Article of the Month -
February 2009
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Global Concerns in Compulsory Purchase and
Compensation Processes
Kauko VIITANEN, Finland and Ibimina KAKULU, Nigeria
This article in .pdf-format
(16 pages and 143 kB)
1) This paper has been prepared and
presented at the FIG Working Week in Stockholm, Sweden 14-19 June 2008.
Key words: Compulsory Acquisition, Expropriation, Statutory
Valuation, Compensation
SUMMARY
The basic principles and processes in compulsory purchase and
compensation are perceived to be quite similar even though the practice
may vary in different nations or regions. More often than not the
assessment of compensation which is described in technical parlance as
‘Statutory Valuation’ is usually influenced by local and national
statutes, enactments or laws that provide the basis upon which existing
professional standards and methods may be applied. This process
introduces some complication into the practice of valuation for
compensation that is not usually associated with other forms of
valuation. At an International Seminar on Compulsory Purchase and
Compensation held in Helsinki – Finland 6th to 8th September, 2007, a
number of issues were raised in connection with compulsory land
acquisition, compulsory purchase, expropriation, land take and other
nomenclature used to describe the use of eminent domain powers to obtain
land for public purposes. Presentations were made by over 40 speakers
from about 20 countries. Their experiences though localised were quite
similar overall and certain global concerns were highlighted
particularly the need for intervention in the form of global standards
and practice codes. This paper represents a synthesis of the issues
addressed at the seminar and highlights the potential challenges if the
concept of globalization of standards is to be extended to statutory
valuation practice, procedures or methods. The paper recognizes that
compulsory acquisition and compensation problems are associated with the
level of national and regional development of a particular country. This
is deduced from the similarities in experiences of various presentations
categorised by the level of development of a particular country. It also
suggests who the potential stakeholders are likely to be and their
respective roles in the development of global codes of practice for use
in the assessment of compensation in compulsory acquisition and
expropriation.
1. INTRODUCTION
During the Seminar on Compulsory Purchase and Compensation held at
the University of Helsinki (TKK), Finland, 6 – 8 September 2007
(Helsinki seminar 2007) several key issues on expropriation statutes,
processes and methods were raised and discussed. Accounts from different
countries represented at the seminar reveals that the similarities and
differences in expropriation and compulsory purchase experiences flow
along a continuum from poor practice to good practice with countries
fitting in at different points along the spectrum. Participants
expressed concern that despite existing differences in statutory
provisions of these individual countries, an international code on
compensation might be required to harmonize certain critical aspects of
the practice in order to achieve globalization of standards. The seminar
was organised by FIG Commission 9 (Valuation and Management of Real
Estate), in conjunction with the Baltic Valuation Conference; FIG
Commissions 7 (Cadastre and Land Management) and 8 (Spatial Planning and
Development), Finnish Association for Real Estate Valuation and Helsinki
University of Technology, Institute of Real Estate Studies. It received
support from the United Nations Food and Agriculture Organization (FAO),
World Bank, UN-Habitat and the Government of Finland particularly the
National Land Survey of Finland.
Compulsory acquisition or purchase is the process by which local and
national governments obtain land and premises for development purposes
when they consider this to be in the best interest of the community. The
process of valuation for compulsory acquisition of landed property is
governed by legislative statutes that vary from one country to another.
The term has a number of variants some of which are compulsory purchase;
expropriation; land-take or eminent domain. In all cases the owners or
occupiers are denied their property rights for overriding public
interest, public purpose or public benefit and are entitled to full,
just, fair, equitable and adequate compensation. Compulsory purchase is
an important tool in land acquisition although in many countries land
acquisition can often be arranged through other means such as by
voluntary agreements. In recent years discussion on the use of
compulsory purchase had been rather limited and new legislation,
practises and methods of valuation for compensations may have developed
and been adopted over the years. In organising the seminar, FIG
Commission 9 concerns were about how well these new legislations and
practices function and also whether the old methods and procedures might
have become ineffective or unpopular.
The major goal of the meeting was to intensify the discussion between
valuers, surveyors, real estate experts, financiers, urban planners,
researchers, teachers and decision makers and develop common ideas for
shaping the future of compulsory purchase and compensation in land
acquisition and takings. The seminar concentrated on a number of
objectives (Helsinki seminar 2007):
-To identify the legal structures and practices in compulsory
purchase and compensation in different countries,
-To study if compensation statutes, valuation methods and manners can
actually lead to full and just compensation and identify possible
shortcomings, and
-To find possible and effective solutions to solve the problems
especially in developing countries including best practices and those
principles that should be taken into consideration or those should be
avoided.
This paper presents a synthesis of the issues raised and forms the
basis for further action in the form of research, law and policy
reforms. A qualitative research methodology which involved an in-depth
review of the conference presentations using content analysis and
interpretation tools was applied to obtain our findings.
2. ‘PUBLIC PURPOSE’ AND EXPROPRIATION
Land acquisition for overriding public interest, public purpose, or
public benefit can be easily understood and accepted where the purpose
is to build a school, hospital, recreational facility or to provide
infrastructure and services that members of the public can physically
see and use. However, where in the process of acquisition a private
undertaking is able to profit from the taking of land at a price which
disregards the value of the land to the project, then there is bound to
be some form of resistance by the land owners (Denyer-Green, 2000). Some
projects may not pass the “public purpose” test because of subsisting
private interests and profit orientation motives. The issue of “public
purpose” within the context of compulsory acquisition and compensation
was addressed during the seminar. Alterman (2007) discussed the signs of
crisis in several countries that stem from a growing disparity between
law and practice and what these signs may mean for the future of the
concept of the “public purpose” as a basic tenet for legitimate land
expropriation.
Although there are many shared characteristics and rules about how to
determine compensation, there are also major differences among countries
in terms of details of the legal conditions for undertaking
expropriation. Alterman (2007) also asserts that “public purpose” is the
essence of expropriation and the core of its legitimacy and prescribes a
conceptual model of dimensions for use in determining the “public
purpose” in land-expropriation law and policy. Her presentation
anticipates and suggests the need for alternative tools and approaches
which are more democratic and fair. The authors identify with this
position particularly in terms of the need for definitions of public
interest, public purpose and public benefit. Kalbro (2007) reviewed
public interest and expropriation by private bodies in Sweden and poses
the question whether private can be justified? A three-point criterion
for the public interest test is that the benefits of the expropriation
must exceed its cost; the value of the new land use must be higher than
the existing use; the purpose of the expropriation must be important;
and the buyer needs a particular area of land for which the seller is in
a monopolistic situation. In the case of private expropriation, the
paper recommends acceptance, if the purpose is ”important” and a
specific piece of land is required.
3. EXPROPRIATION SYSTEMS
Expropriation systems describe the process through which land is
acquired and compensation is paid. Different issues on expropriation
systems were raised and discussed. Plimmer (2007) presented an overview
of the Compulsory Purchase and Compensation system in England and Wales
portraying the legal principles which govern the process of gaining
compulsory acquisition powers in England and Wales and the circumstances
under which compensation may be claimed. Issues regarding the equity of
the current provisions and potential for reform were outlined and a
brief introduction to the proposed United Kingdom betterment tax known
as the Planning-Gain Supplement. The conclusions are that the detailed
rules are complex and require reference to judicial interpretation and
also that the use of compulsory purchase powers is unpopular. To some
extent, the powers have been neglected in favour of buying by agreement.
There is, therefore, some level of skill shortage in the use of the
highly technical compulsory purchase and compensation process in the
United Kingdom.
This complexity and difficulty in interpretation is not restricted to
the United Kingdom alone. According to Voss (2007) compulsory purchase
and compensation according to the German Federal Building Code. The
German constitution allows expropriation only if common welfare requests
it i.e. the (common welfare clause), if the special purpose is fixed by
law, which regulates the kind and extent of the compensation, and if
there are no other ways with a lower level of interference to reach the
purpose, e.g. land readjustment instead of expropriation. In Germany the
expropriation is stipulated either on the federal level (Building Code)
or on state level, e.g. roads and protection of monuments. In practice
expropriation is carried out sparely but it is important that a well
balanced system exists. Mattsson (2007) reviewed the institutional
framework for compulsory purchase in Sweden. There exist two methods:
expropriation carried out by the Land court or expropriation for special
purposes carried out as a cadastral proceeding by a cadastral surveyor.
In both cases the expropriation permission will be decided by the
Government. The cadastral procedure is, however, faster and more
flexible. Knovles (2007) discussed the background and administration
processes in compulsory purchase of land for roads by the Crown in New
Zealand. The acting authority is the Land Information New Zealand which
also uses accredited private sector contactors in the process. Most of
the cases will be agreed by negations.
Ratcliffe (2007) examined issues related to the use or non use of
Compulsory Acquisition processes in Melbourne, Australia and highlighted
the existence of good practice procedures. In Australia compulsory
acquisition of land is authorised by the Commonwealth Constitution and
is set out in the State legislation. The Government Land Monitor plays a
fundamental role in ensuring accountability and transparency with
respect to land purchase and compulsory acquisition. This independent
audit body issues guidelines titled “Policy and Instructions for the
Purchase, Compulsory Acquisition and Sale of Land”, which are mandated
requirements for all property transactions undertaken by Victorian
government agencies.
Steinsholt (2007) examined the Norwegian experience of a
decentralized system of land use control, land acquisition and
expropriation and identified a number of issues such as lack of
standards on how the function on land use decisions connected with land
acquisition should be performed. Lack of an institutional framework,
lack of capacity and the preference for negotiators who do not have any
policy guidelines for their service are highlighted. There are no
standards of organisation; competence is lacking; procedures of land use
control are not in place and also that there are no land use specialists
and this calls for a Norwegian national discussion upon professionalism
within the public land acquisition institutions reforms.
Navratil and Frank (2007) investigated the interaction between
expropriation and the cadastre and presented a conceptual model for land
registration legislation in new cadastral systems. The simple cadastre
can be used as a framework in which to analyse questions of land
management independent of national particular solutions. The main goal
however should be to improve the protection of ownership rights in land.
The paper asserts that expropriation processes benefit from a well
organized land registration system and the level of support provided by
a cadastre can influence expropriation procedures. From the forgoing, it
would appear that expropriation systems are quite diverse in nature and
are based on enabling statutes and policy guidelines.
4. NEED FOR EXPROPRIATION AND ALTERNATIVES
Governments all over the world are usually faced with land use
demands for development and infrastructure provision. Although most of
these challenges are met through expropriation or compulsory
acquisition. There have also been suggestions for alternative approaches
and methods. Lehavi and Licht (2007) propose a novel solution for
“squaring the eminent domain circle” when large-scale, for-profit
development projects require the assembly of land from numerous private
property owners. Such situations are referred to as “anticommons” based
on the ’public purpose’ principles of compulsory acquisition and
compensation and often leaves landowners under compensated. The proposed
model is expected to open a promising new route for creating the right
incentives for private developers and for public authorities to exercise
eminent domain powers for land assembly only in development projects
that are truly welfare enhancing. Although the mechanism does not
purport to ensure that all parties involved will always be completely
satisfied, it does offer a significant improvement on the issue of
fairness and justice toward simple-rank landowners.
Yomralioglu, Uzun and Nisanci (2007) examined voluntary acquisition
of land in Turkey. The procedure of voluntary acquisition is usually
applied when a landowner wishes to obtain a construction permit from
local authorities and the cadastral parcel does not fulfil zoning
requirements (e.g. minimum length and width). The landowner is required
to find alternative solutions to meet the zoning requirements. The basic
principle is to re-demarcate existing cadastral parcel boundaries
according to the rules of zoning plans. Options such as boundary
exchange, land readjustment, subdivision and land consolidation were
discussed. Maasikamae, Jürgenson and Lihtmaa (2007) reviewed the
problems of land acquisition and expropriation for development in
Estonia. The presentation addressed voluntary tools of land acquisition
and suggests that this approach to land acquisition would be more
accepted if compared with the compulsory tools. A relationship was
established between planning and expropriation noting that the presence
of plans (detail and master plans) happens to be an important
precondition for land owners to accept the land expropriation.
Nuuja, Falkenbach, Havel & Viitanen (2007) reviewed the coercive
purchase of a missing part of a plot in Finland, a procedure which aims
to enable the implementation of a detailed level land use plan for
building purposes in situations where the real property division and
ownership do not correspond to the plan. The Finnish expropriation
tradition allows parties other than a public authority the right to
compulsory purchase and coercive purchase of a share in a common area or
coercive purchase of a missing part of a plot by a private land owner.
In all instances of expropriation the requirements of public need and
full compensation must be met. The paper focuses on the procedure of
coercive purchase of a missing part of a plot, regulated by the RFA
Sections 62-64 and recognizes that the significance of the procedure is
in the incentive it gives to the vendors to promote the plan
implementation through voluntary transactions. It also discusses the
shortcomings of coercive purchase.
5. EXPROPRIATION PROCESS, VALUATION AND COMPENSATION
There were several presentations on expropriation processes,
valuation and compensation. Valuation for compensation in compulsory
land acquisition is driven by the provisions of the Acts, Decrees and
other relevant statutory enactments guiding the process. This framework
usually specifies the basis and methods of assessment, as well as the
procedures, heads of claim and roles of respective parties. It is
influenced by the level of socio-economic development of particular
nations; their development needs, cultural norms and land-use patterns.
Also influential is the level of development of the appropriate national
professional body.
Deveikis, Aleksienė and Galinienė (2007) examined the development of
procedures and the role of valuation in compulsory purchase of property
for public needs and compensation in Lithuania. Single property
appraisal and mass appraisal systems are discussed. Good practice in
cadastre and real property registration in Lithuania encourages good
practice in compulsory purchase because information on market
transactions is available and very relevant and important in the real
property valuation, particularly in valuation in case of expropriation.
However, there often seems to be problems in determining the
compensations.
Kucharska-Stasiak (2007) analyzed issues of uncertainty of valuation
in expropriation processes in Poland and postulates that a weak legal
system; an unreformed land and mortgage register system; lack of local
zoning plans; and lack of capacity amongst valuers; collectively do not
allow the real property market to function efficiently. Uncertainty in a
market value basis for compensation was examined and suggestions that
market value cannot be recognized as a correct basis for calculating
loss incurred by the expropriated party because of uncertainty and the
hypothetical nature of market price. Issues such as the individuality of
value were considered using a special purpose building design for a
blind owner as an illustrative case for which a proper comparable may
not exist and suggests that the market value should only be indicative
of the lower limit of compensation. Also Zrobek and Zrobek (2007)
examine the current state of just compensation for real estate
expropriation in Poland and make proposals for changes. The study shows
that the principle of calculating compensation according to Polish law
leads to the conclusion that there is a fair amount of good will to
compensate owners of expropriated real estate for the loss that they
incur. Nevertheless, the law is not perfect. In many cases, persons
being expropriated feel aggrieved by the very fact of the expropriation
itself as well as by the amount of compensation offered to them. This is
particularly true in the case of elderly persons, who tend to feel
greater resentment caused by the loss of their real estate. More often
than not, they cannot accept new conditions in which to live or resume
their professional activity, particularly in cases where it is not only
land that is expropriated, but also buildings. The compensation equal to
the market or cost-based value of their built over real estate in some
cases is usually not sufficient to buy new real estate.
The problems in compensations were addressed by many others, too. Lin
(2007) discussed the protection of property rights through compensation
in Taiwan where currently the same method of valuation is applied to
both property taxation assessment and expropriation compensation. As a
result, the tax based value has proven to be significantly below the
market value. The existence of an ad hoc valuation rule in Taiwan in
which the local valuation committee is entitled to raise the announced
current land value for properties to be expropriated in the near future
has also resulted in some properties being over-compensated whilst
others remain under-compensated relative to market value. Salauyova
(2007) reviewed compensation in compulsory purchase of residential
property in Belarus. Since 2007 the compensation is assessed by special
organisations with qualified valuers. Compensation can be either
monetary or relocation. According to her the compensations are over two
times higher than the market value but the treatment of landowner is not
equal. Tomson (2007) interprets key issues in valuation for
expropriation in Estonia where valuation is carried out by private
valuers and not by valuers in public authorities. The main issue
addressed is the contradiction between market value and economic loss
because in many cases there is no connection between market value and
losses from point of view of property owner. He concludes that it is
complicated to develop legislation because of insufficient feedback from
the practice and at the same time practice is poor because of gaps in
legislation.
Argerich and Herrera (2007) make comparative analysis of
expropriation laws in force in the Argentine Republic to identify
distinctive features that appear in the different jurisdictions and
emphasize the need for unifying criteria in order to guarantee an
integrally fair value. The National Constitution of the Argentine
Republic recognizes the subjective right to private property. To fulfill
the development of public utility, the State can deprive the owner of
real property on a compulsory basis, following specific procedures and
paying a prior compensation, in money, integrally single and fair.
However proceedings established by Law in the different Argentine
provinces for the initial determination of previous compensation to real
properties expropriation indicate the enforcement of diverse criteria
which impose, in most cases, the estrangement from any conciliation
form.
Mangioni (2007) considered the epistemology of value in the
assessment of Just Terms compensation in Australia. The principles which
govern the assessment of compensation in Australia were examined and
gaps identified gaps in the parity of compensation that impact on some
parties in the compulsory acquisition process. The epistemology of value
in the assessment of Just Term Compensation provides a construct in
which the commercial assessment of value can be defined in settling
compensation matters. The basis of the argument supporting the
compensation assessed is important and the presentation suggests that
valuers establish points of agreement and differences in expediting the
resolution process. This can only be achieved when valuers assume the
role of determining market value when they act as advocates, regardless
of whether they act for the acquiring authority or dispossessed party.
Elliott (2007) investigates the conflicts in infrastructure provision
and property values in Australia and presents a conceptual model of risk
perception, amplification and worsening. The developed conceptual model
facilitates understanding of the attitudinal component of stakeholder
concern in terms of risk perception and considers that the land
acquisition process itself is crucial to the risk perceptions of
affected land owners. It facilitates the explanation of variations in
worsening associated with the provision of High Voltage Overhead
Electricity Lines (HVOTL) and links these value impacts to factors that
cause variations in public perceptions of infrastructure hazard. The
conclusion is that risk perception and its assessment influence buyers’
and sellers’ attitudes to decisions about real estate price and value.
See also Crawford (2007) who e.g. pointed out the role of solicitor and
the work together with all stakeholders.
Norell (2007) addressed the issue of market value as a fair and
objective measure for determining compensation in compulsory acquisition
of land in Sweden. The owner’s satisfaction with market value payments;
fairness with respect to the possibilities of acquiring an equivalent
property; whether the market value is an objective measure for
determining compensation and how uncertainty of valuation could be
accounted for was the main focus. According to him the market value is
normally too low for a property owner to feel been fully compensated.
Because of that he recommended to use a higher value i.e. “safety”
margin, however, yet taking into account that the level of compensation
should result in a fair balance between public and private interests.
Finally, Heinonen (2007) discussed the concept of ‘quality
management’ which usually is associated with designing, developing and
implementing a product or service. The critical success factors of an
expropriation process are identified as high quality of the compensation
valuation procedure; uniform processes in all units; reliability of a
cadastral system, customer satisfaction. The ‘tools’ of the NLS quality
management system include clear process and quality responsibilities;
detailed process and product descriptions, process instructions, manuals
and standards. The sound reputation of the NLS as the expropriation
authority is, among other things, based on the strong process based
quality management system.
6. COMPULSORY ACQUISITION IN DEVELOPING COUNTRIES
There were four papers in this category which addressed compensation
issues in developing countries. There are a few examples world wide
where pro poor approaches to compensation and expropriation have
occurred and research is generally lacking in this field. Westman (2007)
discussed the need for pro poor approaches to compensation and
expropriation in developing countries. The presentation focused on
forced evictions and compensation and emphasized the need to
continuously improve land administration tools to include the urban
poor. The role UN-Habitat has played in facilitating the creation of a
Global Land Tool Network (GLTN) for the development of pro-poor and
gendered land tools was also highlighted. To tackle the challenges in
developing a flexible infrastructure and standards organisations like
FIG could play a significant role in developing pro poor approaches to
compensation and expropriation in developing countries. Landford (2007)
examined power relationships in compulsory land purchase from a
grassroots and human rights perspective and suggests that compulsory
acquisition proceeds rapidly where the political, economic and legal
power of those affected is weakest. Within the last decade, large-scale
public infrastructure projects - dams, roads, electrical networks, major
events like Olympics, have resulted in millions of people being forcibly
evicted city’s appearance. Also the definition of ‘public purpose’ is
increasingly stretched to include private purposes.
Nuhu (2007) examined the process of land acquisition and compensation
in the development of the new capital territory Abuja, in Nigeria, and
reveals that the existing provisions of the law cannot compensate
dispossessed land owners adequately. It attributes the controversies
associated with compensation to the provisions of statutory methods of
valuation contained in the Land use Act (LUA) and suggests the need for
reforms in statutory valuation processes in Nigeria. Kakulu (2007)
reviewed ‘valuation process’ issues in the assessment of compensation in
compulsory acquisition of land in Nigeria. Particular reference was made
to the process of land acquisition and compensation for the construction
and development of oil and gas production infrastructure in the Niger
Delta region. The framework of analysis was within the context of
conflict assessment and resolution. Some of the factors responsible for
the assessment and payment of inadequate compensation to expropriated
land owners is believed to contribute to the current crisis in the Niger
Delta region. Valuation for compensation unlike other forms of valuation
can be subject to scrutiny by other parties such as civil society and
human rights groups if there is an outcry of inadequacy and in order for
valuers to be protected, standards are required. In terms of
accountability, valuation for compensation is not only expected to
satisfy professional standards of valuation but in addition,
constitutional provisions and international requirements for just, fair,
adequate and equitable value must be met. It identifies lack of
transparency; lack of professional standards; bad governance and an
underlying fabric of corruption as being responsible for inadequate
compensation assessment and payment.
7. HISTORY AND DEVELOPMENT OF EXPROPRIATION
There were five presentations in this category and with each
addressing different issues on the history and development of
expropriation. Gregory (2007) discussed on the development of Australian
law which was modelled on English law. Grover (2007) handled the
development of compulsory purchase in the transitional countries of
Central and Eastern Europe since the Soviet era. Those countries that
have joined to EU have spurred to develop fair systems, e.g. because of
adoption of European Convention on Human Rights as condition of
membership.
Zaleczna and Havel (2007) discussed the institutional changes, social
capital and old expropriation consequences in Poland and examine
previous acquisition and recent claims for the land back or for unpaid
compensation. The paper considers issues such as the form of restitution
in such cases and the limits of the claim and considers possible
solutions and acknowledges that although post-socialist reforms have
occurred in Poland, there is still the lack of a general restitution law
and that this introduces risk and uncertainty in the property market.
Sometimes justice on restitution is given after 40 years and it is
difficult for valuers to gather enough data to value the historic
property. The Polish authorities and society have had to deal with a
variety of restitution claims that had originated under the totalitarian
regime, and they have had to act in a manner ensuring that the rights of
all those wronged are given equal consideration. Restitution is
necessary to build the institutional framework for the real property
market in Poland. Zrobek (2007) discussed proposed changes to the
principles and procedures of real estate expropriation in Poland after
1945 while Maasikamae (2007) reviewed some of the problems of land
acquisition and expropriation for development purposes in Estonia
8. FAO/WB INITIATIVE
A lot of attention was been given to the background and context for
the FAO/World Bank Initiative on and draft guidelines on Compulsory
Purchase and Compensation. There were three presentations in this
category. Hilton (2007) presented a case study on Ethiopia; Knight
(2007) presented an overview of the Draft of FAO/WB Initiative on
Compulsory Purchase and Compensation in the form of Land Tenure Studies
Series Guide to Compulsory Land Acquisition and Compensation. Some of
the issues raised included valuation and compensation in complex
situations such as partial rights, religious sites, extended families,
customary land and informal rights. Policy and implementation issues
surrounding resettlement as a form of compensation were discussed along
with the need for individual countries to draft their own resettlement
laws that promote fairness, equity, and justice. Keith (2007) discussed
some of the critical issues in compensation valuation and the need for
an international code. A six point check list for compensation was
outlined to include the following - who can claim; compensation for land
taken; compensation for other losses; decrease in value for other land
held; increase in value of other land held; and prompt payment. Late
payment of compensation re-presents a situation for claims about
inadequacy of compensation.
9. SPECIAL CASES WITH INFRASTRUCTURE
There were five papers in this category which addressed different
issues connected somewhat with compulsory acquisition and compensation.
Orni (2007) discussed compulsory acquisition for tunnels in Israel and
Sturgeon (2007) presented an investigation into the impacts of
compulsory acquisition of subterranean property interest for transport
infrastructure projects in Australia and its effect on property values.
Graham (2007) presented problems to legalise an existing road over Maori
land in New Zealand where external factors affected negotiations and
made the municipality were not willing to use compulsory acquisition.
Korhonen (2007) examined whether land expropriation supports innovative
procurement in road projects in and concludes that it does support
innovative procurement practices in road projects.
Kotilainen (2007) analysed the role of different actors in conflict
management in highway and railway projects in Finland based on recent
legislative and procedural reforms. The presentation recommends the
application of conflict resolution and management theories as an
analysis tool. It addresses the issue of inequality introduced into the
process where the informing regulations vary between the local
inhabitants and those living elsewhere and as such all property owners
are not put in an equal position. Another issue of increasing inequality
relates to an agreement-based land acquisition in which the authorities
use their unilateral discretion. The presentation concludes that,
conflict theories adapted to Finnish circumstances may be an approach
that is applicable for analysing the actions, the actors and the roles
of the actors in route projects.
10. FINDINGS
During the seminar there were also three workshops and a final panel
discussion. In this chapter the discussions are reviewed based on the
notes of the writers and the presentations above. Concerning the
procedure of expropriation it can be observed that, from the perspective
of the acquiring authorities there is a need for a speedy timeframe, low
costs process for compensation, avoidance of external costs of
expropriation, and: there should be sufficient resources for
expropriation. On the other side, from the perspective of affected
occupants, users, owners there is the need for transparency and
information, avoidance of expropriation (generally - it has to be
absolutely necessary), a proper planning and negotiation process and a
fair compensation. Those issues are also relevant for foreign investors.
Further the interests of women/men, landlords/tenants, formal/informal
and indigenous and customary have to be recognised; resettlement can be
an option in certain situations, if possible to be combined with rights
to return.
Technical expertise is required and decent salaries are important to
avoid undesirable situations when professionals are concerned. All these
can be supported by: provision of technical expertise, development of
guidelines on particular issues, expropriation-related land tools: e.g.
better planning processes, compensation, enumeration, conflict
resolution. There is also the need for the provision of more resources
for acquisition, availability of sufficient professionals, advocacy
support, legal support, international and national complaint mechanisms,
while training also remains a key issue.
When assessments and compensation come into the process there is a
need for uniformity based on (international) standards. Transparency,
equity and free public access to property sales information are a basis
for success and should be considered to increase the amount for
compensation well above any form of market value to achieve a quick
acquisition process and to avoid wasting time and money on lengthy
negotiations, the state should even have a limited time to agree on the
quantum if compensation - if the state cannot agree on compensation in
that time frame the state should loose the right to acquire the land.
When standardisation comes in it will be necessary to provide a single
definition for the term of value - which countries can amend for their
purposes as appropriate.
Where the co-operation FIG/FAO is concerned ´best practices´ should
be analysed to understand the valuation and compensation processes. It
was also suggested at the seminar that there is the need to establish an
international committee of experts to advise countries with specific
problems. Guidelines should be on the necessary skills and support
organisations to develop skills and capacity as well as relevant
standards for compensation, assessment definition and procedures. The
need for an authorising or licensing system for specialist valuers and
other experts was discussed as well as the creation of independent and
liable professional bodies to inform all parties. Mediation works well
in practise, appeals could be skipped. Landowners should have a choice
between resettlement and financial compensation and nominal values
should be used in that situation.
Valuation as a process lends itself to criticism, as there is no
universal answer to the question of value. Issues bordering on the
purpose-of-valuation, value-to-whom, statutory requirements and valuers
subjective judgment are key issues that significantly affect the final
estimate of value and cannot be ignored. What is valued is a bundle of
legal rights and it is important that valuers have a clear understanding
of titular rights and obligations. Any existing legislation that affects
the ownership and use of land and buildings is part of the tools with
which a valuer must be armed to do an exhaustive valuation. The
statutory prescription of valuation methods for compulsory purchase or
acquisition in most countries introduces additional complications into
the valuation puzzle. What is allowed for by statute and what obtains in
practice can be quite different. Valuation is concerned with an interest
in land, commonly freehold, leasehold and sub leases, and it is very
important for the valuer to establish right from the onset, what sort of
interest he is required to value. The issue of land tenure is also of
considerable importance where valuation is concerned since valuation is
an assessment of the worth of rights existing in or over a property.
Many countries have some form of freehold (fee simple) title but there
may be variations in the bundle of rights that can be conveyed, and
hence, differences in what may be assessed as a transferable right for
valuation purposes.
Part of our findings is that valuation for compensation in most
countries is controlled by government through multiple enactments. In
others, it is prescribed for eminent domain valuations and sometimes for
market valuations. The key concerns have to do with the following issues
which are common to the process irrespective of country of origin
namely:
1. Purpose of Acquisition
2. Basis of valuation
3. Methods of valuation
4. Heads of Claim
5. Definition and interpretation of terms used
11. CONCLUSIONS
The findings from the seminar reveal that the systems, procedures and
practices in compulsory purchase vary a lot between countries. It seems
according to this sample that there exists in every country a system for
compulsory purchase although there is much resistance for using the tool
and in many countries the situations are handled mainly through
negotiations. However, it seems that there are also situations when
compulsory purchase seems to be the only way to solve some problematic
situations in land use. On the other hand, in some countries the tool is
used more regularly as an effective tool for land acquisition, and it
seems that the use of the tool can be also well accepted. The most
problematic aspect in the use of compulsory purchase seems to connect to
compensations; it is really a difficult matter with a lot of
uncertainties. In addition there are no international standards dealing
with assessment of compensations nor associations or conferences
dedicated to discuss problems in compulsory purchase and compensations.
There are of course good experts in every country specialised to the
system in the particular country but even those countries there are not
normally much discussion about these matters. It seems that the experts
in this field has been left alone with there procedures and worries. And
without discussion the systems are not developing at least effectively
into the same global direction. Clearly there is a need for new
openings. At least a few potential options seem to be available:
international standards or recommendations for good practices, research,
education, exchange and dissemination of knowledge and know-how, and
external country reviews.
Current research recognizes the need for international standards and
codes of practice to be developed but there are indications which
suggest that the development of such international standards is likely
to face many challenges. Although the statutory nature of this aspect of
valuation practice introduces some additional constraints to the
development of global standards, such standards, if developed, could
serve as a land tool for accountability in national compulsory purchase
and compensation processes. It should therefore be preceded by a
comprehensive assessment of existing global processes and systems to
discover their commonalities, similarities and differences, and this
could be used as a basis on which to then explore the feasibility of
international standards. However, international recommendations for good
practices in compulsory purchase would be a good starting point because
they can be established without bigger research projects. Here FIG
together with FAO could act as the main force in preparation
recommendations and disseminating the information.
In any case, there is a growing need for intensive research on this
subject. A suggested research methodology will consist largely of
document reviews of enabling statutes, policy frameworks and
professional practice codes of in selected countries within the United
Nation states. The main parameters for consideration within the enabling
legal framework will be their respective combinations of different parts
of the process listed above. Classification of the samples and selection
criteria should be based on developed, emerging and developing country
profiles, and the presence or absence of properly developed professional
institutions and guidelines. Socio-cultural patterns in different
countries will also be considered. The proposed output from the research
is a comprehensive and global account (or catalogue) of different
statutory processes, systems, terms, procedures and methods currently
existing and in use by professionals in valuation for compensation. Such
a comprehensive account will show the differences, similarities and
commonalities and should provide a clearer picture of the likely
challenges this would impose in the development of international
standards and codes of practice, and form a good basis for education and
exchange of knowledge and know-how.
Research results and information by itself might give too little
incentive for countries to be interested to analyse and if needed to
change there systems in compulsory purchase. A good tool here could be
external evaluation of the systems in a country. An expert group from
foreign countries could analyse the systems in a country and write a
review with recommendation for needs for changes. These reviews could
help authorities and politicians to adapt the common practices and
rules, enhance thinking of problems in compulsory purchase and
compensations, and add acceptance of uniform and transparent ways to
act. It should be think over if e.g. FIG could create a practice for
reciprocal country reviews.
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CONTACTS
Prof. Kauko Viitanen
Helsinki University of Technology
Department of Surveying
P.O. Box 1200
FIN-02015 TKK,
FINLAND
Tel. + 358 9 451 3870
Fax + 358 9 465 077
E-mail: [email protected]
Mrs Iyenemi Ibimina Kakulu
Department of Real Estate and Planning
University of Reading
Reading RG6 6AW
UNITED KINGDOM
Tel. + 44 7766593660
Email:[email protected]
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