In order to fulfil their public service task, public authorities (States, Regions, Municipalities, public social welfare centres, transport companies, etc.) must regularly develop projects that require the acquisition of real estate — for example a whole or partial plot of land, a building, or even subsoil.
If the owner refuses to transfer amicably the property needed to carry out the planned project, public authorities are legally authorised to resort to expropriation in the public interest.
Expropriation therefore consists of the compulsory appropriation by a public authority of a piece of real estate in the public interest. It encroaches on the right of property, which must give way to the general interest.
Most of the legal texts on expropriation have fallen into disuse.
In practice, only one text is still applied, namely the Act of 26 July 1962 on the extreme urgency procedure in matters of expropriation in the public interest. This text is often criticised, given the speed of the procedure which, on the one hand, leaves little room for the expropriated party to defend their rights — which must be presented at the on-site hearing, often held in a very uncomfortable setting, in the cold, the mud or the rain — and, on the other hand, requires the judge to hand down a judgment within a very short period of 48 hours.
Moreover, since the sixth State reform, the Regions are competent to determine the judicial procedure in the event of expropriation in the public interest of a property located in the Region concerned, subject to fair compensation paid in advance, as referred to in Article 16 of the Constitution.
It was therefore high time to review the expropriation procedure.
In this context, like the Flemish Region — whose Vlaams Onteigeningsdecreet of 24 February 2017 (Belgian Official Gazette of 25 April 2017) entered into force on 1 January 2018 — the Walloon Region adopted the Decree of 22 November 2018 on the expropriation procedure (Belgian Official Gazette of 18 December 2018).
This decree, which entered into force on 1 July 2019, determines the administrative phase of the expropriation, detailing all the steps that must be taken from the compilation of the expropriation request file — which is entirely new compared with the 1962 Act — and then the judicial phase, which sets out the procedure before the Court of First Instance.
The Act of 26 July 1962 on the extreme urgency procedure in matters of expropriation in the public interest nevertheless still applies, the Belgian State not having modernised this legislation, and in the Brussels-Capital Region, where discussions are still ongoing to this day.
Resolved Avocats Advocaten advises, assists and defends both public authorities — from the preparation of expropriation request files through to amicable negotiations, at the stage of the administrative phase, and up to the outcome of the judicial procedure — and expropriated persons in the defence of their rights and the negotiation of expropriation compensation.
For more information, contact: Marie-Cécile FLAMENT mcf@resolved.law www.resolved.law
