Motorways and expressways have long been viewed as a means of attracting investment and advancing the economic situation of the given locality. The construction of motorways is, however, a costly and time-consuming endeavour right from the very beginning in the authorisation process phase, and the entire process is rife with problems. New legislation came into force in early June 2017 in an effort to promote the construction of motorways. It is intended to reduce the time required for the authorisation process.
Earlier legislation provided that in order to obtain a building permit, the applicant had to demonstrate ownership or other right to the land to be built upon or the structure to be demolished. This other right could be a lease, contract or future contract, or an easement agreement granting the right to build or modify. This meant that a building permit could only be issued if an agreement was in place with the owner of the land at issue. If no purchase agreement was made with the owner of the land or structure, the land or structure could be expropriated after the lawful conditions were satisfied. The expropriation process itself is not without delays due to tactics that can be employed by the owners of the land who, in their attempt to gain profit, abuse all the procedural means available to postpone the issuance of a building permit in order to get the highest possible price for the sale of their land and structures. The new legislation should prevent these tactics.
The issuance of a building permit is no longer contingent upon proving ownership of or other rights to the land to be built upon or the structure to be demolished. It will be issued if expropriation proceedings are initiated in respect of the land on which the motorway will be built or in respect of a structure that must be demolished as part of the construction of the motorway. Expropriation of land and structures may only be carried out to the necessary extent and in the public interest for the purpose laid down by the legislation. Public interest must be demonstrated in expropriation proceedings and a reasonable price must be paid for the property. It must also be shown that the objective of the expropriation cannot be achieved by agreement or in any other manner.
It should be noted, however, that the new legislation does not apply to fixed structures (residential and non-residential buildings), which are still subject to the original requirement of demonstrating ownership of or other right to the land in order to obtain a building permit.
Although a building permit may have been issued, the builder may not commence construction of the motorway in accordance with the building permit before becoming the owner of the land or acquiring other rights in the land. However, work may be carried out, but only to the extent set out in the provisional possession decision.
The investor (expropriator) submits an application for a provisional possession decision to the authority deciding on the expropriation. Provisional possession may be awarded to the expropriator if the public benefit of the expropriation is deemed greater than maintaining the existing rights of the owner. This is a very generalised condition and provides plenty of leeway for the competent authority in deciding on expropriation. Work carried out during provisional possession must be confined to the conditions of the building permit for the construction of the motorway and must allow for the expropriated property to be returned to its original condition following the work. The owners' opportunities to appeal the provisional possession decision are limited by the fact that the provisional possession decision has no suspensory effect, meaning that construction work may begin right away. Also excluded is the possibility of the administrative court awarding a suspensory effect in an action against the provisional possession decision. The provisional possession decision also affects the rights of third parties in that when the expropriator obtains provisional possession, the rights arising out of lease agreements and easements (apart from any easements arising out of law) in respect of the expropriated property or any part thereof are not applicable.
The owner of the expropriated property and the easement holder, whose rights are inapplicable upon acquisition of provisional possession, are entitled to financial compensation during the time of the provisional possession. The authority deciding on the expropriation will also decide on the financial compensation.
If work does not begin in accordance with the provisional possession decision within six months of the effective date of that decision, or if the building permit issued for construction of the motorway is cancelled or becomes invalid, the expropriation authority will decide on the application of the expropriated property owner to cancel the provisional possession of the property at issue. Once provisional possession has been cancelled, the expropriator must return the property to its original condition and surrender it to the owner; this is without prejudice to the right of the owner to compensation for any damage incurred.
|Daniel Futej and Rudolf Sivák|
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