years till the valuation is finally agreed or imposed. The General Building Act of 1999, created the “ reversion right” by which the owner, pays back the fair price to the Administration, and get back all or part of what it was grabbed, when the work or the service who caused the expropriation is not finally made or established. There are two exceptions to the right of reversion: - When simultaneously to the desafectation (disappearance) of the reason which justified the expropriation, a new reason or aim of public utility or common public interest is agreed. - When the reason which caused the expropriation is maintained for ten years since the end of the work or the service which was established. In the first of the above mentioned cases, the Administration needs to make public the substitution so that the ex owner/s of his heirs can present allegations for the defence of their right of reversion, in the cases when they consider that the legal requirements are not met, or even to request the updating of the compensation, if the initially planned work or service has not been carried out. Also, if the land which was expropriated changes its classification, i.e. - was grabbed as non-urban and it is reclassified as urban, the exowners have the right for reversion too. Regarding deadlines, the original owner or his heirs has three months to exercise the right of reversion, these three months deadline starts when the Administration notifies the excess of expropriation, the desafectation of the expropriated rights or goods, as well as the purpose of not executing the work or not establishing the service. The jurisdiction which needs to decide on the reversion is that under which the Administration who owns the land or right at the moment of the request for reversion is submitted. |
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