Procedure for expropriation

Posted by Admin | Posted in Special Civil Actions | Posted on 16-07-2010

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There are two stages in expropriation. The decisions of the court in both instances are final and appealable.  Multiple appeals are allowed in this case.

  • Stage 1: Determination of the Right to Expropriate

The government or LGU will file a verified complaint:

a)      stating its right and the purpose for its exercise

b)      description of the property

c)       name of all persons owning, or claiming to own, or occupying it, showing as far as practicable their separate interest

d)      if the title to the property is in the name of the Republic of the Philippines but is occupied by a private individual, or if the title is obscure or doubtful, this fact must be stated

Upon filing of the complaint, the expropriator may enter the property after depositing a certain amount with an authorized government depositary.   The value of the deposit will vary – if it is real property, the assessed value for tax purposes, and if it is personal property, the court will provisionally determine it.

If it is an LGU expropriating a real property, the deposit should be equal to 15% of the market value of the property based on the tax declaration.

If the acquisition involves property to be used for national government infrastructure projects (RA 8794), the government should deposit 100% of the value of the property based on the current zonal valuation of the Bureau of Internal Revenue, including the value of improvements, if any.

These amounts are only provisional; the purpose is only to allow the plaintiff/expropriator to enter the property while the case is pending.  It is for the protection of the property owner, who, in the meantime, will be deprived of the use and enjoyment of his/her property.  If the case pushes through, the court will still have to determine the amount of just compensation to be paid to the owner in exchange for his or her property.

Then, the court may either dismiss the complaint or issue an Order of Expropriation declaring the plaintiff’s right to expropriate.

  • Stage 2: Determination of Just Compensation

The just compensation is equivalent to the fair market value of the property – that is the price agreed upon by a buyer not compelled to buy and a seller not compelled to sell.  This is to avoid a price that is either lower or higher than the actual market value.

The court will determine the just compensation with the aid of commissioners.  The court will appoint not more than three competent and disinterested persons. They are to submit a report with recommendations to the court after they have viewed and examined the property.   The court may wholly or partially accept or reject their report, securing the rights of both parties in either case.

Just compensation means not only the correct determination of the amount to be paid to the owner, but also payment within reasonable time after taking.  Without prompt payment, compensation cannot be considered just. (Republic vs. Lim, June 29, 2005) Read the rest of this entry »

State Powers: Eminent Domain

Posted by Admin | Posted in Philippine Constitution, Special Civil Actions | Posted on 16-07-2010

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The power of eminent domain involves the power and right of the state (through its government) to appropriate or take private property to be used for a public purpose. This process of taking is popularly known as expropriation. A compulsory sale to the government, it places a limitation on one’s property rights. That is why, before the government can validly take any private property, it must comply with strict legal requirements.  This is in accord with the Constitution which says:  “no person shall be deprived of property without due process of law”.pinoylegal

The following are the basic limitations on the exercise of this power:

1) It must be for a public purpose;

2) There must be a necessity for its exercise, which should be genuine and public in character; and

3) The owner of the private property must be paid just compensation.

But for local government units (province, city, municipality or barangay), the requirements are more specific.

1) There must be an ordinance enacted by the local legislative council authorizing the local chief executive, in behalf of the LGU, to pursue expropriation proceedings over a particular private property. pinoylegal

2) It is exercised for public purpose, use or welfare, or for the benefit of the poor and the landless.

3) There is payment of just compensation.

4) A valid and definite offer has been previously made to the owner but it was rejected.

5) It must be in accordance with RA 7279 (Urban Development and Housing Act of 1992), specifically:

a) Section 9: In the order of priority in the acquisition of land, privately-owned land ranks last.

b) Section 10: As to the modes of land acquisition, expropriation should be used only when other modes (joint venture agreement or negotiated purchase) have been exhausted.pinoylegal