Constitutional nature and content of the right to restitution of an expropriated property

2020 ◽  
Vol IV (IV) ◽  
pp. 20-34
Author(s):  
Kamil Zaradkiewicz
Keyword(s):  
Public Investment ◽  
Property Management ◽  
Real Property ◽  
Expiry Date ◽  
The Real ◽  
The Public ◽  
Constitutional Principle ◽  
Public Purpose ◽  
The Moment ◽  
The Right

The Act of 4 April 2019 on amending the Act on Real Property Management added a provision temporarily limiting the possibility of demanding restitution of the expropriated property. On the basis of the new provision, the right of the previous owner or its legal successors to restitute the expropriated property has ceased to be of perpetual nature. This right may not be exercised, as it previously was the case, at any time, as it expires 20 years from the date on which the decision to expropriate became final. This solution should be assessed negatively, as it deepens the non-constitutional nature of the statutory mechanism of restitution of expropriated real property, which makes the demand for restitution dependent on whether the public objective has been assumed (i.e. started to be implemented). If this is the case, then, in the light of the Real Property Management Act of 1997, the restitution of real property can never be claimed, and therefore even if such an objective in the future ceases to be implemented (e.g. as a result of the end of the operation of the real property as part of a public investment). However, in the light of the constitutional arrangements relating to the guarantee of ownership, the right to restitution of the expropriated property should always be vested in the expropriated owner or his/her legal successors whenever the public objective justifying the expropriation has not arisen as well as when it ceased to be implemented. In any event, the condition for claiming restitution shall be a claim made by the person concerned and a return of an appropriate, indexed sum paid as compensation for expropriation. The constitutional principle of the protection of individual status of property of the owner results in the “conditionality” of the transfer of ownership by way of expropriation to the State or another entity. Any existence and implementation of an appropriate objective justifying the expropriation for a public purpose, grants of the ownership and its permanence on the part of these entities. As a consequence, also the possible expiry date of the claim for the restitution of the property, expropriated after the expiry of the public purpose, should run from the time of such expiry and not from the moment when the decision about expropriation became final.

Division of real estate upon request and the return obligation under Article 136(1) of the Act on the Real Property Management: a few remarks in the context of counteracting the so-called “land freezing” versus the principle of loyalty

2021 ◽  
Vol I (I) ◽  
pp. 47-62
Author(s):  
Sławomir Pawłowski
Keyword(s):  
Real Estate ◽  
Investment Project ◽  
Property Management ◽  
Private Land ◽  
Real Property ◽  
The Public ◽  
Public Purpose ◽  
Public Road ◽  
The One ◽  
Public Entity

Division of real estate by application is still not properly recognised in the jurisprudence of administrative courts. On the one hand, this is manifested in the fact that, although it results in the takeover of private land for the benefit of a public entity for the purpose of building or extending public roads, this decision is not recognised as being expropriation. One of the most important consequences of denying to recognise this division as one of the forms of expropriation is that it is not subject to the return obligation, even if the public-purpose investment project, i.e. the construction of a public road, was not completed within 10 years of the takeover. It should be added that the lack of actions on the part of the commune to acquire such land leads to an adverse phenomenon which is referred to as “freezing the land”. On the other hand, it is argued that the division decision has no features of authoritative and compulsory acquisition of the title to real property by the commune. The above views are subject to criticism given inter alia that they fail to take into account that the spatial planning acts, in particular the local spatial development plan, play a prognostic role in relation to expropriation acts. The study presents the thesis that, were the premise of the public purpose be rejected, then regardless of the form of takeover of the title to real property by a public entity, the obligation to return this property to the former owner or its legal successors arises.

scholarly journals PUBLIC SECTOR PROPERTY MANAGEMENT REFORM TO ENHANCE THE ECONOMIC DEVELOPMENT: CROATIA AND BOSNIA AND HERZEGOVINA CURRENT STATE AND INTERNATIONAL PERSPECTIVES

2017 ◽  
pp. 436-461
Keyword(s):  
Economic Development ◽  
Public Sector ◽  
Bosnia And Herzegovina ◽  
Asset Management ◽  
Financial Management ◽  
Property Management ◽  
Real Property ◽  
Management Reform ◽  
The Public ◽  
Current State

Property asset management can be defined as the process of decision – making and implementation relating to the acquisition, use, and disposition of real property. This definition applies to both the private and public sectors, even though in the government sector, the term itself was not in common usage until recently. Over last two decades, however, a new discipline has emerged that looks more critically at the important component of public wealth and seeks to apply standards of economic efficiency and effective organizational and resource management. Public sector property management has been regarded as a structured process that seeks to ensure best value for money in serving the strategic public sector needs and enhancing the economic development and competitiveness. There are governments that are only beginning to seek improvements in the management of publicly owned property with a goal of putting into use various types of government asset items, under the supervision of professional management, with a view to ensuring quality public services and welfare to the citizens, governments that have just recently embarked in the long term financial management reforms and strategic public sector property management reform in particular, and governments called “advanced reformers” offering their conceptual and valuable practical experience in the sphere of public property management. Starting from the concept that public authorities have to be fully accountable to the public and that the whole of government assets need and can be effectively managed, and widely accepted thesis that effective government asset management is a very important generator for creating a supportive entrepreneurial environment, and raising the competitiveness of the entire economy, in this paper we analyse the drivers of international property management reforms in the public sector and provide a comment on public sector property management in developed countries and (post) transition countries. Then we analyse the characteristics of commenced public sector property management reform in Croatia which may be considered as challenges ahead of Bosnia and Herzegovina authorities in structuring their national public sector property management reform, given the current state of play.

scholarly journals MANAGING PUBLIC PROCUREMENT APPEALS

2019 ◽  
Vol 4 (4) ◽  
pp. 79-85
Author(s):  
Anna SLOBODIANYK ◽  
Nadiya REZNIK
Keyword(s):  
Civil Rights ◽  
Process Analysis ◽  
Public Procurement ◽  
Individual Case ◽  
The Public ◽  
Procurement Contract ◽  
Procurement Procedure ◽  
The Moment ◽  
The Right ◽  
Procurement System

Introduction. The main purpose of the public procurement system is determined by the need to ensure efficient use of budget funds in the development of competition, transparency and openness of the procurement process organization. The purpose of the research is to conduct the process analysis of contesting the public procurement procedure by tenderers. Results. The authors argue that evaluating the dispute resolution effectiveness between the complainant and the customer on the basis of the balance of rights, interests, and objectives of the procurement law is, in practice, an extremely difficult issue that must be resolved in each individual case. The specifics of determining the procurement subject by the customer are highlighted in such a way as to preserve the right to choose the product that suits him best and not to buy the cheapest existing product on the market, such as paper according to certain parameters of density and level of linen. But if the customer has already defined in the tender documentation technical and the qualitative characteristics of the procurement subject, he has no right to further deviate from them when selecting the winner. It is proved that the appeal procedure is created specifically to ensure a quick and professional settlement of conflicts between the participant or potential participant of the procurement procedure and the customer regarding the actions of the customer, which violate the right of such participant in the procurement procedure and the conclusion of the contract with the customer. Attention is drawn to the appeal terms of the tender documentation claim being challenged and the possible addition of justification for the need to amend the conditions of the tender documentation with the opportunity to give additional evidence. Conclusions. From the moment of the procurement contract conclusion between the state customer and the successful tenderer, classic private legal relations emerge, and consequently, after the conclusion of the procurement contract for public funds, which is the final stage of the procurement procedures, civil rights and obligations arise between the parties, and consequently civil rights and obligations arise to appeal the procurement procedure. Keywords: public procurement; body of appeal; tender documentation; the subject of the appeal; legislation on public procurement.

Right-of-way for Transmission Facilities as Regulation of Legal Relationships Regarding Real Estate between the Real Estate Owner and the Transmission Entity

2017 ◽  
Author(s):  
Anna Przewiezlikowska
Keyword(s):  
World War Ii ◽  
Real Estate ◽  
Legal Status ◽  
Real Property ◽  
The Real ◽  
The Real Estate ◽  
Right Of Way ◽  
Estate Owner ◽  
Construction Permit ◽  
The Right

In Poland, after World War II, most of the technical infrastructure was built based on a construction permit, and without a legal title to a given real property. Therefore, a necessity arose for the regulation of property rights where technical infrastructure was built. For the establishment of the right-of-way for transmission facilities it is essential to regulate the legal relationships between the owner of the real estate and the transmission entity and their entry into the land and mortgage register. The extent of the granted right-of-way determines the value of consideration for the owner of the encumbered property. This study analyzes the rules for the determination, establishment and surveying preparation of the right-of-way for various types of transmission facilities. First a thorough examination of the legal status of the real property was required and then the extent of the necessary right-of-way to be established for the given facilities was analyzed. The next stage of the study involved determining the extent of the rights-of-way and appropriate protective zones for the networks pursuant to the relevant technical guidelines. The analysis revealed significant diversity of legal regulations on the establishment of the right-of-way for the specific types of public utilities.

Zasada szybkości w postępowaniach w sprawach przygotowania i realizacji inwestycji infrastrukturalnych

2020 ◽  
Vol 30 ◽  
pp. 174-188
Author(s):  
Przemysław Ostojski ◽  
Keyword(s):  
Rule Of Law ◽  
Public Interest ◽  
Constitutional Rights ◽  
The Rule Of Law ◽  
The Public ◽  
Constitutional Principle ◽  
Infrastructure Investments ◽  
Principle Of Proportionality ◽  
Administrative Proceedings ◽  
The Right

The article concerns the principle of speed in the proceedings regarding the implementation of infrastructure investments. The analysis of individual legal institutions is aimed at assessing statutory regulations of investment acts in the scope of the principle of speed. The aim of the analysis is to verify the assertion that the implementation of specific law-related rules in special investment documents connected with giving priority to the speed of administrative proceedings followed the constitutional principle of proportionality. As a result of the conducted analysis, it should be stated that the implementation of the principle of speed of proceedings to investment acts does not fundamentally violate the essence of constitutional rights of individuals – including the right to challenge decisions and the right to protect of rightly acquired rights. The legislator limits the principles of transparency, as well as the principle of active participation of the party in administrative proceedings, but does not eliminate these principles. Regardless of this, the legislator infringes in the analyzed Acts the essence of the party’s right to submit an application for temporary protection in administrative proceedings. The legislator violates in a qualified manner – due to the public interest – the rule of law and two-instance, preventing the appeals authority in the course of the instance of repealing the decision in its entirety, if the defect affects only its part concerning the property.

Notice of adjustment of the annual fee for perpetual usufruct of real property

2021 ◽  
Vol IV (IV) ◽  
pp. 49-76
Author(s):  
Krzysztof Kaszubowski
Keyword(s):  
Public Administration ◽  
Civil Code ◽  
Property Management ◽  
Real Property ◽  
The Real ◽  
Property Owner ◽  
Characteristic Features ◽  
Legal Consequences

The title to perpetual usufruct is regulated under Articles 232 to 243 of the Civil Code and in the Act of 21 August 1997 on Real Property Management. One of the characteristic features of this right is the obligation, on the part of the perpetual usufructuary, to pay an annual fee. The Act on Real Property Management prescribes that this fee may be updated by the competent public administration body acting on behalf of the real property owner. An analysis of provisions regulating the proceedings initiated by the filing of the notice of adjustment of the existing fee leads to the conclusion that the regulation in question is neither precise, nor clear. An additional difficulty lies in non-specification of legal consequences for a defective adjustment of the existing fee. This article puts forward a proposal for a solution to the most important practical difficulties associated with adjustment of the existing annual fee for perpetual usufruct.

Limits of criminal liability of police officers - historical-legal study

2019 ◽  
Vol Special Issue ◽  
pp. 29-43
Author(s):  
Dorota Mocarska
Keyword(s):  
Police Officers ◽  
Criminal Liability ◽  
Moral Conflicts ◽  
Abuse Of Power ◽  
State Institutions ◽  
The Public ◽  
It Service ◽  
The Public Sphere ◽  
The Moment ◽  
The Right

Misuse of power is a crime that threatens the proper functioning of state institutions, undermining trust in the system of power, and creates a particular sense of injustice among the citizens who come into contact with it. Service in the Police puts before each officer a number of duties, resulting from the provisions of law contained in acts, regulations as well as decisions and orders of superiors. Few professions are so ethically demanding and so full of moral conflicts. No other profession requires making moral judgements about the behaviours of other people, and using in response to these behaviours appropriate social reactions, based on moral reasons. The crime of abuse of function involves the exceeding of powers or failure of a public officer to perform his duties, and such abuse of power must be to the detriment of a public or private interest. Acting to the detriment means that the offender's conduct poses a threat to any public or private good. The crime of abuse of power consists in the action of an entity having specific duties and powers in the public sphere, where that action consists in exceeding the powers or failing to fulfil the obligations to the detriment of a legally protected good. In each case a number of activities are required to establish the source of the right or obligation of a public officer to take specific actions, to define the addressee and the content of the right or obligation, and in the event that the public officer is under an obligation to act, also to determine the moment of updating the obligation. Furthermore, an indication of the part of the actual conduct of the offender which was directly related to a specific prohibition or order and a demonstration that the actual conduct of a public officer was contrary to that prohibition or order. Exceeding the powers by a public officer should be considered a specific type of factual and formal event, when there is a breach of an official order or prohibition binding on this person.

Defending Corporate Identity on New Spain's Northeastern Frontier: San Esteban de Nueva Tlaxcala, 1780-1810

2008 ◽  
Vol 64 (3) ◽  
pp. 351-375 ◽  
Author(s):  
Leslie S. Offutt
Keyword(s):  
Agricultural Production ◽  
Corporate Identity ◽  
Local Economy ◽  
The Public ◽  
Municipal Council ◽  
Legal Challenges ◽  
The Moment ◽  
The Right ◽  
The Church ◽  
Do So

In 1808, confronted with the latest in a lengthy series of legal challenges to its corporate landholdings, the municipal council of the Indian town of San Esteban de Nueva Tlaxcala, in the northeastern province of Coahuila in New Spain, dispatched a blistering note to its counterpart in the adjoining Spanish town of Saltillo. The question of the moment concerned the right of Saltillo residents José Miguel and Juan González to route water they claimed in one place to property San Esteban had earlier allowed them to farm in another. But to do so meant that the water would be directed across lands belonging to San Esteban. When the Indian town denied them this right, the brothers protested vigorously. They contended that agriculture was, after all, the mainstay of the local economy. It benefited the public, the king, the church, and particularly the families of the pueblo itself. To deny these two farmers access to their water was to jeopardize agricultural production in the area. Further, they argued, San Esteban possessed much uncultivated arid land; perhaps the pueblo should consider renting some of the Gonzálezes' water as it flowed across the town's properties. Implicit in this suggestion was the assumption that San Esteban residents could not deal with what they had, that they were wasteful in utilizing their resources, and that Spaniards, in this particular case the brothers González, were better equipped to exploit the resources of the community.

Bulgarian Independence

1912 ◽  
Vol 6 (3) ◽  
pp. 659-678
Author(s):  
Georges Scelle
Keyword(s):  
Middle Ages ◽  
Public Domain ◽  
Real Property ◽  
Public Power ◽  
The Real ◽  
The Public ◽  
Eastern Question ◽  
The Middle Ages

[Being the fifth part of a series of Studies on the Eastern Question. The preceding parts appeared in the January, April and July numbers of the Journal for 1911, and the January number for 1912.] From the foregoing explanations, it will be seen that in the Turko-Bulgarian arrangement relative to the question of independence, less care was taken in regulating according to juridical principles the transmission of the attributes of sovereignty than in an effort to reach a financial compromise capable of conciliating opposing interests. We have in particular considered the property of the public domain as a real property for which the emancipated State must refund the accumulated outlay. This is a curious idea for our times, when we have lost the habit of looking at the public power in the light of patrimoniality. But this conception is self-explanatory, if we but remember that we are in the Orient, in Turkish territory where the coining of the attributes of sovereignty has always been the rule, where the principles of the Middle Ages have survived longer than anywhere else. And these conditions are self-explaining if we think of the persisting uncertainty of the nature and the real meaning both of the Treaty of Berlin and of the union of 1885 regarding Bulgaria and Rumeiia. From all these conditions, there issues an impression of indecision and of archaism.

scholarly journals Decyzja o zezwoleniu na lokalizację obiektów budowlanych w pasie drogowym jako źródło prawa do dysponowania nieruchomością na cele budowlane

2020 ◽  
Vol 30 ◽  
pp. 189-202
Author(s):  
Jacek Piecha ◽  
Keyword(s):  
Building Structures ◽  
Real Property ◽  
Independent Source ◽  
The Real ◽  
The Public ◽  
The Road ◽  
Administrative Act ◽  
Construction Law ◽  
Definition Of

The article presents the problem of the interpretation of art. 3 point 11 of the polish Construction Law act. Abovementioned provision statues the definition of the notion of “right to use the real property for construction purposes”. Literal wording of art. 3 point 11 may seemingly indicate that this right may be arised only from private (civil) law’s legal relationships. This paper aims to indicate that such interpretation of the art. 3 point 11 of the Construction Law act is incorrect. The author proves that the administrative act like the permit for building structures localisation in the road lane (statued in the Public Roads Act) may be considered as independent source of the investor’s right to use the real property for construction purposes.

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