Real estate expropriation for public purposes
A protest against real estate expropriation and a demand for reimbursement
Since the rise of the modern state, and as the basis for all state theory and the structure of the democratic regime in contemporary times, the principle of legality has become increasingly important. Legality is the concept that in a democratic country, a private individual may do whatever he wishes, as long as it does not conflict with the law, whereas the government cannot do anything other than what the law explicitly permits.
It is important to examine and monitor the actions of the government in the area of land expropriation for public purposes.
By Igal Mor, Adv. & Notary
Accuracy in Legal Advice. Excellence in legal support.
An overview of expropriation and its limitations
In Israel, expropriation refers to the forced transfer of real estate without consideration. State authorities may only expropriate for public purposes in accordance with Israeli law.
Expropriation is defined by law as a government action that is considered a legal expropriation if a number of conditions (“elements”) are met, and for this there are four:
Buying, coercing, transferring real estate rights to a public authority, and these actions are carried out by the state in compliance with law. The following is a list of all four elements.
פעולת רכישה: חוק המקרקעין (תשכ”ט 1969) קובע (סעיף 2) כי:
Ownership in real estate refers to the right to own, use, and do any and all transactions with such property, subject to any restrictions imposed by law or agreement.
Interestingly, this section defines what is included in the concept of ownership, as well as the right to make transactions in order to transfer ownership from one person to another. The process of transferring real estate ownership or even simply renting an apartment (which is legally considered a conditional transfer of the right to use the property) is known as “acquiring a right to real estate”. The first requirement for the existence of an expropriation is the purchase of some right in the land.
As humans, we frequently transfer rights in real estate between one another or between us and the government authorities for a variety of reasons. In fact, any inheritance, apartment rental, sale or even just allowing a neighbor to use my parking regularly constitutes the acquisition of a right to real estate.
In all of these actions, we exercise our free will. Whenever a government forcefully transfers rights to our land, regardless of our desire to do so, this is a form of coercion.
Public authority is granted a right: a private individual may not expropriate land in Israel (or any other Western country). If a certain individual were to force me to transfer my real estate rights to him by threats, this would be a form of robbery or extortion by threats, which is in violation of criminal law.
Contrarily, only if a public authority (or its authorized representative) forces me to surrender rights to my land, will it be considered “expropriation”.
According to state and federal law:
As stated in Section 3 of the Basic Law on Human Dignity and Freedom,
A person’s property should not be harmed by anyone.
According to this law, enacted in 1992 with the aim of protecting the dignity and rights of citizens, the government authorities (see section 1a) are prohibited from taking, damaging, or restricting the property of a private individual. A legal protection for our property is granted by the Basic Law, which also forms the basis of modern democracies – the right to property, which is the right of an individual to own and hold property without being subject to any infringement by another.
Nevertheless, it is clear to all of us that government will have to compromise our property rights under certain circumstances if the common good is to be served. Accordingly, section 6 of the law specifies that any action that violates our property rights must be taken by the legislative authority of the state through explicit legislation and under various legal restrictions. It is only when all four criteria are met that the situation can be called “expropriation”.
Objecting to expropriation and obtaining compensation for it
As a final element, the state is subject to a number of limitations and legal definitions that limit its right to expropriate my private property. Those restrictions serve a number of purposes, including the protection of proprietary rights. They also ensure that the government does not use its power unnecessarily and without justification.
For instance, one of the conditions for expropriation is the publication of information about the expropriation in a variety of public forums for the purpose of allowing the public to express its opposition. The purpose is to allow the individual who wishes to protect his property to object to the court, the municipality, or any other relevant entity that is considering expropriating the land for his use, thus preventing disproportionate and unjustified damages.
An objection, despite all its difficulties, may prevent property damage if the court finds that the action is being taken improperly or in an inappropriate manner.
As well, when real estate rights are expropriated under the Lands (Purchase for Public Needs) Ordinance (1943), the state authorities are required to compensate the owners (Section 20). The compensation, which is usually greater than the land’s current value, is intended to mitigate the serious harm to our private property, and explicit legislation from 2010 clearly stipulates that, except in extremely exceptional situations, almost no expropriation will be carried out in Israel without compensation for the landowners.
In conclusion
The legal handling of land expropriation through a construction and real estate lawyer is carried out in different ways, which are characteristic of each case: starting with the possibility of canceling the expropriation – representation in petitions to cancel planned expropriation or expropriation that has not been realized, and ending with claims for compensation for real estate that has been expropriated and including claims for compensation for real estate that has been damaged due to its proximity to the real estate expropriated.
Real estate, planning, and construction at Adv. Mor & Co. is a department that has a great deal of experience in both real estate transactions and planning and construction procedures.
Professional legal support is the value that leads the firm in real estate transactions and planning and construction procedures, and this in order to bring both to the desired and most efficient result for the client.
We can help you with real estate issues when you contact us by phone at 02-595-3322, via WhatsApp at 050-441-1343 or using the online contact form below.
