Understanding Property Rights: City Property and Expropriation
City Property Rights and Limitations
City property is governed by Article 19, No. 23 of the Constitution. It encompasses the freedom to purchase all goods, whether tangible or intangible, movable or immovable. This right is constitutionally enshrined with some exceptions:
- Goods that, by nature, have become commonplace for everyone (e.g., air, sea).
- Goods that must remain the property of the entire nation and are so determined by law (e.g., national goods of public use, streets, squares).
Limitations to Property Rights
The Constitution states that a quorum law may place restrictions or limits on this right when required by the national interest.
Example: Antitrust law regulates companies that can undermine competition. (Another case: Argentina cannot buy land bordering other countries).
Defining City Property
To define this property, it’s necessary to consider two streams of thought. The first, from the eighteenth century, is inspired by liberal ideals and legally expressed in the definition of civil code, which means that the relationship between the owner and the property is absolute.
The other stream conceptualizes property rights as integrating a social function, as reflected in Article 19, No. 24 of the Constitution. From this perspective, property rights can be conceptualized as the freedom to preserve the domain of tangible or intangible assets and their essential attributes in full compliance with the restrictions and requirements that derive from the social function of the domain.
Social Function of Property Rights
The social function of property rights means that the right to property is subject to certain limitations and obligations arising from the common good, because the property must seek to achieve that common good.
The social function, in accordance with the Constitution, includes concrete demands derived from the national interest, national security, public utility, public health, and environmental heritage conservation.
Expropriation
Expropriation involves the deprivation of property rights of the object on which the right rests, or of any of the essential attributes of the domain, through an administrative act that disregards the will of the owner.
Requirements for Expropriation:
- Expropriation law
- National interest or public utility
- Payment of compensation
1) Expropriation Law:
This can be general or special. It is a general law if it states the rules or criteria for determining the set of assets to be expropriated. When using a general law, the administration is authorized to issue specific administrative acts of expropriation for each of the properties. It is a special law when it states the specific property to be expropriated.
2) National Interest:
The existence or not of national interest or public utility is uniquely qualified by the legislature. This means that no judge can assess whether there is clearly qualified public utility.
3) Payment of Compensation:
Compensation is regulated in the Constitution according to the following rules:
a) Amount:
Must be determined by mutual agreement of the affected private party and state subsidy by the judge. For these purposes, an executory property damage caused should be considered.
b) Manner of Payment:
Must be made in cash.
c) Timing of Payment:
Must be prior to the taking of the property.
Claims Against Expropriation
The victim can claim against the legality of the expropriation and against the validity of the expropriation.
- Claim against the legality of the expropriation means that either there is no expropriation law, the law has expired, or the law has been rendered unconstitutional.
- Claim against the correctness of the expropriation means that any of the requirements of expropriation have not been met (down payment, etc.).