Week 5 - Regulation, Expropriation, Land Law | Quizlet

types of property (3)

1. private property

2. state property

3. common property

private property

Owned by an individual, includes: the right to use, the right to transfer, the right to exclude, right to the property's value

Pros:

- security of tenure (e.g. protects against trespassing)

- incentive to invest (e.g. farm land, allowed to collect own harvest)

- economic development

Cons:

- externalities (damage you do to other people by exercising your right without paying for it – e.g. emissions, pollution)

- inequality

state property

State owns all the land (e.g., urban China & England)

- Less extreme: nature, essential resources, and Infrastructure

- Legal implementation: Res extra commercium (public infrastructure that the state cannot arbitrarily sell, special procedure needed to turn it into private property)

Pros:

- Land available for capable state and infrastructure;

- Land available for everyone (e.g. public parks, historical sites)

Cons:

- Prone to inefficient management;

- Prone to cronyism.

common property

Owned by a community (takes care of it and establishes rules), beyond the market and state

- to the outside like private property because entails rules on:

- How much can be used?

- Enforcement?

e.g. Common hallway/stairs of a building with multiple tenants

antithesis of property

Concept of 'open access' - no property regime applies

Pro:

Availability for everybody

Con:

‘Tragedy of the Commons’ --> incentive to over-consume, threat of depletion (e.g. pollution, over-fishing, etc.)

private property law

Relationship between: Person A <--> other Persons (Person B, third parties etc.)

- Ownership, limited property rights

relationship between private property law and public law

Regulating externalities of private property law / balance between private and public interest

Relationship between: Person (owner) <--> Public Good

- Imposes certain obligations on the owner to make sure the public good is taken into account

creation of private law

(relationship between private property law and public law)

Public law creates (private) property law so;

- Property is only a 'castle' (refers to strength of property rights) if the legislature says so

- The laws must serve a legitimate aim

- Their impact on property must be proportionate.l

art. 1(2) 1st protocol ECHR

[The protection of property] shall not [...] in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.

= Clear mandate for the state to limit property in public interest (e.g. COVID 19)

law v politics

· Boundaries to politics

· Lawyers decide what is legitimate, proportionate

public law regulation of property law

= Definition of the Content and Limits of Property

includes

• Spatial plans (zoning) --> municipality designates what piece of land is to be used for what

• Building requirements --> new building to comply with certain rules (e.g. monument laws)

• Emission standards

• Municipal pre-emption rights --> e.g. when a farmer wants to sell his property, has to offer it first to the municipality

examples of private law regulation

Art. 3:13 BW --> Abuse of Right

Art. 6:162 BW --> Tort law

Art. 5:37 BW --> Nuisance

purpose of zoning

art. 3:13 BW

(Abuse of right of ownership)

1. the holder of a right may not exercise it to the extent that its exercise constitutes an abuse

2. Amongst other things, a right is abused where it is exercised for the sole purpose of harming another or for a purpose other than that for which it was granted or where its exercise was unreasonable, given the disproportion between the interest in its exercise and the harem caused thereby

- right is abused when you do disproportionate harm to others (outweighs the benefits)

- e.g. Belgian case on person wanting to cut down tree in his garden, neighbor said no, gives shade (SC said climate adaptation does matter and should be taken into account even under private law – abuse of right

art. 6:162 BW

(Tort claim)

1. A person who commits a tort against another which is attributable to him, must compensate any consequential loss suffered by the other

2. except where there are grounds for justification, the following are considered as torts: the violation of a right and an act or omission breaching a duty imposed by law or a rule of unwritten law relating to proper social conduct

3. a tort is attributable to the tortfeasor...

e.g. state obligation to reduce omissions (Urgenda case had its basis in private law)

art. 5:37 BW

(Nuisance - should not disproportionately annoy your neighbour)

An owner of property may not cause nuisance to owners of other properties to an extent or in a manner which is unlawful pursuant to art. 162 of book 6, for example by the emission of noise, vibration, foul odours, smoke or gasses or by depriving other owners of light, air or support

e.g. case law on noise of chickens and a rooster: Damages of 31k

excessive regulation of property

2 types of interferences:

1. Regulation (deprivation) of property

2. Expropriation

negative obligation of the state not to limit property (in an excessive manner).

regulation of property

interference with the use, enjoyment or exploitation of private property (e.g. factory owner only allowed to emit and certain amount of CO2)

rationale: police power (state has the power to regulate property)

types of regulation:

1. generally excessive regulation

2. individually excessive regulation

generally excessive regulation / test for police power

1. statutory basis (i.e. legal act, no arbitrariness)

2. legitimate aim (interpreted very leniently, not up for the court to decide but for the state to decide what it wants to acheive)

3. Proportionality

--> 1. measure is suitable

--> 2. measure is necessary

--> 3. proportionality in the narrow sense (balancing of interests)

all fulfilled? - the regulation is valid and NO compensation for a generally proportionate regulation

proportionality test generally excessive regulation

1. measure is suitable:

- is the measure capable of achieving the legitimate aim?

2. measure is necessary:

- is there an equally effective alternative? Is this equally effective alternative less invasive than the proposed measure?

- i.e. there should not be a less invasive measure / less impactful on property rights

- NOT the position of the court to see if there are any other option (court will not propose a new regulation; the measure chosen is a political matter)

3. proportionality in the narrow sense (balancing of interests)

1. Identify what the interests are on both sides (in favour of the legitimate aim vs those affected, directly or indirectly)

2. Draw a conclusion

public health as legitimate aim

rule of thumb:

public health will outweigh economic interests / financial difficulties (step 3 - proportionality in the narrow sense).

individually excessive regulation

1. individual burden

1. relatively small group of people --> small identifiable sub-group (N.A. to a single person)

2. suffering more harm than others --> affected more than the general group (e.g. pig farmers vs general group of farmers)

2. Excessive burden

1. disproportionate --> Burden so high that it would be unjust not to compensate (e.g. bankruptcy, large financial problems)

2. beyond normal societal risk --> beyond risk or costs we have to bear simply because we live in a society, e.g. extra costs on fuel

3. Reasonability question – reasonable to bear the burden?

Both conditions fulfilled: individually excessive regulation, compensation can be claimed

compensation generally vs individually excessive regulation

General: the regulation is invalid but no compensation

Individually: compensation

NOT mutually exclusive: where a regulation is deemed to be individually excessive this does NOT affect the general validity of the regulation

- measure can be both valid for the general group but be individually excessive for a small group of people

expropriation

unilateral state action whereby the State acquires property rights in order to use the land for a public purpose.

- in return get compensation

infringement of property rights? --> state acquires someone else’s (rights on) land against their will

- therefore subject to constitutional and/or statutory requirements that are meant to protect the owner from arbitrary expropriation

legal basis for expropriation

sovereingty of the state (e.g. NL)

constitution itself (e.g. Ger)

general requirements expropriation

1. Unilateral state action --> implies that the state acts without consent of the owner (e.g. by an administrative decision or act of parliament)

2. State acquistion of property rights --> implies that the owner loses (a part of) their property rights and the state acquires those property rights (which is mostly reflected in the land register)

3. Public purpose --> implies that it is the goal of the expropriation to use the property for a certain project

· In many cases, the state will first negotiate with the owner and, should the owner refuse to sell the land voluntarily and should there be no other suitable land available, resort to expropriation

actors in expropriation

1. the legislator --> can prescribe the purposes for which the state can expropriate land, proecdure that must be followed, compensation etc.

the broader the purposes in the expropriation statute are phrased, the more freedom the authority will have in acquiring land by means of expropriation.

2. administrative authorities --> Planning phase, expropriation phase; decision to expropriate the land for that project

3. courts --> review the decision to expropriate the property

expropriation test

Requirements for lawful expropriation:

1. statutory basis (i.e. legal act, no arbitrariness)

2. public purpose (legitimate aim)

- economic development is a public purpose: Kelo v City of New London

- As long as the gov can indicate some form of public benefit (e.g. creation of new jobs, investment)

3. proportionality

1. suitability --> measure capable of achieving the legitimate aim? (expropriation provides access)

2. necessity --> is there an equally effective alternative? / is more land being expropriated than necessary? (e.g. has negotiation been pursued)

3. Proportionality in the narrow sense (balancing of interests)

4. compensation

compensation criteria expropriation

(step 4)

market value (objective value) as starting point;

- Lost profits? – compensated in NL

- Moving costs?

- Subjective value (emotional attachment)? – N.A in NL

- Non-pecuniary: Indignation? Humiliation? - N.A. in general

exproriation case law

Kelo v City of New London

· Pfizer wanted to build facilities in City of New london

· Potential for economic development

· home owner Kelo was supposed to be expropriated

· SC said economic development is a public purpose

Kelo-like cases:

· Bartsch, [2010] ZAFSHC 11;

· Royal Decree (NL) of 8 July 2010,

· “Leiderdorp”, Staatscourant 2010, 10742. --> expropriated for an ikea

Kelo v city of new london

economic development is a public purpose

- plan was prepared in a thorough and participatory procedure.

- envisaged a business park around the construction of a new facility of Pfizer

- goal was to create employment, increase revenues, and revitalise the economy of New London, which had been in decline for years

- build research and development office space and provide parking or retail services.

Bartsch case (South Africa)

·

economic development is a public purpose

- The Free State High Court had to decide whether the construction of a private shopping complex could justify an expropriation

- expropriation served to connect a municipal road to a national freeway and secondarily to build a shopping complex along a certain part of the new road

- The shopping complex would provide strategic economic advantages to the municipality in the form of greater financial returns, which would then result in a healthier and wealthier environment.

leiderdorp case

economic development is a public purpose

- expropriation for an IKEA

- As the project supports the fiscal and economic policies of the municipality, there is also a sufficient public interest….

what is not considered a public purpose (expropriation)

· Private purposes like benefitting a private business

· Acquisition of land for no other purpose than increasing the assets of the state

· Uncertain future projects

examples of less intrusive measures (expropriation)

· Purchase on the private market --> voluntary transactions are seen as less harmful and more efficient than expropriation (authority first needs to try to buy the land from the owner / there must be a reasonable attempt to purchase the land)

· Too much land --> expropriation of more land than is necessary for the chosen project

· Less invasive legal means --> contractual obligatons for the owner not to impede the implementation of the projects or limited real rights such as servitudes, right of leasehold

· Self-realisation (Dutch law) --> the expropriatee argues they are both willing and able to implement the project themselves (according to the wishes of the municipality). Then expropriation is not necessary.