Compensation for the imposition of a non aedificandi easement on the whole of the remaining section of a plot of land, the other part of which was expropriated in order to build a motorway
RULING Nº 612/2009
2 of December of 2009
The Expropriation Code rule that does not permit compensation for the imposition of a non aedificandi easement on the whole of the remaining section of a plot of land, the other part of which was expropriated in order to build a motorway, is in breach of the right to just compensation and the principle of equal contributions to public costs.
The fact that a combination of damaging effects (the expropriation of one part of a plot of land, and the loss of the construction potential in relation to the remaining part) were imposed on one landowner constitutes a specific reason which, in the type of situation addressed in this appeal, indicates that, for motives of justice and equality, the landowner ought to be able to make a concrete demand for compensation, given that the primacy afforded to the power to expropriate has had an overall effect on the economic function of the property.
The rule that fails to award the right to compensation for the creation of a non aedificandi easement, which is designed to protect a motorway and which covers the whole of the land that remained to the owner after the expropriation of another part, when the remaining part was classifiable as “land suitable for construction” before the easement was constituted, is unconstitutional.
The Public Prosecutors’ Office appealed against a decision in which the Guimarães Court of Appeal refused to allow the application of an Expropriation Code rule. Under that rule, the constitution of an administrative easement which affects the essence of the utility of a property by imposing exceptional burdens on it cannot be one of the reasons for the payment of compensation.
The administrative easement that was at stake in this appeal is a non aedificandi easement designed to protect the roads included in the national highway network. In the case in question the easement was created as the result of the construction of a motorway through one part of a piece of land, which was expropriated, but the easement itself was imposed on the remaining part, which was not expropriated and in relation to which, prior to the imposition of the easement, it had been possible to apply for planning permission for construction purposes.
Non aedificandi administrative easements are restrictions that are created by law, sometimes directly and on other occasions as the result of an administrative act. Their effect is to prohibit construction on certain plots of land, or else to place special conditions on building on those plots, because, or to the advantage, of the public interest of a thing with which those plots possess a relationship involving a shared border or a form of spatial proximity that is predetermined by law.
The case in question concerned a non aedificandi easement that affected the unexpropriated part of a piece of land, the other part of which had been the object of expropriation in order to build the road in whose favour the easement was constituted; according to the factors which the Expropriation Code itself says must be taken into account, the unexpropriated plot was classifiable as “land suitable for construction”; according to the facts determined by the lower court and the judgement of them contained in the ruling against which this appeal was lodged, subjection to the non aedificandi easement implied the total loss of this previous capacity for construction; in the decision against which this appeal to the Constitutional Court was brought, the Court of Appeal considered that this loss of value ought to be taken into account in the expropriation process.
According to the Expropriation Code, the attribution or otherwise of the right to compensation is not directly dependent on the constitution of an easement, but is instead linked to the nature of the losses that arise from the imposition of the burden. The right to compensation for administrative easements is always treated in the same way, whether they are constituted in the wake of an expropriation process or whether they are totally independent thereof.
The compensation is limited to the loss of the existing forms of usage, and the owner of the thing on which a burden has been placed is granted a right to compensation whose nature is more restrictive than that attributed to the owner of a thing that has been expropriated (the latter suffers a so-called “classic” expropriation in the form of the extinction of his title to the right to all or part of a piece of land and its “transfer” to a different subject with a view to achieving a public purpose). Apart from those cases in which the imposition of an easement takes all economic value away from the land or renders any use of it unfeasible, the owner of land that is burdened with a “non aedificandi” easement only has the right to receive reparation for the loss of value that corresponds to the concrete usages which were effectively being made of it when the easement was constituted.
Focusing now on the type of easement addressed by this case, whereas the “just compensation” for the expropriation of a plot of land (the “classic” form of expropriation, or expropriation of title to the property) includes reparation for the building potential that exists on the date on which the declaration of public interest is issued, the right to compensation as the result of the imposition of a legal “non aedificandi” easement only encompasses the current, effective usage that is taken away from the property on which the burden has been placed. As such, when such a plot is classifiable as “land suitable for construction” under the objective criteria whose application is required by the Code, in the event that at that time it was not currently and effectively being used with a view to construction (e.g. because construction was underway on it or, at the limit, planning permission had already been given for a construction or urban development project), it would not be possible to provide reparation for the burden (or more precisely, for the loss of value inherent in the imposition of the burden) that derived directly from the legal easement (associated with the construction of the motorway that justified the partial expropriation).
This was the normative treatment that the Court of Appeal’s decision not to allow application of the rule sought to avoid.
The question before the Constitutional Court was whether or not the Constitution guarantees compensation for the loss of value suffered by an owner whose property is subjected to a burden by the imposition of a non aedificandi easement that covers the whole of a portion of land which remained after the expropriation of another part of that property, when the remaining portion had previously constituted “land suitable for construction” and the reduction in utilitas rei is factually associated with an expropriation process. In other words whether, when the extinction of the right to property caused by that expropriation is combined with an essential decrease in the possibilities provided by the right to ownership of the remaining part of the land, thereby generating both an overall effect which is historically and functionally derived from the expropriation, and an overall diminution of the usages of the property, failure to pay compensation would imply a disproportionate compression of the right to property and a breach of the equality that ought to apply to the protection of that right.
Where this type of easement is concerned, we are in the presence of a singular limitation on the pre-existing, objective possibilities of using the land that entails a significant restriction on its actual use (loss of the whole of the existing status of suitability for construction). The effects of this restriction are equivalent to expropriation, because it causes the loss of a factor which adds value to the land and which, if the property were to be expropriated under the same circumstances, would necessarily be taken into account when the compensation was calculated. We must thus conclude that we are in the presence of a cost that especially affects the citizens who have been made the object of this burden. The latter implies the total, permanent loss of an existing option that was inherent in ownership of the thing (the suitability for construction which the remaining portion already possessed as land that had been classified as suitable for construction) – a loss which has been imposed for reasons involving the public interest. In the light of the principle that citizens must be treated equally when it comes to bearing public costs, it is justifiable for a landowner who is simultaneously the object of an expropriation and the imposition of a burden to be compensated for the corresponding loss of value.
As such, the Court held that the rule before it was unconstitutional.
The Ruling is accompanied by a concurring opinion from the rapporteur, who added that while he was in agreement with the finding that the rule was unconstitutional (naturally, because otherwise he could not have been the Ruling’s rapporteur), he personally felt that the Ruling should have gone further. In his opinion the Constitution requires the payment of compensation for the imposition of any administrative easement that causes special and abnormal (or serious) damage in the legal sphere of the owners of land that is classifiable as “land suitable for construction”, regardless of the additional circumstance of the convergence of a partial expropriation and the imposition of a loss in relation to the same piece of land (and the same subject).