The legal figure of expropriation has been formulated in the public sphere, with the purpose that the public administration in the exercise of its activity can acquire real estate following the provisions established in the legal system in its diferent categories of supremacy; concurrently, the property right has been established to guarantee its owner full control over his assets; however, the same norm has foreseen situations in which this right is limited, as is the case of real estate, for reasons of public utility or social interest; For the expropriation to be configured and to take place by the law, prior fair valuation, compensation and payment are required. The objective set for the investigation made it possible to determine if the expropriation process, carried out by the Decentralized Autonomous Government of the Ambato Municipality, violates the right to a fair price, following COOTAD and the Organic Law of the National Public Procurement System. With the data and information collected through the interviews and expropriation processes or files, it was possible to specify that the company considers that the fair price should be set using the real or commercial appraisal as binding criteria; in this order, the compensation to be received implies damage, since it is not equitable or proportional to the damage experienced; Thus, verifying the proposed hypothesis, in the expropriation processes to establish the fair price, only the value of the cadastral appraisal of the year before the announcement of the project is considered, and; not the value of the commercial appraisal of the afected property.
The present research work intends to carry out an analysis of the legal-doctrinal nature of the figures of expropriation and the process that it entails, and; of the right price; when an immovable property belonging to an individual has been declared of public utility, for the execution of works for the benefit of the community; taking as a starting point the guidelines established in the Constitution of the Republic, the Organic Code of Territorial Ordering, Autonomy and Decentralization (COOTAD), the Organic Law of the National Public Procurement System, and; criteria of law scholars, interviews with oficials of the Ambato Municipality Decentralized Autonomous Government, and analysis of expropriation files carried out in the 2018 period.
By the foregoing, it is necessary to make a relation to the declaration of public utility of the immovable property, which is preceded by an administrative act executed by the sectional public administration, which causes uncertainty in the citizen, who is empowered by the same law in use of the right to defense, proposes the appeal before the Contentious Administrative Court, opposition that in most cases does not produce any efect, since the judiciary is ratified in the decision adopted in the first instance by the decentralized autonomous government municipal.
In this order of ideas, the problem revolves around the establishment of a fair price to the afected good; In practice to determine the cost that a decentralized municipal government must pay as a result of the expropriation, only the cadastral appraisal is observed, a valuation that is set by the autonomous governments themselves, without considering the commercial appraisal that, in the community, constitutes the estimate that from the public and private perspective is accepted in the tradition, that is, in the generality of acts of purchase and sale of real estate.
The research was of a non-experimental type since the object of study was analyzed in the place
where the events occurred, without deliberate manipulation of variables that could influence the results
achieved [
The qualitative approach was used in the investigation since it was directed to deepen what
expropriation consists of and its procedure to the fair price; without the fact that in the collection of information,
there are numerical measurements, which implied an approximation to the reality of the object of study
as it is presented in reality [
The investigation was characterized, in addition, for being of a typology of legal dogmatics, since a
study was carried out concerning legal institutions such as expropriation, its procedure, and the fair
price, from the perspective of the legal system and the legal norm to the doctrine [
The study focused its attention on the study of the universe, which is generally called population,
within the scope of the research this includes the study of a large group of individuals, objects, and even
documents, with common characteristics, for which the conclusions that are formulated [
The sample constitutes a representative subset of the population, made up of its elements or cases;
the results found in it are characterized by the validity that it configures for the population [
The proposed research, being of a legal nature with a qualitative approach, in terms of the methods used, these were inherent to this type of study, thus being established within the methodology of scientific research.
The Inductive Method, Deductive Method, Analytical-Synthetic Method, and Systems Approach were used.
Once both the type of investigation and the hypothesis are selected, as well as the population and the
sample, within the investigation the next stage constituted the collection of information, for which
it was necessary to determine a plan of procedures (techniques and instruments) leading to gather
information about the object of study, about the expropriation and the fair price [
The techniques used in the investigation were the following: Documentary analysis, and interview,
the instruments used in the investigation were the following: Content sheet, Interview guide.
2.4. Information processing and statistical analysis
The information processing took place by carrying out successive activities, such as the establishment
of categories, coding, tabulation of the results achieved and their statistical analysis; for which, it was
necessary to select the appropriate statistical procedures [
The activity of the public administration, especially of the municipal GADs, is circumscribed to the fulfillment of their powers, which are expressly assigned in the constitutional text and concurrently in the infra-constitutional norm; Among these attributions or powers is established the figure of expropriation, as a suficient legal instrument to limit the property right, and; that a real estate property, once declared public utility, mediating a prior and fair valuation, compensation and payment, fulfills its social purpose, that is, the general interest predominates over the individual, whose beneficiaries are the members of the company.
In the expropriation processes carried out by the Decentralized Autonomous Government Municipality of Ambato in 2018, the period included for the development of the investigation, it is possible to notice that those were carried out more frequently in the urban sector, registering one hundred and twenty-two (61 %); in the rural sector with less frequency, seventy-eight (39%) were counted, data from which it is evident, a considerable percentage of expropriations in the urban center in response to the needs, requirements or demands of society, through the execution of works in diferent sectors, improvement of public administration infrastructure to optimize the provision of services to the administered; administrative management carried out in strict observance of the precepts provided for in the Constitution of the Republic, the Organic Code of Territorial Planning, Autonomy and Decentralization and the Organic Law of the National Public Procurement System.
For the analysis of the expropriation processes contained in the administrative files that rest in the dependencies of the GAD Municipality of Ambato, the guidelines established in the Organic Law of the National Public Procurement System, Chapter V Special Procedures, Section III of the Acquisition of real estate (expropriation).
Description of the procedure. The expropriation process carried out by the GAD Municipality of Ambato, complying with the exclusive powers established in the Constitution of the Republic and accordingly in the COOTAD, refers to planning cantonal development and formulating the corresponding land use plans, to regulate the use and occupation of the land, whether urban or rural; In the case analyzed, it refers to the Paved Asphalt project and complementary works in several rural parishes
Oficial Finance
Department 4. Amount to planning, building, and maintaining the physical infrastructure, as well as public spaces for social, cultural, and sports development; in the specific case Opening of roads, asphalt and complementary works sectors (Celiano Monge parish).
Description of the procedure in table 3. The expropriation process carried out by the GAD Municipality of Ambato, in compliance with its exclusive powers established in the Constitution of the Republic and by COOTAD, regarding the preservation, maintenance, and dissemination of the architectural, cultural and natural heritage of the canton; in the specific case referred to the Rehabilitation and expansion of the museum house in honor of Juan Benigno Vela and relocation of the municipal property registry.
Description of the procedure in table 4. The expropriation process carried out by the GAD Municipality of Ambato, which makes its exclusive powers established in the Constitution of the Republic and COOTAD, with respect to planning, building, and maintaining the physical infrastructure and equipment of public spaces for social, and cultural development and sporty; in the case that relates to the opening of roads, asphalting and complementary works local roads various sectors.
The cadastral appraisal in relation to the commercial one constitutes a complex subject given the diferent points of view or meanings related to those, commonly the first one constitutes the determination that By which the calculation of the appraisal for expropriation is reported Area afected to pay: ( 2 ) 73.81 Value (/2): 24.36 Appraisal (USD): 1,798.01 By which the economic and budgetary availability is reported Item No. 84.03.01.001 Whereby the expropriated states: Agreement with the value determined for compensation There is no opposition to the occupation Continue with the corresponding procedure By which the domain of the afected propFor the determined value, for compensa- ECR article 323 tion for 1,798.01 (USD) COOTAD article 446
LOSNCP article 58 COOTAD articles 58.1 inc. 2 LOOTUGS item 66 LOSNCP article 58 inc. 2
LOSNCP article 58 paragraph 8
Oficial Appraisals and Cadastres Department DCA-VC-18-227 (May 08, 2018) Oficial Finance
Department 3.4. Percentage of processes that benefit from the 10% increase In the expropriation of real estate, the legal norm provides for the negotiation and price stage, in which both the expropriating entity and the administrator commonly named expropriated seek an event, in terms of the value that will be canceled as a prior valuation, compensation and fair price, within the established period; empowering the parties to operate within this negotiation a maximum increase of ten percent over the constant appraisal in the municipal cadastre, referenced to the property tax.
According to the data related to the expropriation processes carried out by the GAD Municipality of Ambato during the 2018 period, in total, these amounted to 200 (100%), of which only 4 (2%) accepted the increase in the negotiation stage. of 10% on the cadastral appraisal specified by the public entity as fair, in the terms established in article 58.1 second paragraph of the Organic Law of the National Public Procurement System.
Oficial Appraisals and Cadastres Department Trade Treasury Amount Challenge Judgment For which the project "Rehabilitation and expansion of the House Museum in honor No. DA-18-0-15(July 13, 2018) of Juan Benigno Vela and relocation of the municipal property registry)" is announced.
By which it is resolved to declare the propNo. DA-EXP-18-196 (December 28, erty and construction of public utility and 2018) social interest, without considering the value of concrete construction
Whereby it is resolved to immediately and No. AA-EXP-19-001 (February 14,
urgently occupy the entire property and 2018) construction afected
By which the protocolization and registraNo. DA-PlyLPE-22-44 (June 13, tion in the Property Registry of adminis2022) trative resolution No. DA-EXP-18-196 is provided By which the calculation of the appraisal for expropriation is reported
Total afectation (USD): 347,203.06 DCA-VC-18-2138 (December 04, 2018)Land appraisal (USD): 224,857.75
Construction appraisal (USD): 98,253.34 Property home appraisal (USD): 24,091.95
CRE article 264 number 8 COOTAD article 55 literal h) LOSNCP article 58
Whereby compliance with judgment No. 18803-2019-00148 is reported, through accredited transfer in favor of the expropri- LOSNCP article 58, inc. 2 ated CUR. 001590 and 001607 For the value determined, for compensation by the Contentious Administrative ECR article 323 and Tax Court within the process No. COOTAD article 446 18803-2019-00148, for 475,963.27 (USD) LOSNCP article 58 Process signed with No. 18803-2019-00148 Tax Administrative Dispute Court (November 09, 2021) Error sum of amounts ordered to pay (Oficial No. DF-SC-22-063, February 18, 2022) Expropriation 20221801002P02293 ber 23, 2022) notarization (Septem
Whereby the expropriated state: Have been notified with the administrative resolution No. DA-EXP-18-196 Not agreeing with the price of the property They will make the respective claim for the fair price Actor: Owners of the afected property Defendant GAD Municipality of Ambato Subject: challenge of the fair price Tribunal: Administrative Tax Litigation Partial acceptance of the claim for the amount of the claim, setting as a fair price: Land (USD): 333.696.74 Heritage Construction (USD): 67,754.68 (-) Declarative gain of public utility (USD): 43,262.62 (=) Subtotal (USD): 358,188.80 (+) Concrete construction (USD): 117,774.47 Total fair price (USD): 457,963.27 The request of the public entity that, in an act of procedural loyalty, notes the error incurred, is attended to. Total fair price (USD): 475,963.27 By which the domain of the afected property is transferred to the Decentralized Autonomous Government of the Municipality of Ambato
LOSNCP articles 58 inc. 3 and 58.2 LOSNCP article 58.2 CRE article 173 Inter-American Court of Human Rights judgment of May 6, 2008 (Case of Salvador Chiriboga vs.
Ecuador) European Court of Human Rights American Convention article 21 first paragraph – 21.1 InterAmerican Convention on Human Rights article 21.2 COGEP articles 300 - 313 COGEP article 100 LOSNCP article 58, paragraph 8
Oficial Appraisals and Cadastres Department
DCA-VC-18-258 (May 14, 2018)
Regarding expropriation from the technical-professional approach, this constitutes the legal capacity that emanates from the constitutionally established powers in favor of public administration bodies, with the purpose, in the specific case of acquiring ownership of a property domain. individual or private property, to execute public works of social benefit, mediating due process and payment of the 10% increase in negotiation stage
Source: GAD Ambato database
200 &
No. increase
processes
100%
4
&
2%
corresponding compensation or fair price. Within the internal legal system, expropriation is considered
a fairly old institution, which has always been incorporated into the diferent Ecuadorian constitutions
[
Regarding expropriation as a frequent resource for the property to fulfill its social purpose, it is used
for this purpose, because the legal provision so provides, its purpose is to occupy real estate, which has
been declared of public utility due to the existence of a project for a collective purpose. Expropriation
particularly denotes distinction concerning other legal figures such as confiscation, because it is provided
for in the Constitution of the Republic and other laws of an organic nature, which allows its efective
application, and prior compliance with the established legal formalities. Duly applied, expropriation
allows the State or public administration, in strict observance of its functions, to acquire private goods,
under the premise of general interest and common development [
Regarding the proportionality of the compensation that the expropriated party receives concerning
the damage caused, this in most cases is not equitable in correlation to the real or commercial value of
the property, that is, the value paid does not represent a greater percentage of the real cost of the land or
of the investments made; however, according to the technical and legal parameters, the compensation
received by the expropriated is proportional and breaks the figure of confiscation. According to the
opinion of the Constitutional Court of Ecuador (Sentence 1762-14 EP/20)1, on the establishment of the
value of the fair price, it exposes; applying healthy criticism in expropriation processes, they must be
kept in mind; to. Land value, quality of the same, existing exterior works, irrigation infrastructure,
water disposal, canals, roads, trees, equipment, activities related to agriculture that express the eforts
of their owners, b . buildings and plantations; of which, to determine equitable compensation, it is
necessary to consider the reality of the property, that is, the improvements made, including the capital
gains, thus guaranteeing the public administration, on the one hand, the payment of the fair price
in compensation for the damage caused, by another, the fulfillment of the rights of the expropriated
related to the right to property and the payment of a fair price [
Regarding compliance by the GADs with fair and prior compensation in the expropriation, this
condition is not met concerning the times, moment, and form, in addition to the fact that for its
establishment only the cadastral cost, valuation that is below the market value of the property; hence,
the percentage of distinction between one and the other is considerably high, to the detriment of the
expropriated and the detriment of their property right; however, it must be satisfied in one way or
another to the extent that the norm establishes. Under these criteria, the Inter-American Court of
Human Rights in the cases Salvador Chiriboga vs. Ecuador, 2008, 2011, and Xákmok Kásek indigenous
community vs. Paraguay, 2010, points out; 1. The value that must be recognized for the expropriated
property is the market or commercial value, in force on the date of the declaration of public utility
or social interest, value that must be considered as a fair balance between the general and individual
1Constitutional Court of Ecuador: http://esacc.corteconstitucional.gob.ec/storage/api/v1/10_DWL_FL/
e2NhcnBldGE6J3RyYW1pdGUnLCB1dWlkOic4NDIzZTQxMi0yNTI1LTQyZWYtOTE1Ny0xMWIxNmNlZDdkNDEucGRmJ30=
interest; 2. In cases of delay in the payment of the corresponding compensation, it is necessary to
recognize a simple commercial interest concerning the amount established as compensation, counted
from the time the expropriation occurs until the total payment of the agreed amount, which is is linked
to the failure to pay fair compensation [
Regarding the legal and technical criteria that are taken into account for the appraisal and the
determination of the fair price, these constitute acts of simple administration or inputs to conform to the
will of the public administration and establish the appraisal and fair price, in addition, elements of proof
in judicial instance for the decision of the judging authority; These criteria must be updated periodically
or regularly under legal reforms and the territorial reality of each sector. In the Ecuadorian context, the
valuation of the fair price has changed radically, since it has given way to a methodology without further
technical details, preventing the updating of the cadastral valuation before the declaration of public
utility, the analysis of experts in charge of determining technically the appraisal of the property subject
to expropriation [
Regarding the percentage of expropriation processes that, in the negotiation stage, benefit from the
10% increase established by law, according to the data collected in the investigation period, these denote
being significantly lower, concerning those in which the parties jointly reached an agreement without
that increase, proceeding to the subscription of the corresponding title transfer deeds in favor of the
GAD Municipality of Ambato. In this order, under current regulations, in the case of not reaching
a consensus, it is only allowed to deliver a maximum value of 10% complementary to the cadastral
appraisal, which is updated by the municipal GAD every two years, but which, for the most part, does
not respond to the real price of the property, from this, the consideration that the fair price is efectively
an imposition of the public administration [
Within the expropriation processes carried out by the Ambato Municipality Decentralized Autonomous Government, the public administration would be violating the right to a fair price, because, although the norm establishes the legal and technical parameters for its establishment, the approach that the administered It has is that the "fair price" must be set using the real or commercial appraisal as binding criteria.
The violation of the right to a fair price is based on two circumstances: the first relates to the payment to the administrator of said value at the times, moment and manner determined in the regulation; the second refers to the lack of consideration of works or investments made in the property to be expropriated, which warns that the compensation, therefore the fair price, is not equitable or proportional to the damage experienced by the taxpayer, as is shown by both interviewed as administrative files object of analysis.
The expropriation processes carried out by the Decentralized Autonomous Government of the Ambato Municipality in 2018 accounted for a total of two hundred, constituting the object of analysis, and have been challenged in administrative litigation, this is equivalent to one percent of those harmed by the process of expropriation. expropriation who express their disagreement with the compensation and fair price to receive as compensation for the damage they revive for the benefit of the public interest; based on the lack of agreement provided for in article 58.2 of the Organic Law of the National Public Procurement System.
The constant real amount in the title transfer deeds does not influence the establishment and payment of the fair price, since the municipal public administration, to execute an expropriation process only takes into account the appraisal set by the appraisal department. and cadastres of the active subject or expropriating entity, specifying as a basis the provisions or precepts provided and introduced in the norm that regulates the matter, that is, the Constitution of the Republic, the Organic Code of Territorial Planning, Autonomy, and Decentralization, the Organic Law of the National Procurement System public.
From the administrative processes or files of expropriation under analysis, it is possible to notice two contexts that are related to the constant dissipations in the Organic Law of the National Public Procurement System, determined in articles 58.1 "negotiation and price" and 58.2 "lack of sane"; circumstances that by administrative or judicial means give rise to the perfection of the transfer of ownership in favor of the public administration for the execution of the announced project, before compliance with the terms established in article 58 of the aforementioned organic law.