The affected owners will suffer expropriation, they must give up without compensation 5 to 15 % of their private land to the municipality. |
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Wave of expropriations threatens many property owners
Mass expropriation without compensation: The expansion of the public space without regard to citizens' losses is progressing
By Horst Boldt, 04.04.2016
The freedom to dispose of private property is an important human right. The application of the zoning law to existing and previously approved building zones is particularly problematic, because as a consequence the building permits previously granted by the same Parliament are thereby becoming invalid. In part this has serious consequences for affected property owners. Already developed plots lose their status as building plots.
Andorra is therefore breaking its own legal framework that forbids expropriations without compensation. The ultimate insult: owners who want to keep their legally acquired private ownership must pay compensation to the municipalities. The law requires a significant sacrifice for property owners. The burden of construction works for the public sector along with the extortion of special payments could drive a small property owner into economic ruin.
The term 'expropriation' does not appear in the corresponding law. The trick: the expropriation is hidden behind the words 'cessió gratuïta' [free cession]. This is particularly insidious because property owners are legally obliged to give up a portion of their property, free of charge, to the local authority.
A fact unique to Andorra is that the streets are often still the sole property of the former developers and landowners. These rubs their hands together knowing that any failure to fulfil their obligations are now to be paid for by others, by law.
This expropriation, without compensation, of property which has been obtained only after years of hard work and saving, has led property holders to a loss of confidence in the country's institutions.
The zoning and construction planning law 'Llei del Sòl' [1] stipulates that all roads, squares and paths, which are in private hands, are public. The affected owners will suffer expropriation without compensation. A proof in the form of case-special evidence of public interest, as derived from the Constitution, is no longer necessary. Private roads or semi-public roads are no longer permitted.
The adjacent owners are worst hit. Furthermore they must also give up without compensation 5 to 15 % of their private land to the municipality [2]. The 'free cession', forced by the law, of honestly acquired property is an expropriation without compensation and is contrary to the Constitution [3]. Not only that, the private owners have to redevelop (e.g. by installing all services) the areas at their own costs as specified by the local councils. This may mean that existing, previously approved, parts of buildings and enclosures requiring retaining walls must be torn down.
To give effect to the changes required by the municipal administration the affected owners and adjacent owners must constitute and join a forced association 'Associació de promoció urbanística' [urbanistic promotion association] and assign by themselves the necessary contracts to contractors, so the law states [4]. The cost per single-family home can rise quickly to astronomical heights depending on the location of the property because of steep, rocky terrain in Andorra's mountains. Since the time of the construction boom, the still oversized and spoiled Andorran construction sector jumps for joy. Based on forced investments Andorran contractors are guided through the self-inflicted economic crisis. Prime Minister Martí has said that the overall development plans of the municipalities are a very important weapon for the enforcement of measures to support the construction industry [5]. The powerful position [6] of an absolute majority in parliament helps to favour special interests. Politicians completely ignore their wrongdoing.
So then homeowners, retirees and passive residents find themselves in the most unexpected situation, to become a contracting authority for a construction project for the public sector, with the result that they must take responsibility for the execution of the construction project.
That membership of an association is a right and not an obligation, is a general consensus; not so in the Principality of Andorra. The Andorran Constitution, as the mother of all laws of the country [7], and the Universal Declaration of Human Rights [8] lay this down very firmly, but find no practical implementation. Both standards are completely disregarded by the 'Llei del Sòl'. The 'Universal Declaration of Human Rights' (UDHR), valid in Andorra, clearly states: “No one may be compelled to belong to an association.“ But that's what the law demands, namely the compulsory establishment of associations.
Whoever has no money today, has no roof over his head tomorrow
For owners who can not pay for lack of financial resources, the other owners will have to pay and then try to recuperate this money from their neighbours themselves.
In case of a lack of assets a compulsory mortgage is recorded or the property will be seized and disposed of at foreclosure auction. Neither will be conducive to neighbourly relations. In the event of a modest tightening of interest rates, the creeping, complete expropriation will accelerate in a runaway fashion.
The country is looking for new homebuyers
Whoever thinks he can still sell his property quickly, is mistaken. Owners who wish to sell have to provide a certificate from the municipality on the completion of the construction work, or accept that in the bill of sale a passage is included, which stipulates the implementation of the construction project which remains to be executed.
In this case, the buyer must undertake to carry out the construction project. However, this is not advisable, as, if the power of the free market eventually forces parliamentarians to recognise the unconstitutionality of this controversial law, the buyers who have approved the stipulation contractually will likely be stuck with the cost.
Under these conditions each property purchase can quickly become an incalculable expense trap. Prospective buyers who believe the advice of real-estate agents, could be left with nothing. Prospective buyers will withdraw in the face of this incalculable risk. The costs are in some cases already well above the value of the property. These are highly unattractive conditions for homebuyers.
Eroded sense of justice: the law is the law
The law ignores numerous fundamental rights guaranteed in the Andorran constitution; this doesn't seem to bother the rulers in the slightest. Petitions [9] of concerned citizens have been unsuccessful.
Further, the draft of the law to restore the acquired rights [10] by the lifting of the retroactivity on owners, which had been authorised before the entry into force of the 'Llei del Sòl' by the parliament 'Consell General' as the highest authority, did not attract the attention of any of the deputies. The obvious violation of the Andorran Constitution is considered acceptable. Law is law.
Legal proceedings brought to ask for judicial review and constitutional complaints can not be litigated in Andorra by the affected citizens themselves. In the case of laws already adopted by Parliament, a complaint for review of a law on conformity with the Constitution is inadmissible [11].
Whoever has the money can pay a "ransom"
Owners, who do not want to cede 5 to 15 % of their land, can, after payment of an appropriate sum of money to the municipality, get around the expropriation [12]. By this it is demonstrated that there is little true public interest. But that does not seem to trouble the public authorities, the main thing is that the money flows.
According to the Constitution, an expropriation is performed only in specific substantiated exceptional cases, and the logical consequence is that a flat-rate general expropriation serves no purpose whatsoever for the public good.
The obvious violation of basic constitutional principles
The base of every state under the rule of law is to be always in compliance with the principle of hierarchy of norms and the principle of non-retroactivity of provisions, as in Andorra (Article 3.2 of the Constitution). Previously granted and approved building zones must therefore not be declared generally invalid (grandfathering, provision made to safeguard existing standards).
The enforcement to assign, for free, legally acquired private property, is a cold expropriation and is in sharp conflict with the property guarantee of the Constitution (Article 27.2), namely, that no one may be expropriated without the granting of fair compensation.
Further, equality before the law (Article 6) is in danger, because each municipality will decide at its discretion on the extent of expropriation, the scope of the compulsorily acquiring public works and which owners fall under the law or not. This opens door to arbitrariness and despotism.
Freedom of association (Article 17) is a right and not an obligation, and is thus in contradiction to all forms of forced association.
The main violated articles [13] of the Andorran Constitution and the Human Rights by the 'Llei del Sòl' are the articles 7, 17, 20.2 and 30 of the 'Universal Declaration of Human Rights (UDHR) [14]. The UDHR is valid in Andorra without any exceptions and is an integral part of the Andorran Constitution [15]..
Andorra is sacrificing significant fundamental rights to the economic interests of the construction industry. Until recently, property was an inviolable and sacred right that could not be withdrawn from anybody.
Fear of expropriation expands
Warnings that these actions will ruin the real estate market, apparently bother the politicians very little. After all, there will always be new uninformed investors, coming mostly from abroad and oblivious to the problem. Instead, the pressure is increased on the people who are forced to defend their rights and their homes. Andorra is on the way to a fundamental transformation of the country.
The unlucky ones will be forced to build on 3rd party building plots miles past farms and national sanctuaries. Municipality and government basically pay nothing. There it may be sometimes cheaper for an owner to deliver the key of his house to the government and leave the country. Andorra should go bright red with shame at such an unscrupulous law.
After Sant Julià and La Massana, Ordino is the third community which will shortly implement the 'Llei del Sòl'. Following examination of the real estate register of the municipality of Ordino [16], it has been observed that there are currently 21 streets, 4 squares, 2 promenades and 2 roads of private property. Adjacent owners and owners of these properties are therefore affected in varying degrees by the law. The other municipalities will follow.
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[1] 'Llei del Sòl' stands for a conglomerate Law that contains the following dispositions: 'Llei General d’Ordenació del Territori i Urbanisme' (LGOTU) dated 29/12/2000 and the later modifications (Butlletí Oficial d'Andorra - BOPA 13010 2001, modified on 21/06/2006 (BOPA 18056) and on 28/07/2011 (BOPA 23054)), the norms of the municipalities 'Pla d’Ordenació i Urbanisme Parroquial' (POUP) called, such as (BOPA 18063 not available electronically and not consultable online) and the 'Reglament Urbanístic' from 05/10/2011 (BOPA 23061).
[2] See, for example article 100 POUP Sant Julià - Deures “- Cedir gratuïtament al comú els vials i la part corresponent al percentatge de la superfície de la unitat d’actuació entre el 15% i el 5%, que el Pla d’ordenació i urbanisme parroquial determini destinat a equipaments col·lectius, habitatges de protecció pública i serveis públics.”
[3] Article 27.2 of the Constitution of Andorra stipulates that: “No one shall be deprived of his or her goods or rights, except upon justified consideration of the public interest, with just compensation by or pursuant to a law.“
[4] Article 18. POUP Sant Julià: “Els propietaris inclosos en Polígons d’Actuació delimitats per a completar la urbanització, estan obligats a efectuar allò que estableix el Reglament Urbanístic: a. Constituir una associació de promoció urbanística (si s’escau) b. Aprovar un Projecte de Reparcel·lació (econòmica, si s’escau) c. Assenyalament d’alineacions i rasants (si s’escau) d. Aprovar un Projecte d’Urbanització de les obres pendents (si s’escau)”
[5] Interview with head of government Antoni Martí: En aquest moments a Andorra no li convé una crisi institucional [CA], in: més!, 2015, dated 9th November, p. 3 "Tenen armes molt importants com els plans d'urbanisme per fer possible que les empreses es puguin instal.lar a les diferents parròquies andorranes."
[6] Report on the parliamentary elections 2015 in Andorra [DE]
http://www.andorra-intern.com/2015/wahlergebnis.htm
[7] Article 17 of the Andorran Constitution determines: “The right to associate for a lawful purpose shall be recognised.“
[8] Article 20.2 of the 'Universal Declaration of Human Rights' (UDHR): “No one may be compelled to belong to an association.“
http://www.un.org/en/universal-declaration-human-rights/
[9] 'Ciutadans d'Andorra molt preocupats - Carta oberta als Consellers Generals en relació amb la
vulneració de la constitució i dels drets humans a Andorra'[CA], dated 15/06/2014
http://www.andorra-intern.com/docs/20140428-Text-Carta-oberta-als-Consellers-Generals.pdf
[10] Andorran citizens are indignant at arbitrary laws - Open letter to the parliamentarians [DE]. Online in Internet: http://www.andorra-intern.com/2014/offenerbrief.htm
[11] Boldt, H.: Human rights, constitutional complaint and judicial review of laws in Andorra - Possibilities and limits of enforcement [DE]. Online in Internet: URL: http://www.andorra-intern.com/2014/menschenrechte.htm
[12] Article 33 LGOTU (General Act on Spatial Planning and Urbanistics): “Cessió obligatòria i gratuïta
4. En unitats d’actuació de sòl urbà consolidat els comuns poden acceptar com a cessió de sòl l’equivalent econòmic del valor del terreny objecte de cessió obligatòria.
5. Els comuns han d’aprovar i fer públic, com a mínim un cop cada any, el valor del terreny de cada unitat d’actuació, amb l’especificació de les regles d’aplicació per determinar l’equivalent econòmic del valor del terreny objecte de cessió obligatòria per cada unitat d’actuació.”
[13] Comparació: Articles de la Constitució d'Andorra i dels Drets humans vulnerats ./. 'Llei del Sòl'
http://www.andorra-intern.com/docs-pub/comparacio-constitucio-vs-llei-del-sol.pdf
[14] See Universal Declaration of Human Rights (UN-Resolution 217 A (III) of the United Nations dated 10/12/1948)
http://www.un.org/en/universal-declaration-human-rights/
[15] See Article 5 of the Andorran Constitution: “The Universal Declaration of Human Rights is binding in Andorra.“
http://www.andorra-intern.com/docs-pub/verfassung.htm#art5
[16] Cadastre d'Ordino
The data is provided publicly by the municipality Ordino at the Internet. The official land register of the municipality Ordino appears on the municipality website and can be viewed by everybody.
http://www.ordino.ad/comu/urbanisme-i-cadastre/cadastre/arxius/ordinacio-de-senyalitzacio-de-vies-i-edificis-691kb/view
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Quotation proposal
Boldt, H.: Wave of expropriations threatens many property owners, Online in Internet: URL: http://www.andorra-intern.com/2016/expropriations.htm [Status: *Call date*].
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References to pages with related contents in this site:
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News: 23.06.2014 Open letter to the parliamentarians [DE]
— Article: Human rights, constitutional complaint and judicial review of laws
— in Andorra [DE]
— Article: 20 years Andorran Constitution without progress [DE]
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Citizens movement website 'Ciutadans d'Andorra molt preocupats' - 'Sorely concerned citizens of Andorra'
Corruption Perceptions Index, CPI
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