Eminent Domain: Compulsory Property Acquisition Process

Understanding Expropriation

Expropriation is an act of public law under which the State or an individual, after payment of compensation in an eminent domain case, acquires an estate. A case of this nature typically requires:

• A declaration of public utility or social interest.
• An agreement between the administration and the administered party.
• A fair price (just compensation).
• Payment of indemnities.

Processing and Basic Documentation

For a case of this nature, the processing and basic documentation include:

1. A base project, which must be ordered by a superior authority and written by a competent professional in the matter. The project should include:

   • A specification of the object to be achieved, with its location, enumeration, and analysis of alternatives.
   • Choice and justification of the most suitable option.
   • Description of the parties it covers.
   • Justificative calculation.
2. Plans and necessary details to establish the graphical and numerical definition of the work.
3. Particular theoretical statement of requirements for the contract, description of work to be done, quality and characteristics of materials used, manner of execution, tests, trials, and expected results.
4. Integrated budget or several partial budgets, expressing unit prices for each unit of work and resulting reviews.

The project must have received final approval from the oversight office, proving that it aligns with the superior's order and observes the rules and regulations of the Technical Annex. Expropriation documentation should also contain:

• The origin and characteristics of the base map used to display the status of parcels.
• The sources of information used in determining the affected properties and the identification of owners.
• The criteria for assessment and valuation of the affected assets.
• The plot plan of the parcels affected by the proposed works. This must be made with precision and detail that permits:
  1. Define the shape and dimensions of the edges and angles of each parcel.
  2. Identify their position on the terrain.
  3. Know the plots adjacent to each edge.
  4. Measure the surface area of each plot with sufficient precision for pre-valuation.
  5. Number each plot, both cadastral and in the order of the record to be opened.

This plan may come from a survey specifically made for this purpose or an existing photogrammetric survey organized for the same purpose. The plan must be made to a scale that allows reliable measurements of boundary lengths or distances on the surface, as well as aerial measurements.

Affected Goods and Rights

In relation to the range of goods and rights affected by the expropriation, this should be done concretely and individually, and must provide:

1. The expropriation order number in the record to be opened.
2. The registry identification number of the polygon and plot.
3. The name of the owner of the affected plot or good.
4. The extension or full farm area and the part thereof which shall be subject to expropriation.
5. Classification and grading of affected land or goods.
6. The number of each affected parcel or right.
7. Land Parcel Identification Number of each parcel, the estate, and the municipality to which it belongs.
8. Name of the owner or owners of each plot, good, or affected right.
9. Partial area subject to expropriation.
10. Ground score by type, e.g., rustic use, undeveloped land, or urbanistic rating.

The information necessary for this process is usually acquired from the following offices and services, or through direct on-site inspection:

• Provincial Delegation of the National Geographic Institute
• Rural or Urban Cadastre of the Delegation
• City Council
• Chamber of Agriculture
• Land Registry

Urban Expropriation: General Procedure

The act of occupation will extend to the record of payment, accompanied by proof of it, or in case of deposit. This minute, in order to fulfill such condition, must meet the registrable title requirements contained in mortgage regulation and forced expropriation.

It is the expropriating entity or the beneficiary who is responsible for seeking the necessary public registration for the transmission or establishment of rights that has taken place due to the forced expropriation. In the case of immovable property or real rights over them, this inscription should be in the Property Registry.

If the property is not registered, initial registration (inmatriculación) must be practiced, as contained in Rule 62 of expropriation in relation to public domain. If property expropriation relates to the domain of a property, the corresponding transmission must be registered in accordance with the aforementioned Articles 8 and 52. The cancellation of charges, levies, and real rights affecting the expropriated property must be verified, except those compatible with the purpose of expropriation.

In the event that the holder of the property was the beneficiary of the expropriation, the expropriated right would be canceled. In other cases, this expropriated right would be recorded in the name of the beneficiary.

We refer to the general procedure in which recordable entries leading to expropriation acts are regular, meaning the final registration of ownership of the expropriated property. When an expropriation emergency has been declared, it is possible to practice a notation aimed at publishing the initial occupation of the expropriated property, as provided in Article 60 of the rules of eminent domain.

Outline of Property Acquisition and Occupation

The outline for property acquisition and occupation is as follows:

1. First, identify the expropriating administration (e.g., the council). A duplicate of the record and the national expenditure of the expropriating entity should be made.
2. Then, verify the warrant record in the management of the said warrant, remitting payments to the provinces to target payments.
3. An announcement will be made in the Official Gazette of the Province (BOP) with payment advice to the Mayor, including a statement of payment for interested parties to verify.
4. Finally, the act of setting will establish deadlines for removal, providing relevant communication to stakeholders. This will be followed by the act of occupation and, finally, registration.

Glossary of Expropriation Terms

Who is the Expropriating Entity?

The expropriating entity possesses the power of expropriation; it is the active subject of expropriation. For identification, prerequisites must be established:

• The expropriating entity must be endowed with public power, meaning a legal entity capable of holding such powers.
• Second, if the expropriation is being performed for reasons of public utility or social interest, the expropriating entity must be responsible for one of these areas.

Who will be Expropriated?

This is the person who must bear the expropriation, whose rights are affected by the acts of expropriation. They are a necessary party to the expropriation file and should receive the just compensation.

In urban expropriations not always motivated by dereliction of duty, the acting administration could satisfy the just compensation through an equivalent award located in the same distribution area as the expropriated property.

What is the Valuation of Expropriation?

The valuation is the core of the expropriation proceedings. It represents the conversion of rights and is conceived as a guarantee representing the replacement value of the expropriated asset.

Land laws provide for the payment of just compensation through the award of equivalent land situated in the same distribution areas as the expropriated property. By agreement with the affected party, land located outside that area can also be awarded.

For this, fair price management can apply the procedure "jointly or individually appraised." The fair price for expropriation of lands included in an execution unit, which will be developed by the expropriation system, must be determined according to its urban value.

What is the Act of Occupation?

This is an administrative document that extends below the record of payment, and with it, the title is to be registered for the transfer of property by expropriatory act. Once the minutes are recorded after removal of occupancy, it means that the administration has acquired the property or properties free of charge.

Once this act is lifted and interested third parties appear who were not taken into account in the record, they retain and may exercise any personal actions they are entitled to, such as receiving expropriatory compensation or even discussing the amount.

What is the Record of Payment?

This is a formal administrative document that serves as proof of payment of just compensation in forced expropriation. Upon reaching the record of payment of just compensation, it only proceeds to become effective if a registration certificate in favor of the concerned parties is not booked on the record, or if the rules of the mortgage note or other securities evidencing the right, or certifications completed by the property registry concerning the same property described in the titles, are not extended.

If there are any charges, their holders should be notified. Where such records contain pronouncements contrary to reality, the valuation could be paid to those who had corrected or invalidated them by any means the mortgage law states, through an affidavit.

What is the Reversal of Urban Expropriation?

This is a real administrative right for expropriation acquisition, whereby the owner who was deprived of an urban property could regain the property if the justified urban deprivation was not performed. If the expropriation, which legitimately deprives property or rights for a public purpose or social interest and meets formal requirements, does not fulfill its specific purpose, the expropriated party can reclaim it.

Reversal is not possible when any of the following circumstances occur:

• The new use was also assigned public or dotational. For these purposes, public dotational use is equivalent to qualifying for housing under a public protection regime, with the administration maintaining ownership of the affected land.
• The dotational use that justified the expropriation has been effectively implemented and maintained for eight years.

What is the Expropriation Penalty?

This occurs when the application of forced sale for breach of the social function of property is not opted for. This situation can apply due to disregard of the deadlines established for the development of land and buildings, or in general, of the basic duties set out in the Building Code, or in cases of legal subdivision on undeveloped land or land designated for development.

In such cases, the valuation of the fine amount is imposed by the courts, ultimately by eminent domain bodies established to define controversies regarding the fixing of just compensation. Although they physically perform functions of an expert assessment, fixing judicial decisions, and deciding a dispute, their nature is not expert but purely administrative or judicial.