Expropriation and De Facto Taking

Two separate questions

An expropriation file almost always contains two questions that follow different routes and different deadlines.

Is the decision lawful? Whether there is a genuine public interest, whether the correct procedure was followed, whether the area taken exceeds what the project needs. This is a matter for the administrative courts and the deadline is short: thirty days from service of the decision on the owner, under article 14 of Act no. 2942.

Is the price right? If no agreement is reached at the negotiation stage, the administration applies to the civil court of first instance where the property is located for determination of the price and registration in its name. The court appoints experts and fixes the value.

Missing the thirty-day deadline does not end the file: the owner can still contest the valuation in the price determination proceedings. But the lawfulness of the decision itself can no longer be argued.

How the value is fixed

Act no. 2942 sets out what the experts must take into account: for land, the objective criteria of position, area, shape and zoning status; for agricultural land, the net income capitalised. The valuation is made as at the date of the expropriation decision.

The points most often contested:

• Zoning status. A parcel valued as agricultural land when the zoning plan already designated it for building is undervalued, sometimes by a wide margin.
• The comparison parcels. Experts must compare genuinely comparable sales; comparisons drawn from distant or differently zoned parcels are challengeable.
• Partial taking. Where only part of a parcel is taken, the loss in value of the remainder must be compensated as well. This head of claim is frequently left out of the first report.
• Structures, trees and crops on the land are valued separately from the land itself.

De facto taking without process

Where the administration has physically occupied land - a road built across it, a facility put on it - without expropriating it and without paying, the owner may bring an action for de facto taking (kamulaştırmasız el atma). Depending on the facts the owner may seek removal of the interference, or the value of the land against transfer of title, together with compensation for the period of unauthorised use.

There is also legal de facto taking: the property is not physically occupied but the zoning plan reserves it for a public use, such as a school or a green area, and the administration neither expropriates nor releases it. The owner cannot build and cannot realistically sell. This situation has its own procedure and its own conditions.

What to do when a notice arrives

1. Note the date of service. The thirty-day period runs from it.
2. Obtain the expropriation file: the public interest decision, the valuation report, the map of the area taken.
3. Have the zoning status of the parcel checked independently of the administration's file.
4. Attend the negotiation stage, but do not accept a figure before an independent valuation.

Agreement at the negotiation stage is not always the wrong answer: it is faster and it avoids costs. It is the wrong answer when the offered figure rests on a zoning designation that is out of date.