Remedies of expropriated persons

Recourse for abuse of power

The declaration of public utility (DUP) can be challenged before the administrative judge by means of a recourse for abuse of power (REP). This procedure is used to get a administrative act deemed illegal.

Who is the competent judge?

If the DUP is taken by decree, the Council of State is competent to judge the appeal directly.

If the DUP is taken by arrested, on administrative tribunal of the location of the property concerned by the expropriation measure is competent. Decisions of administrative tribunals may be appealed to the administrative courts of appeal. The judgments of those courts may then be challenged by an appeal in cassation before the Conseil d’État.

Who can challenge the DUP?

Anyone who has a personal, direct and definite interest in challenging the DUP can take legal action.

In practice, these are mainly:

• Owners whose property is threatened with expropriation
• Tenants
• And rights holders on the property concerned by the expropriation.

What are the grounds for challenging the DUP?

The declaration of public utility, as an administrative act, must comply with rules of jurisdiction, form and substance. The grounds for challenging this act fall into two categories: external illegalities and internal illegalities.

The external illegalities are linked to the fact that the perpetrator of the act does not have the requisite competence and to the failure to comply with the rules of form and procedure. The UPD may be canceled, for example, if:

• It was not taken by the competent authority provided for by law
• The investigation file is incomplete or a mandatory mention has been forgotten (formal defect)
• The public inquiry was implemented irregularly due to the absence of a mandatory consultation (procedural defect).

The internal illegalities concern the purpose and motives of the UPD. For example, the DUP can be canceled if:

• It serves a private interest instead of a general interest (misuse of power)
• It violates higher rules or documents (e.g. PLU)
• The operation is not in the public interest or if its usefulness is considered insufficient.

What is the deadline for bringing the case before the judge?

The appeal must be filed within 2 months of publication DUP.

The starting point for this period depends on the authority which took the decision:

• If the DUP is taken by decree, the 2-month period begins to run from publication in the Official Journal
• If the DUP is taken by arrested, the two-month period shall begin to run from the display in town hall of the act.

What are the effects of canceling a DUP?

If the declaration of public utility (DUP) is annulled before the expropriation judge has issued his order, the expropriation judge cannot order the transfer of ownership. In this case, the beneficiary of the expropriation cannot take possession of the property.

Right of abandonment

The right of abandonment allows the owner whose property is within the scope of a declaration of public utility (DUP) to ask theexpropriating to buy his land.

The exercise of this right can be seen as an indirect remedy available to the owner against the effects of the DUP: by allowing him, after the expiry of a period of 1 year from its publication, to give formal notice to the expropriator to acquire the property, this mechanism offers a means of reacting to the damage to the property and of provoking a decision on the future of the property. The owner thus obtains a clear answer on the future of his property and is no longer kept in a situation of uncertainty related to the expropriation project.

To exercise his right to abandon, the owner must send a formal notice to the expropriator. This is done by registered letter with acknowledgement of receipt. A copy must be sent to the prefect for information.

As from the receipt of this letter, the expropriator has 2-year delay to pronounce. This period may be extended by 1 year.

The expropriator may:

• Acquire the property amicably, by negotiating directly with the owner
• Continue the expropriation procedure, respecting the framework set by the DUP
• Abandon the expropriation process. The DUP authorizes the administration to initiate expropriation proceedings, but does not oblige it to do so. The expropriator may therefore decide to renounce it.

Who is the competent judge?

In principle, the administrative court of the place where the property concerned by the expropriation is situated has jurisdiction.

However, if the owner relies on the illegality of a declaration of public utility (DUP) made by decree to challenge the assignment order, it is the Council of State that examines the appeal.

Who can challenge the assignment order?

The transfer order may be challenged by any person directly concerned by the expropriation proceedings. These are mainly:

• the owners of the property listed in the order, whether natural persons or morals
• tenants or occupants with a right to the property (e.g. usufructuary).

What are the grounds for challenging the assignment order?

The transfer order may be annulled if certain irregularities are found. These are:

• Formal defects: this is the case of an order that is poorly motivated, incomplete or made by a person who did not have the required competence
• Of defects of procedure : this is the case, for example, if the piecemeal survey was not carried out correctly, if the owners were not informed, or if certain mandatory steps were not followed.
• Substantive defect: this is the case when the order exceeds what the declaration of public utility (DUP) authorized. For example, if the order relates to parcels that are not required for the project as validated in the UPD.

What is the deadline for bringing the case before the judge?

The owners must bring the case before the judge within 2 months from the notification which was made to them of the assignment order.

What are the effects of canceling the assignment order?

If the assignment order is set aside, the judge cannot make the expropriation order. There is therefore no transfer of ownership or taking possession of the property by the beneficiary of the expropriation.

The expropriation procedure is thus stopped as long as a compliant decision has not been adopted.

What is the deadline for bringing the case before the judge?

The Court of Cassation must be seised within 2 franc months from the notification the expropriation order. The notification must be made by meaning of a commissioner of justice.

The appeal shall take the form of a written declaration addressed to the Registry of the Court of Cassation.

One counsel to counsel is mandatory for this procedure.

Who can act against the expropriation order?

Any person affected by the expropriation order may appeal.

In practice, these include:

• Owners mentioned in the order as owners of the expropriated property
• People who should have been designated as real owners and who made themselves known to the administration in time
• Some co-owners holders of real rights on the common areas expropriated in a building in condominium
• Some individual of an expropriated property
• Holders of a right in rem may act if the expropriation relates solely to that right
• Of the expropriator if he considers that the decision does not give him satisfaction (for example when the judge refused the expropriation).

What are the grounds for challenging an expropriation order?

The expropriation order can only be challenged for lack of competence, excess of power or a procedural defect.

There is incompetence where the decision was given by a court which did not have the legal power to do so. This is the case, for example, where the expropriation order was issued by an ordinary judge (not the expropriation judge) or by an expropriation judge who was not territorially competent.

The defect in form concerns non-compliance with mandatory formalities. These include, for example:

• Failure to notify all interested owners of the filing of the parcel investigation file
• The notification shall be sent to an address different from that given in the attached parcel statement
• The late notification which prevented the expropriated party from making its observations.

Finally, theexcess of power refers to particularly serious irregularities committed by the expropriation judge. This is the case, for example, of:

• The ignorance of a co-owner throughout the procedure
• The absence of any mention of the identity of the co-owners of the expropriated parcel in the expropriation order
• The pronouncement of the transfer of ownership while the declaration of public utility or the transfer order are lapse.

What are the effects of the appeal in cassation?

The quashing of the expropriation order entails its nullity and, in principle, the restitution of the property to its former owners.

However, there are two exceptions for which restitution is not possible:

• If there is already a public work on the expropriated property
• If the property has already been resold, the former owner cannot recover it, but can obtain compensation from the expropriator.