The Flemish Expropriation Decree and its implementing Decree entered into force on 1 January 2018. The Flemish legislator confirms the traditional expropriation conditions and introduces some important procedural changes, including abrogation of the prior authorisation requirement for certain authorities and the introduction of a single judicial procedure before the Justice of the Peace.
Context
Before the entry into force of the Flemish Expropriation Decree, expropriation throughout Belgium was regulated by several federal acts. The Federal Expropriation Act of 27 May 1870 regulated the administrative phase, whereas three other acts dealt with the judicial phase (the Ordinary Expropriation Act of 17 April 1865, the Expropriation Act for Urgent Circumstances of 10 May 1926 and the Expropriation Act for Extremely Urgent Circumstances of 26 July 1962). The law on expropriation was complex and outdated, and there was an increasing demand for a uniform, rapid and efficient procedure.
This finally led to the Flemish Expropriation Decree of 24 February 2017, through which the Flemish legislator has introduced a single harmonised expropriation procedure. In principle, therefore, the federal expropriation acts are no longer applicable in the Flemish Region. However, an exception still exists for expropriations within the Flemish Region made by the Federal Government or by entities authorised by the Federal Government. The federal acts also continue to be in force in the Walloon Region and the Brussels Capital Region. The Expropriation Decree of 27 October 2017 also implements the new framework of the Decree.
Confirmation of the traditional expropriation conditions
The Flemish Expropriation Decree confirms the traditional expropriation conditions, which are already largely determined by article 16 of the Belgian Constitution: expropriation is only possible for a public purpose; an explicit legal basis for the expropriation is required; the expropriation must be necessary, made on the basis of the procedure set out in the decree, and in return for fair compensation paid beforehand.
The Flemish legislator now also states that, if real estate is encumbered by a right in rem, that right can be expropriated separately (e.g. the right of exit, apart from the underlying right of ownership).
Some changes
Authorisation
The Decree explicitly indicates the authorities competent for expropriation. Formerly, each authority (except the Flemish Government itself) had to be authorised by the Flemish Government to carry out expropriation. The Decree abrogates this requirement for provinces and municipalities.
Other expropriating authorities still need authorisation to expropriate. The principle is that a democratically legitimated authority at the relevant level is competent to supervise the expropriator. The local council can authorise the local Social Service Department or the autonomous municipal companies to expropriate, while the provincial council can authorise the autonomous provincial companies to do so.
The Flemish legislator sets deadlines in relation to obtaining such authorisation. The expropriating authority must send the application to expropriate to the authorising authority at the latest 45 days before the final expropriation decision. The authorising authority must then decide whether or not to grant the authorisation within 30 days. This period is reduced to 15 days when the expropriation procedure coincides with certain spatial planning procedures.
Administrative phase
The administrative phase starts when the expropriating authority drafts a provisional expropriation decision, including an expropriation plan and a project note. Since the Decree determines the content of these documents, it offers a fixed and clearly defined set of basic documents.
The Flemish legislator forces the expropriating authority from now on to make a demonstrable attempt to acquire the property amicably by means of negotiations, before proceeding to expropriation. This entails the expropriating authority contacting the owner or the holder of the right in rem by sending a secure notice with a request to engage in negotiations with a view to an amicable acquisition.
If the request leads to negotiations, the expropriating authority must address a written offer to the owner or holder of the right in rem. This written offer must specify the amount of the compensation offered, including the elements it is composed of, and an explanation of the offer. The written offer must made by means of a secure notice. It is possible to give a verbal explanation, in which case, in principle, a report signed by the owner or holder of the right in rem constitutes proof of that verbal explanation.
Following the provisional expropriation decision, the expropriating authority is obliged to organise a 30-day public investigation concerning the intended expropriation. If the expropriation fits within the framework of a spatial planning procedure, the public investigation must be organised in accordance with the rules of that procedure. If not, the following principles apply.
If real estate is expropriated, the expropriating authority informs the owners about the public investigation by means of a secure notice. The owner must inform the holders of the personal rights and the rights in rem about the investigation. If only a right in rem is to be expropriated, the expropriating authority must inform the holder of the right in rem, who will then have to inform the other holders of personal rights or rights in rem.
The public investigation must also be publicly announced, through posting, on the website of the municipality where the property or right in rem concerned is situated, on the website of the expropriating authority, by an announcement in a local printed newspaper that is not considered as advertising material, by an announcement in the Belgian Official Gazette and on a "digital exchange platform for expropriations". The complete digital file, including all documents and procedures, will be available for consultation and electronic exchange on this platform, which is not yet operational.
The Decree also introduces the right to submit a request for "self-realisation" during the public investigation. Through self-realisation, the owner can avoid the expropriation by personally achieving the purpose for which the expropriation is envisaged. The applicant needs to prove (among other things): (1) by means of an official act that he/she is the full owner of the property to be expropriated or the holder of a right in rem on the property if that right in rem is to be expropriated; (2) that he/she has sufficient financial and economic standing; and (3) that he/she has the necessary technical capacity and professional capability to achieve the self-realisation. The expropriating authority verifies whether the application meets these conditions, and can then accept the request or reject it with a reasoned decision.
After the public investigation, the final expropriation decision can be taken. This decision can be appealed by any interested party within a period of 45 days. The appeal is no longer lodged before the Council of State, but before the Council for Permit Disputes. The Council of State nevertheless remains competent, as a "cassation court", to annul decisions of the Council for Permit Disputes.
If the authority and the owner or holder of a right in rem reach agreement during the negotiations, then an amicable sale and purchase agreement will be concluded. If no agreement is reached, then the judicial phase will need to be started, since the expropriation can only be established by a court decision.
Judicial phase
Whereas three different judicial expropriation procedures existed before, the Flemish legislator has now opted for a single, clear and simplified legal procedure before the Justice of the Peace. This means that there will no longer be "urgent" or "normal" expropriations, as in the past, and hence the "urgency" no longer needs to be justified.
The expropriating authority starts the procedure before the Justice of the Peace.
First, the Justice of the Peace will render a verdict on the legality of the expropriation within three months after the first court date. The expropriating authority or any party that has contested the legality may appeal against the judgment before the Court of First Instance.
If the Justice of the Peace considers that the expropriation is lawful, a meeting will take place at which agreements will be made on, among other things, the description of the real estate – which is required to be drawn up by an expert. Within 15 days after the filing of the description, the Justice of the Peace will decide on the provisional compensation. This judgment cannot be appealed.
After the final report by the expert with advice on the final compensation, a second phase begins. The first requesting party can make a request in writing for the timetable to be set for pleadings and a hearing on the final compensation. The Justice of the Peace must issue a decision within 5 months, after which an appeal before the Court of First Instance is possible.
Partial expropriation – enforceable takeover of the remainder
The owner of land of which only a part has been expropriated can demand that the expropriating instance should also take over the part of the plot that has not been expropriated, provided that the non-expropriated part no longer has any real value for the owner.
The owner of a structure can also demand that the part of the structure that has not been expropriated should also be taken over, provided that the expropriation makes demolition of part of the structure necessary and the maintenance of the part that was not expropriated is jeopardised.
The right to demand the takeover of the remaining part is an option, not an obligation.
Conclusion
The Flemish Expropriation Decree introduces a number of important changes to the expropriation procedure. For example, prior authorisation to expropriate is no longer required for municipalities and provinces. The expropriating authority is now explicitly required to negotiate seriously with the stakeholder before expropriating. The judicial phase has been simplified: there is no longer a distinction between "normal" and "urgent" expropriation. From now on, only the Justice of the Peace is competent to establish the expropriation. Practice will show whether the changes are successful.