Expropriation procedure

Verified 25 November 2020 - Directorate for Legal and Administrative Information (Prime Minister)

Expropriation is a procedure that allows a public person to compel an individual or legal entity to dispose of their real estate, in return for the payment of compensation. To be able to use expropriation, the public person must follow a procedure that takes place in two stages: an administrative phase and a judicial phase.

Expropriation is most often carried out on behalf of a public person (State, local and regional authorities...).

The expropriation contributes in particular to the realization of public works (social equipment, sewerage networks...) and urban development.

The expropriation must follow a procedure that takes place in 2 stages:

  • One 1re preparatory administrative phase during which the public person must demonstrate the public utility of his project
  • One 2e judicial phase to ensure the transfer of ownership to the public person and the payment of compensation to the expropriated person

FYI  

between the decision to launch an expropriation procedure and the completion of the transfer of ownership, a very variable time can take place (from less than 1 year to several years).

Property that can be expropriated is property owned by private persons (individuals) or corporations (e.g. businesses).

They concern properties (houses, land...), and the rights of use that accompany them (usufruct, bondage ...).

The expropriation may involve all or part of the property.

Expropriation can only take place if it is in the public interest.

The Judges consider that this condition is satisfied if the following three conditions are met:

  • The project is really justified
  • The project cannot be avoided (the use of expropriation is in fact possible only after all the other solutions have been put in place, such as amicable acquisition, right of first refusal)
  • The damage to the property of the person expropriated is not disproportionate to the objective pursued

Expropriation is generally considered to be in the public interest when it concerns the following operations:

  • Creation of municipal subdivisions
  • Creation of green spaces
  • Establishment of educational or hospital establishments
  • Road Improvements

The administrative phase takes place in 2 stages:

  • One phase public inquiry intended to inform the public
  • Then, a phase parcel survey allowing the owner concerned to be identified and to know exactly to what extent his property will be affected by the expropriation

These investigations last a minimum of 15 years calendar days each.

Opening of the public inquiry

The public inquiry is based on a file transmitted by the public person to the prefect. This package includes elements to inform the public. These are:

  • Project Explanatory Memorandum
  • Project Status Plan
  • Scope of the goods to be expropriated and summary estimate of the acquisitions to be made

Once the file has been forwarded, the prefect issues an order that opens the public inquiry.

The investigation is conducted by a Commissioner-Investigator appointed by the Chairperson of the Administrative Tribunal.

The opening of the investigation is mentioned in the local newspapers published in the department and is posted in the town hall where the project is to take place.

It shall indicate the times and place at which the public may acquaint themselves with the file and make comments on a register opened for that purpose.

Who shall I contact

Delivered the act declaring the public utility (DUP)

Based on the results of the investigation by the Commissioner-Investigator, if the public utility of the project is identified, the Prefect issues a declaration of public utility (DUP).

This document must be displayed in the town hall concerned by the project. The day of posting serves as a point of departure for interested parties to challenge the UPD and engage a appeal to the Administrative Court (AT).

Initiation of the parcel investigation

The piecemeal investigation is based on a file transmitted by the public person to the prefect. This file includes a precise plan of the parcels to be expropriated.

Once the transmission of this file, the prefect makes a decree that opens the parcel investigation.

The investigation is conducted by a commissioner-investigator appointed by the prefect.

The public person must personally inform the owner of the property of the initiation of this investigation by registered letter with acknowledgement of receipt.

Making a transferability order

In the light of the results of the investigation by the Commissioner-Investigator, the Prefect may declare the parcels transferable by issuing a transferability order.

The decree is published in the departmental register of administrative acts and notified to the owner of the property by registered letter with acknowledgement of receipt.

This compendium can be consulted in particular in the town hall or on its website.

Who shall I contact

Transfer of ownership

Once the expropriation project has been declared in the public interest and the transferability order has been notified to the owner of the property, the transfer of ownership may take place.

This transfer of ownership can be done by mutual agreement between the public person and the expropriated person. In the absence of an agreement, the public person may refer the matter to the expropriation judge who issues an expropriation order.

This order shall be notified to the expropriated person by registered letter with notice of receipt.

The effect of the expropriation order is to legally transfer ownership of the property and the rights in rem in immovable property (usufruct, servitude, etc.) from the expropriated person to the public.

At this stage, the expropriated person can therefore no longer sell, make a donation or constitute of mortgage on the good.

The lease signed by an occupying tenant also ends.

On the other hand, as long as he has not been compensated by the public person, the expropriated person retains the enjoyment of the property. Thus, for example, if the property was rented, the tenant must pay not rent, but an occupancy allowance to the expropriated until his departure.

Offer of compensation

The public person must offer compensation to the expropriated person. This offer must be made by registered letter with acknowledgement of receipt or by act of the Commissioner of Justice (former bailiff and judicial auctioneer).

From the receipt of this letter, the expropriated person has 1 month to inform the public person, by registered letter with notice of receipt, of his acceptance or the detailed amount of his request.

As soon as the transferability order is issued, the expropriated party may also give formal notice the expropriator to make an offer of compensation. If there is no reply within one month, he may refer the matter to the expropriation judge.

In the absence of an amicable agreement, the expropriation judge must be asked by either party to fix compensation.

Please note

the public person must also offer compensation to the occupying tenant and offer him an alternative accommodation, at least 6 months before his departure.

Nature of compensation

The compensation must cover all direct, material and certain damage caused by the expropriation.

This compensation includes a principal compensation which corresponds to the value of the property expropriated on the date of the decision of 1re instance.

The principal compensation allows the former owner to acquire property equivalent to that which he owned.

The material elements of the property are, however, fixed at the date of the expropriation order, which excludes the consideration of improvements of any kind since the order. For example, a fence, a garage, plantations.

Other ancillary compensation may be paid, for example in the case of partial expropriation of the property if the remaining part is not usable under normal conditions for its owner.

The public person has 1 month after the payment of the compensation due to the expropriated person to take possession of the property. After this period, the occupants may be expelled.