What is expropriation and what does it consist of?

Expropriation and the Constitution of the Republic of Poland of 2 April 1997

The issue of expropriation is also reflected in the Constitution. In Article 21 of the Constitution, the legislator has undeniably placed great emphasis on the protection of property, declaring that the State itself shall safeguard this fundamental right. However, the aforementioned promise contains a significant exception in the second paragraph of the said article. The legislator unequivocally states that the protection of property is subject to a specific lex specialis in the form of expropriation. In order to clarify the scope of the institution, the legislator clearly specifies the grounds on which expropriation is possible, namely:

• public purpose
• fair compensation

Can expropriation be carried out in favour of a natural person?

In accordance with the provision contained in Article 113(1) of the Act on Real Estate Management, expropriation may be carried out exclusively for the benefit of the State Treasury and local government units. Applying a literal interpretation of the above provision*,* we may infer a contrario that the legislator does not permit the institution of expropriation where the beneficiary (the entity receiving the property) would be a natural person or a legal person outside the broadly understood sphere of the state. Furthermore, the legislator rightly adds that property previously belonging to the State Treasury or a local government body cannot be subject to expropriation, as this would strike at the very heart of the institution in question. We would be dealing with a definitional logical fallacy of idem per idem.

What is the subject matter of expropriation?

The above considerations have focused primarily on the subjective sphere of the institution of expropriation. Nevertheless, the objective aspect of the concept under analysis is also important. In specific cases, movable property may be subject to expropriation; however, from a practical legal perspective, the most significant subject matter of the institution of expropriation is immovable property. Pursuant to Article 113(3) of the Act on the Management of Immovable Property, expropriation may cover both the entire property and a part thereof separated as required. At the same time, the legislator rightly provides that where the non-expropriated part of the property is unsuitable for proper use for its existing purposes, at the request of the owner or the holder of a perpetual usufruct right, that part shall be acquired by agreement in favour of the State Treasury or local government bodies, depending on the party in whose favour the expropriation takes place.

Compensation arising from expropriation

As already indicated above, a relevant ground for expropriation is compensation, which in legal terms, based on the Constitution of the Republic of Poland, is described as ‘fair’. The purpose of such compensation is to make up for the loss incurred, for example, upon the transfer of property to the State. Pursuant to Article 129 of the Act on Real Estate Management, the authority empowered to determine compensation is the district administrator, who performs tasks within the scope of government administration. The form used to implement the institution of expropriation is a decision. The amount of compensation resulting from expropriation is subject to the opinion of a property valuer, whose task is to determine the value of the property. The amount of compensation is determined according to the condition and intended use of the property on the date of deprivation or restriction of the rights arising therefrom. Furthermore, a significant aspect is the possibility for the person entitled to compensation to claim the provision of replacement property. Such property is granted from the resources of the relevant local authority or the State Treasury itself, depending on the entity that takes possession of the expropriated property.

Summary

The institution of expropriation is a fundamental concept in legal transactions. It facilitates the country’s development, inter alia, through expropriation for the construction of roads or other investments planned by the State. The legislator, however, has established appropriate grounds for expropriation, which include public purpose and fair compensation. Thanks to this mechanism, we see greater preventive protection of the fundamental value that is the right to property.