Det var nu ett bra tag sedan det publicerades något på denna webbplats. Anledningen är enkel; det har inte funnits någon direkt inspiration till att skriva något. Tillvaron har fyllts av andra åtagande så som jobb, familjeliv och bordshockey.
Men här kommer ändringen. I min senaste kurs på doktorsutbildningen, Communicating Science, hade vi i uppgift att skriva en populärvetenskaplig artikel inom vårt forskningsområdet. Därför kommer denna artikel här att publiceras, dock utan tillhörande bilder i artikeln. Artikeln är som synes på engelska, då de flesta doktorandutbildningarna är just på engelska. Inget grammatisk mästerverk, men ett inlägg i vart fall!
Property intrusion
A real risk in Sweden
Sweden has a long history of making it possible to compulsory take real property with the support of legislation. Researchers at LTH in Lund is, for the first time, analyzing this legal possibility from a law and economics perspective.
Is the system for compulsory takings economically efficient? The meaning of this is to evaluate if compulsory takings is leading to the best possible use of the real property that is taken, or if unnecessary intrusion is being made with the support of acts in the legislation.
In the Swedish legislation there is a total of 15 different acts that give the possibility to compulsory take someones real property. The 15 different acts have in common that they are meant to satisfy public purposes. The acts can give the power to compulsory take real property for e.g. roads, pipelines, nature reserve etc. Another thing the acts have in common is that they refer to the Expropriation Act for determine compensation for the intrusion. The rules for compensation according to the Expropriation Act has been change numerous of time through out the history and the most recent amendment to the Expropriation Act was in 2010. This relatively new amendment makes it interesting to study what it has led to.
Briefly the compensation for intrusion by public interest shall be paid with an amount corresponding to the calculated loss in market value the property suffer by the intrusion plus 25 %. If the whole real property is taken the compensation should be equal to the market value of the real property plus 25 \%. The additional 25 \% comes from the amendment made in 2010.
Motives
The motives for compulsory claims in the preparatoires work isn't clear. In the research so far it hasn't been found any real motivation for the existens of compulsory claims of real property. In one governmental inquiry some arguments is to be found:
The fact that society has introduced the possibility of expropriation of land for certain specific purposes can be seen as an expression of the perception that these purposes are so important that they take precedence over other uses.
The lack of motives can possibly be due to the fact that the history of compulsory access of land is old. The first know legislation originates from the beginning of the 18th century.
What's interesting in the Swedish legislation is that it's not only the Government who can do compulsory intrusions in real property and only pay the compensation as previously mentioned. As long as the cause is for public interests anyone can use legislative ''tools'' to get access to real property. Either as an right of use or the ownership is transfered to the taker. In e.g. England compulsory takings by legislation for electronic communication is possible. But, in contrast to Sweden, compensation for the assignment shall be issued and calculated based on what would be considered as a fair and reasonable compensation if the parties voluntarily concluded the agreement.
Use of compulsory legislation
The fact that anyone can use this compulsory legislation has lead to a debate if it's appropriate. In many cases companies with profit interests use the legislation and can earn quite a lot of money without paying more than what the law state. Mostly the debate has been about the legislation about utility easements which is formed by the Utility Easements Act through a cadastral procedure.
With the support by the Utility Easements Act a company can apply to get the right to build different kind of pipes, cables etc. on a real property. This right is formed by a cadastral procedure, regardless if the company and the owner to the real property can meet an agreement. The company often makes a lot of profit out of this right, without sharing the profit with the owner who have to give up a part of his, or her, real property. Some of the big organisations for private owners of real property e.g The Federation of Swedish Farmers (LRF), have in the last few years start questioning this rules. Fredrik Bonde, General Counsel at LRF, writes in Swedish Lawyer Magazine (SvJT) from 2011:
The need for the introduction of a system of profit sharing - i.e. a special compensation to the landowner whose property is used for profit-making activities - through compulsory purchase is in place.
Supreme Court decisions
In 2008 the Supreme Court decided in three cases about compensation due to rights for cell towers, in Vaggeryd Småland among other places, formed according to the Utility Easement Act. Before the formation of an utility easement the cell towers were placed at the real properties by agreement with the landowners. Since the term of agreement expired a new deal couldn't be meet why the company choose to use compulsory legislation. The amount of compensation the Supreme Court decided was considerably lower than what had been agreed on before. This verdicts was in some way the starting point of the debate about compensation by intrusion made with support of the Utility Easement Act.
Further work
By analyzing the system for compulsory takings and compensation the researchers at LTH aim to evaluate if the system is economically efficient and what the amendment to the Expropriation Act has lead to. Through the analysis the researchers hope to better understand how the system as a whole reacts to changes, giving the legislator tools to make the system more efficient.