Explained: Real Estate Rights that Are Subject to Expropriation

Expropriation addresses real estate property rights, including primary and secondary in rem rights on property. Real estate in rem rights are the direct authority that the law assigns to an individual over a specific property without the mediation of another. These rights are categorised into primary in rem rights, which include rights of usage, enjoyment, and easement, and secondary in rem rights that cover collateral mortgages, possessory mortgages, and rights of privilege.

These rights may be taken over upon the expropriation of a given property. For instance, if the public authority takes over the property, it controls ownership of that property and any associated in rem rights belonging to others, such as registered easement rights. The public authority must then compensate the former holders of these rights. Furthermore, the public authority can expropriate a right in rem on a property without taking over ownership, such as establishing an easement on a property by laying an electrical tension line while leaving the property under the owner’s possession.

Under Article 2 of the Expropriation Law, issued by Legislative Decree No. 20 of 1983, expropriation can be applied to both built and unbuilt properties, subdivided or jointly owned. It is also permissible to expropriate lands even if they are allocated for construction, so long as they are included in the expropriation plan to implement public benefit projects.

Agricultural lands have been given special attention in expropriation cases. Under Council of Ministers Circular No. 86/B-15/4778 of 1983, the expropriating authority cannot seize agricultural land and prevent the farmer from exploiting it before an official expropriation decision and settlement of the farmer’s rights.

Authorities may expropriate an entire property or just a part of it. However, if the remaining part of the property becomes unusable, the expropriating authority should then expropriate that part within three years upon the owner’s request and following a decision from the local council stating that the remaining part is unusable. In this instance, the council’s decision must be per Article 11 of Expropriation Law No. 20.

On the other hand, if a public authority expropriates a property larger than needed for a public benefit project, this does not negate the public benefit of the excess portion, nor does it affect the validity of the expropriation decree. The authority has the right to manage the remaining amount according to the expropriation decree provisions based on the determination set by the Court of Cassation under Principle 459 issued by Decision No. 269 of 1984.

It is also permissible for public authorities to expropriate portions of multiple different properties to construct on them after merging and unifying them or subdividing them, as stipulated in Article 5 of Law No. 20.

Article 2 of the Expropriation Law allowed for the expropriation of awqaf (endowments) properties, while Law No. 26 of 2000, which amended the Urban Expansion Law, did not permit such properties. Article 2 of Law No. 26 specifies that endowment properties belonging to various religious sects should not be subject to expropriation under its provisions. Therefore, the expropriating authority always relies on the provisions of Expropriation Law No. 20 when expropriating a property owned by the Ministry of Endowments.

Finally, for properties owned by public entities, Expropriation Law No. 20 does not contain a provision allowing their expropriation. However, the General Assembly of the Advisory Department for Fatwa and Legislation in the State Council stated in its Decision No. 2199 of 2010 that an expropriation order issued by the Prime Minister for a property to benefit of one of the governorates is considered null.

In the rationale of the General Assembly’s 2010 decision, it was expressed that all state interests aim equally to achieve public benefit projects. As such, giving one of these entities the right to expropriate properties owned by another public entity is inappropriate. On the other hand, in a more recent ruling by the General Assembly of the State Council, issued as No. 200 of 2013, it was determined that for the expropriation of a property belonging to a public entity, the Ministry of Agriculture and Agrarian Reform must be approached to allocate the property. An expropriation decision cannot be issued before this step. Otherwise, it would be considered null.