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Can the state expropriate your property?

You may have assumed that the concept of expropriation belongs to the legal system of the former regime and that it cannot happen now. But the opposite is true. Expropriation is one of the most serious interferences with the right to property known to our legal system. That is why it is only allowed in exceptional circumstances. Which are these and how can one defend oneself against possible expropriation?

Nádraží Vyšehrad, objekt možného vyvlastnění
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Chapters of the article

Probably the most famous media case where expropriation is being considered is the dispute between Prague and RailCity Vyšehrad, which owns the abandoned and unused Vyšehrad railway station. The building is in a catastrophic condition and is not being cared for. Expropriation is allowed by the law on monuments provided that the owner has not taken care of the monument for a long time. The Prague City Council, together with the Ministry of Culture, has already started taking the first steps towards expropriation in order to save the monument.

Recently, another expropriation case has stirred up discussions in the media. This was caused by the attitude of the Mayor of Prague 6, who plans to acquire an empty Russian school building owned and managed by the Russian Embassy. The Prague 6 City Hall is considering using it for schooling purposes for Ukrainian refugee children and, since the Russian Embassy does not want to provide it voluntarily, is considering expropriating it.

What does expropriation mean?

Expropriation does not always mean taking away, but it can also be a “mere” restriction of the right of ownership or the right corresponding to an easement over land or a building to achieve the purpose of the expropriation.

Expropriation typically concerns immovable property, but theoretically, expropriation of movable property is not excluded (for example, under the Act on Securing the Defence of the Czech Republic). In the process of expropriation, we distinguish between the expropriator, i.e. the one who claims ownership rights (or the establishment of an easement) to the land or building in question, and the expropriated, which is the one who owns the real estate or has rights corresponding to the easement.

Of course, the right to property is protected by the Charter of Fundamental Rights and Freedoms and the law, so expropriation does not happen in some random, arbitrary way where someone “steals” your property without compensation. On the contrary, everything should only happen in an extreme, pre-defined situation, within the framework of an expropriation procedure that is strictly governed by the law.

The basic legal basis is therefore the Charter of Fundamental Rights and Freedoms, according to which expropriation of property is possible only in the public interest, on the basis of the law and for compensation. The specific legal regulation is offered mainly by the Expropriation Act and the Building Act. However, even their combination does not provide a complete legal regulation, as the issue is much more complex.

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Tip: We have discussed the rights guaranteed by the Charter of Fundamental Rights and Freedoms and the possibilities of their protection in a separate article.

Conditions of expropriation:

The legal order prevents abuse of the institution of expropriation by setting a set of conditions that must be met. These are:

1. Fulfillment of the purpose of expropriation

Expropriation may be carried out only for the purpose of expropriation and under the condition that the public interest in achieving such purpose outweighs the preservation of the existing rights of the expropriated. The public interest must always be demonstrated in any expropriation proceedings; it is not sufficient to merely state that it exists.

The possible purposes of expropriation are defined in special laws, in particular in the Construction Act. The purpose may also be, for example, to ensure the defence and security of the state, protection of nature and landscape, provision of transport infrastructure, conservation, protection of archaeological heritage and other objectives set out in special laws (Energy Act, Water Act, Nature and Landscape Protection Act, Road Act, etc.).

As an example, when building a motorway and acquiring land for its construction by expropriation, it is necessary to demonstrate that the construction of the motorway will relieve the burden on the transit point in the nearby town, where thousands of cars and trucks now pass through the heritage centre with its schools and kindergartens every day. The construction will improve the environment for hundreds of residents living in the immediate area, as well as thousands of residents in the town in general, with a safer and less noisy environment.

2. The objective cannot be achieved in any other way

Other means of achieving the same purpose, i.e. entering into a contract, agreement, etc., take precedence over expropriation. If it is possible to acquire rights to land or buildings in the above way, then expropriation is not permissible. This does not include any attempt to reach an agreement where, for example, you just pick up the phone and ask the owner if he or she intends to sell the land.

The attempted agreement must be properly documented by the presentation of a written agreement to the owner, together with the purpose of the building and information that if the agreement is not concluded, the rights can also be acquired by expropriation. Only if the agreement to acquire rights to the land or structure fails to be executed within 90 days of the time the owner submits the proposed agreement is expropriation permissible.

3. Consistency with the aims and objectives of spatial planning

In planning the expropriation, it is necessary to follow the spatial planning documentation (spatial development policy, spatial development principles and land use plan) and not to deviate from it.

4. Not exceeding the necessary scope

If it is sufficient to use a certain area of land for the construction of a motorway, then there is no need to expropriate surrounding land. The purpose of the expropriation should be followed and the expropriation should be carried out only to the extent necessary for the purpose. This means both the territorial extent and the extent of the limited rights. If, for example, the establishment of an easement is sufficient, then it is not possible to resort to taking away property rights.

5. Provision of compensation

A necessary condition for expropriation is also the provision of compensation, in the amount of the normal price of the land or building or the price of the right corresponding to the easement (a variant may be the provision of other land or building if the expropriator agrees). The amount of compensation for the expropriated land or right shall be determined on the basis of expert opinion. In addition, other costs incurred as a result of the expropriation – for example, moving costs, change of business, etc. – are also compensated.

Procedure and decision on expropriation

Expropriation can only take place on the basis of an expropriation procedure. It is initiated at the request of the expropriator, which is submitted to the expropriation authority, which is the municipal authority of the municipality with extended jurisdiction in whose district the land or building is located.

Once the expropriation proceedings have been initiated, the land or building may no longer be disposed of, i.e. it may not be sold, donated or subject to pre-emption rights. If this were to happen, the act would be null and void.

If it is proven that the expropriation of the land or building is in the public interest and all the above conditions are met, the authority will decide by separate rulings on both the expropriation of rights (i.e. withdrawal of the right of ownership or the establishment of an easement) and compensation for the expropriation. The amount of the compensation for expropriation and the time limit for payment of the compensation are set in the statement on compensation for expropriation.

Review of the decision on expropriation

An appeal may be lodged against an expropriation decision. If the expropriated person disagrees with the entire decision, both statements must be challenged. If the appeal is not successful, an action against the decision of the administrative authority may be brought before the administrative court.

If an appeal is lodged against the compensation decision only, the deprivation of rights decision may become final and only the second part of the decision is dealt with.

Tip: Shortened expropriation proceedings can be carried out under the Act on Ensuring the Defence of the Czech Republic in the event of a state of war or a state of emergency. In such a case, expropriation may also concern movable property for the purpose of ensuring the defence of the state if it cannot be acquired otherwise.

Cancellation of expropriation

In addition to appeals, the decision on expropriation may be revoked separately if

  • compensation is not paid within the time limit,
  • the implementation of the purpose is not commenced within the time limit,
  • the zoning decision on the project is revoked or the zoning decision ceases to be valid.

Therevocation can only take place at the request of the expropriated person, so it is up to the expropriated person to keep track of the time limits and other facts. Once the expropriation is revoked, the expropriated rights are restored and the compensation received is also returned.

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Author of the article

JUDr. Ondřej Preuss, Ph.D.

Ondřej is the attorney who came up with the idea of providing legal services online. He's been earning his living through legal services for more than 10 years. He especially likes to help clients who may have given up hope in solving their legal issues at work, for example with real estate transfers or copyright licenses.

Education
  • Law, Ph.D, Pf UK in Prague
  • Law, L’université Nancy-II, Nancy
  • Law, Master’s degree (Mgr.), Pf UK in Prague
  • International Territorial Studies (Bc.), FSV UK in Prague

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