PROPERTY
PROPERTY 1
Germany 2
89 BVerfGE 1 (1993) 2
India 6
GENERAL FEATURES OF THE STATUTES DEALING WITH LAND REFORMS IN INDIA 6
RIGHT TO PROPERTY AND THE LEGISLATIVE AND JUDICIAL ATTITUDE 7
Anantha Prbhu v.District Colector : AIR 1975 Ker 117 10
ZIMBABWE: 10
Hewlett v Minister of Finance & Another 1981 ZLR 571 S Crt: Repeal of Victims of Terrorism (Compensation) Act. Debts owed by the state, such as those arising from the actual awards of compensation, are ‘property’ within the meaning of Constitution. 10
CW v Commissioner of Taxes 1988 (2) ZLR 27 (HC): State could not erode compensation by taxing it. Reasonable justification in a democratic society. 10
Mhora v Minister of Home Affairs 1990 (2) ZLR 236 (HC): Deprivation of benefits, including accrued salary, pension and medical benefits, without compensation would be an acquisition of property 11
Chairman, Public Service Commission v Hall 1992 (2) ZLR 271 (S): The power to fine a public officer for misconduct was not in violation of the Constitution 12
Nyambirai v National Social Security Authority & Another 1996 (1) SA 636: Laws making provision for acquisition of property in satisfaction of tax or rate where that law is reasonably justifiable in a democratic society. Government , better placed than the judiciary to appreciate what was in the public interest. Three criteria used in test: legislative objective sufficiently important; self evident rational connection between the objective and the measures; means used impair rights no more than necessary. 12
NAMIBIA: 13
Right to own property 13
De Roeck v Campbell & Others 1990 NR 126: Laws of execution; rights of debtors and creditors; rights of peregrini and incolae. 13
UNITED KINGDOM 14
Expropriation: 14
Local Government Powers, 14
Property rights may be infringed: 14
Warrants usually required before enter and seizure: 14
EUROPEAN COMMUNITY 14
Papamichlopoulos v Greece EHRR 1993: 15
Wiesinger v Austria 16 EHRR 258 1991: 15
Scotts of Greenock Ltd and Lithgows Ltd v United Kingodom 12 EHRR 97: 15
Ciba SA and Others v Ufficicio Centrale Brevetti 1979 European Commercial Cases (ECC) 67 15
KATIKARIDIS AND OTHERS v. GREECE (72/1995/578/664) 15 November 1996: Impossibility of obtaining full compensation for expropriation of part of properties fronting a road because of irrebuttable presumption that the benefit derived from road improvements amounted to sufficient compensation. Expropriation pursued lawful end in the public interest 15
PRÖTSCH v. AUSTRIA (67/1995/573/659) 15 November 1996: Interference (provisional transfer of land) considered -- need for a proper balance between demands of community's general interest and requirements of protecting fundamental rights of individual - - temporary disadvantage may be justified in the general interest if not disproportionate to aim pursued. -- Aim of consolidation: improve infrastructure and pattern of agricultural holdings. 18
GUILLEMIN v. FRANCE (105/1995/611/699) 21 February 1997: length of proceedings to challenge expropriation and to secure compensation, 22
AKKUS v. TURKEY (60/1996/679/869) 9 July 1997: depreciation through inflation of additional compensation for expropriation caused by authorities' delay in payment -- "entitlement to the peaceful enjoyment of possessions" 23
THE NATIONAL & PROVINCIAL BUILDING SOCIETY, THE LEEDS PERMANENT BUILDING SOCIETY AND THE YORKSHIRE BUILDING SOCIETY v. THE UNITED KINGDOM (117/1996/736/933-935) 23 October1997: Applicants’ legal claims to restitution of monies paid under invalidated tax provisions extinguished under the effects of retrospective legislation -- Whether there was an unlawful expropriation of applicants’ assets – Meaning of ‘possessions’ --interference -- whether interference was justified. 24
LAND POLICY IN CANADA 26
Torgeson, 'Indians Against Immigrants', 14 Am. Indian L.Rev. 52, *62. 27
Opetchesaht Indian Band v. Canada [1997] 2 S.C.R. 119: Indians -- Reserves -- Permits to use Indian reserve lands -- Right-of-way -- Validity of permit granting public utility right-of-way for electric power transmission lines across Indian reserve -- Right-of-way granted for such period of time as required for purpose of transmission line -- Nature and duration of rights granted under permit -- Whether rights granted within scope of Indian Act -- Whether permit valid -- Indian Act, 28
St. Mary's Indian Band v. Cranbrook (City) [1997] 2 S.C.R. 657: Indians -- Reserves -- Definition of "reserve" amended to include "designated lands" released or surrendered "otherwise than absolutely" -- Reserve lands surrendered at market value for airport but with the proviso that land would revert to reserve if not used for public purposes -- Whether lands surrendered for airport "designated lands" -- Whether common law real property principles apply to surrender of Indian reserve lands 31
Delgamuukw v. British Columbia [1997] 3 S.C.R. 1010: Aboriginal rights -- Aboriginal land title -- Claim made for large tract -- Content of aboriginal title -- How aboriginal title protected by Constitution Act, 1982 -- What required to prove aboriginal title -- Whether claim to self-government made out -- Whether province could extinguish aboriginal rights -- Evidence -- Oral history and native law and tradition -- Weight to be given evidence 32
R. v. Nikal [1996] 1 S.C.R. 1013: Aboriginal rights -- Fishing rights -- Appellant charged with fishing without a licence -- Whether licensing scheme infringing appellant's aboriginal rights and therefore not applying to him 40
Germany
GBL Article 14.
1. Property and the right to inheritance are guaranteed. Their content and limits shall be determined by the laws.
2. Property imposes duties. Its use should also serve the public weal.
3. Expropriation shall be permitted only in the public weal. It may be effected only by or pursuant to a law which shall provide for the nature and extent of the compensation. Such compensation shall be determined by establishing an equitable balance between the public interest and the interests of those affected. In case of a dispute regarding the amount of compensation, recourse may be had to the ordinary courts.
The language requires editing:
89 BVerfGE 1 (1993)
[Facts:
Petitioner here and defendant below (hereinafter tenant) was living for rent in the house of plaintiff below (hereinafter landlord). The house consisted of two sides and each side consisted of two floors. Each floor on both sides formed an individual apartment, that is, the entire house contained four apartments. Each side of the house had an individual entrance. The landlord herself was living on the first floor of one side of the house, the tenant/petitioner here was living on the second floor of the same side. The son of the landlord was living on the first floor of the other half. (The decision does specify who was living on the second floor of the other half.)
The landlord terminated the lease of the tenant. Her justification for the termination was that she needed the apartment occupied by the tenant for herself, in particular, she wanted her son to move into the apartment now occupied by the tenant. She reasoned that the combination of her old age (born in 1912) and her weak health (she suffered from a disturbance of her sense of balance) was a sufficient justification for her desire to have her son live physically closer to her. She maintained that living in the same side of the house would make a huge difference because such an arrangement would permit her son to visit her without having to step outside. Tenant refused vacate the apartment. The landlord then went to court and succeeded in getting an eviction in the trial court. The district Court upheld the eviction.
The constitutional complaint leading to this decision challenged the decision of the trial court and the conformation of that decision in the district court. The tenant argued that the eviction ordered by the trial court was in violation of his basic rights as protected by the Basic Law. In particular, the tenant alleged violations of his basic rights as guaranteed by Articles 2.1., 3.1., 13., and 14. of the Basic Law.
Issue:
Is the court-ordered eviction of tenant in violation of tenant's basic rights?
Holding by the First Senate:
No, it is not.
Discussion:
First the court found the constitutional complaint permissible as far as it related to the district court's holding.]
C.
As far as the constitutional complaint addresses the holding of the district court, it is unjustified.
I.
Article 14. of the Basic Law is not violated.
1. The petitioner cannot appeal to Article 14.2. of the Basic Law. This regulation merely is a guideline for the legislator in determining the content and limitations of property (Eigentum)... (Article 14.2. second sentence of the Basic Law). It obligates the legislator in the ordering of landlord/tenant law to take adequately into consideration the concerns of tenants (*), however, it does not elevate [the protection of tenants] to a subjective basic right guarantee (*).
2. In the matter at hand, however, the petitioner alleges that he as a tenant is being violated in his property right under Article 14.1. first sentence of the Basic Law. The Federal Constitutional Court has until now left open the question whether the right to occupy (Besitzrecht) of the tenant in the rented apartment flowing from the lease is property (Eigentum) in the meaning of the guaranteed right (Freiheitsgewaerleistung). [This question] is to be answered positively.
a)...
Housing represents for everyone the center of the private existence. The individual depends on the usage of it for the satisfaction of elementary needs of life as well as for the securing of freedom and the development of his personality. The majority of the population, however, cannot refer to property for the satisfaction [housing needs] but is forced to rent housing. The right to occupy of the tenant in such circumstances serves functions [that are] typically being served by owned property (Sacheigentum). This importance of housing has been taken into account by the legislator in arranging [landlord/tenant law...]
The legal [position] of the tenant finds its expression, among other things, in the protective rights of the tenant against everyone else. He is authorized to use the rented housing (see Section 535 first sentence, Section 536 of the Civil Code). If this [usage] is being interfered with in an illegal manner, he can demand a removal of the disturbance and an injunction against further disturbances (see Section 861.1., Section 858.1. of the Civil Code). If his right to occupy is being taken away illegally, he can demand to regain such right (see Section 861.1. of the Civil Code). These rights are enforceable against everyone, that is also against the landlord... Illegal interference with the right to occupy impose upon the perpetrator a duty to pay damages according to Section 823.1. of the Civil Code... The right to occupy does not cease with the sale of the property by the landlord, but continues to exist with regard to the buyer (see Section 571 of the Civil Code)...
The tenant's right to occupy ceases with an effective cancellation of the lease by the landlord. From this, however, one cannot conclude that legal rules and court decisions with respect to the protection of tenants cannot favor the tenant pursuant the standard set by Article 14 of the Basic Law. However, Article 14 of the Basic Law only protects existing legal positions (*). The continuation of an existing right is within the meaning [of property in Article 14 of the Basic Law] and therefore is part of basic right protection...
b) [The court next discusses the obligation of the legislator to shape the landlord/tenant law in a way that balances property interests of both, landlord and tenant. It then reviews the existing landlord/tenant law with the purpose to find out whether the balancing is in compliance with basic right protection.] A one-sided preferential treatment or discrimination which would not be in compliance with constitutional concepts of property [with a social purpose] is not observable (*). The guarantee of property unfolds its function to secure freedom in both directions. The tenant who is in compliance with his lease is being protected against loosing his housing if [such a deprivation of housing] is not due to permissible justifications of the landlord. Housing, as the physical center of the free development of the personality and a free sphere of self-responsible activity, cannot be taken away by a cancellation of a lease without strong justifications (*). The landlord is being protected in his freedom in that he can regain the housing to use it as his own center of life (or have relatives use it). [The decision of the landlord as to what constitutes his living needs] has, as a matter of principle, to be respected and may not be substituted with other perceptions of adequate housing or [other perceptions] about the landlord's (or his relatives') plans of the future (*).
c) The responsible courts, in their application and interpretation [of landlord/tenant law], must respect the limits set by the guarantee of property and must follow the balancing of interests expressed in landlord/tenant law pursuant the constitutional basis in a way that respects both sides' guarantees of property and avoids unproportional limitations of property. The threshold past which the Federal Constitutional Court corrects a violation of constitutional law is only reached if the lower courts' reasoning show mistakes in interpretation that indicate a principally incorrect position with respect to the importance of the guarantee of property, in particular with respect to the scope of the protected sphere, and [if the lower courts' decisions] are of material importance in the concrete dispute.
Therefore, the protection of property of the tenant [is being violated] by judicial holdings that greatly underestimate the importance and scope of Article 14.1. first sentence of the Basic Law for the right to property. Also in this respect the protection of tenants' property rights does not structurally differ from the one of the landlord. As far as according to regular law the justifications [of a cancellation of a lease] have to be reviewed with respect to their seriousness and reasonableness, the tenant has the right that a court reviews [the tenant's] challenges of the [landlord's] justification in a manner which reflects the importance and scope of the tenant's interest [to remain in his housing], for example [the tenant has the right that a court reviews] whether the claim of the landlord that he needs the housing for his own use is actually being pursued by the landlord (*), whether the claim of the landlord with respect to his own housing needs is too large in scope, whether, accepting that the landlord's claim is not too large in scope, the housing needs of the landlord could be satisfied without depriving the tenant of housing, as for example would be the case when the landlord owns additional vacant housing that could satisfy his housing needs without significant cutbacks for the landlords (*). [Moreover, the tenant has the right that a court interprets certain mandates of welfare law with respect to Atough cases' in a way that is appropriate in the light of the scope and importance of the tenant's interest to remain in his housing.]