=Paper=
{{Paper
|id=Vol-3795/icaiw_aiesd_8
|storemode=property
|title=The Processes of Real Estate Expropriation and the Fair Price: Case of the Decentralized Autonomous Government of the Municipality of Ambato
|pdfUrl=https://ceur-ws.org/Vol-3795/icaiw_aiesd_8.pdf
|volume=Vol-3795
|authors=Fanny Perez,Marcelo Leon,Vladimir Salazar-Gonzalez,Andrea Macias
|dblpUrl=https://dblp.org/rec/conf/icai2/PerezLSM24
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==The Processes of Real Estate Expropriation and the Fair Price: Case of the Decentralized Autonomous Government of the Municipality of Ambato==
https://ceur-ws.org/Vol-3795/icaiw_aiesd_8.pdf
The Processes of Real Estate Expropriation and the Fair
Price: Case of the Decentralized Autonomous Government
of the Municipality of Ambato
Fanny Perez1 , Marcelo Leon2,* , Vladimir Salazar-Gonzalez3 and Andrea Macias4
1
Universidad Tecnica de Ambato, Ambato, Ecuador
2
Universidad Ecotec, Samborondon, Ecuador
3
Universidad Andina Simon Bolivar, Quito, Ecuador
4
Universidad de Especialidades Espiritu Santo, Samborondon, Ecuador
Abstract
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 different 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 affected property.
Keywords
Public Administration, Cadastral Appraisal, Commercial Appraisal, Expropriation, Compensation, Public Utility
1. Introduction
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 officials 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
ICAIW 2024: Workshops at the 7th International Conference on Applied Informatics 2024, October 24–26, 2024, Viña del Mar, Chile
*
Corresponding author.
$ fperez1362@uta.edu.ec (F. Perez); marceloleon11@hotmail.com (M. Leon); vrsalazarg@hotmail.com (V. Salazar-Gonzalez);
acmaciash@gmail.com (A. Macias)
0009-0005-1461-8607 (F. Perez); 0000-0001-6303-6615 (M. Leon); 0009-0002-3662-0933 (V. Salazar-Gonzalez);
0009-0003-0759-5406 (A. Macias)
© 2024 Copyright for this paper by its authors. Use permitted under Creative Commons License Attribution 4.0 International (CC BY 4.0).
CEUR
ceur-ws.org
Workshop ISSN 1613-0073
Proceedings
127
Fanny Perez et al. CEUR Workshop Proceedings 127–137
cases does not produce any effect, 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 affected
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.
2. Methodology
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 [1].
The qualitative approach was used in the investigation since it was directed to deepen what expropri-
ation 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 [2].
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 [3].
2.1. Population or sample
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 [4, 5, 6], after
completing the previous phases in the course of the investigation, in the case that concerns constituted
by an official of the GAD municipality of Ambato from the legal and planning department, and; of
expropriation processes.
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 [7]. In the
case in question, the sample consisted of four interviews conducted with officials of the decentralized
autonomous government of the municipality of Ambato, of the planning, legal, appraisal, and cadastres
departments, and; four expropriation processes of the year 2018. For this selection the so-called causal
sampling was used, also called accidental sample, by which individuals or cases are selected according
to the possibility that the researcher has to access them [8, 9].
2.2. Methods used in the investigation
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.
2.3. Information collection
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 [1].
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Fanny Perez et al. CEUR Workshop Proceedings 127–137
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 [10], in the specific case the Excel software
was used, a program used for the analysis of information in social science research.
3. Results
3.1. Expropriation processes year 2018
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 sufficient 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.
Table 1
Media competencies in the understanding and expression of people
Sector No. %
Expropriation processes Urban 122 61
Rural 78 39
TOTAL 200 100%
Source: 2018 GAD Ambato database.
In the expropriation processes carried out by the Decentralized Autonomous Government Munici-
pality 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 different sectors,
improvement of public administration infrastructure to optimize the provision of services to the admin-
istered; 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.
3.2. Analysis of expropriation processes
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 ac-
cordingly 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
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Fanny Perez et al. CEUR Workshop Proceedings 127–137
analyzed, it refers to the Paved Asphalt project and complementary works in several rural parishes
2019.
Table 2
Process No.1
N° Analysis items Analytical description Legal effects Binding regulations
For which the project "Cobblestone asphalt
CRE article 264 number 1
DA-AP-20-003(August 20, 2020) and complementary works several rural
Administrative COOTAD article 55 literal a)
1. parishes 2019" is announced
resolution LOSNCP article 58
By which it is resolved to declare a part of
No. DA-EXP-21-003 (February 26,
the affected property of public utility and ECR article 323
2021)
social interest COA article 98
By which the protocolization and registra- COOTAD articles 446 – 447
No. DA-PLyLPE-21-017 (May 26, tion in the Property Registry of adminis- LOSNCP article 58
2021) trative resolution No. DA-EXP-21-003 is
provided
By which the calculation of the appraisal
for expropriation is reported
Official Appraisals and COOTAD articles 58.1 inc. 2
2. DCA-VC-2020 (October 29, 2020) Area affected to pay: (𝑚2 ) 73.81
Cadastres Department LOOTUGS item 66
Value (𝑐/𝑚2 ): 24.36
Appraisal (USD): 1,798.01
By which the economic and budgetary
Official Finance
3. DF-21-031 ( January 21, 2021) availability is reported LOSNCP article 58 inc. 2
Department
Item No. 84.03.01.001
Constant in the minutes of public
For the determined value, for compensa- ECR article 323
4. Amount deed of the union attorney of the
tion for 1,798.01 (USD) COOTAD article 446
GAD Municipality of Ambato
LOSNCP article 58
Whereby the expropriated states:
Written expropriated Agreement with the value determined for
5. Request 0606549 (March 26, 2021) LOSNCP article 58 paragraph 8
procedure compensation
There is no opposition to the occupation
Continue with the corresponding proce-
dure
By which the domain of the affected prop-
Expropriation notarization
erty is transferred to the Decentralized Au-
6. Notarization 20211801001P00925 (July 07, LOSNCP article 58 paragraph 8
tonomous Government of the Municipality
2021)
of Ambato
Observations: In the process, the expropriated party does not show any opposition with the value of the appraisal and compensation canceled
as a fair price for the affectation of the property they own, on the contrary, using a letter sent to the public entity, it requests that the
7.
process of expropriation, which concludes with the protocolization of documents thus obtaining the corresponding public deed, perfecting the
tradition.
Source: FW expropriation file. 27792 GADMA (2021) [11, 12, 13, 14, 15]
Description of the procedure in table 2. The expropriation process carried out by the GAD Municipality
of Ambato, by the exclusive powers assigned in the Constitution of the Republic and COOTAD, related
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.
3.3. Cadastral and commercial appraisal
The cadastral appraisal in relation to the commercial one constitutes a complex subject given the different
points of view or meanings related to those, commonly the first one constitutes the determination that
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Fanny Perez et al. CEUR Workshop Proceedings 127–137
Table 3
Process No.2
N° Analysis items Analytical description Legal effects Binding regulations
By which the project "Opening of roads, asphalt,
No. DA-AP-18-0040 (March 12, CRE article 264 number 7
and complementary works sectors" is announced
Administrative 2018) COOTAD article 55 literal g)
1. (Celiano Monge parish)
resolution LOSNCP article 58
By which it is resolved to declare a part of the
No. DA-EXP-18-0116 (July 20, 2018) property and enclosure of the affected property ECR article 323
of public utility and social interest COA article 98
By which the protocolization and registration in COOTAD articles 446 – 447
No. DA-PlyLPE-18-106 (October 04,
the Property Registry of administrative resolution LOSNCP article 58
2018)
No. DA-EXP-18-0116 is provided
By which the calculation of the appraisal for ex-
propriation is reported
Official Appraisals and COOTAD article 58.1, inc. 2
2. DCA-VC-18-227 (May 08, 2018) Area affected to pay: (𝑚2 ) 10.97
Cadastres Department LOOTUGS item 66
Value (𝑐/𝑚2 ): 287,976
Appraisal (USD): 1,390.12
By which the economic and budgetary availability
Official Finance
3. DF-18-338 (June 26, 2018) is reported LOSNCP article 58, inc. 2
Department
Item No. 84.03.01.001
Constant in the minutes of public
For the determined value, for compensation for ECR article 323
4. Amount deed of the union attorney of the
1,390.12 (USD) COOTAD article 446
GAD Municipality of Ambato
LOSNCP article 58
Whereby the expropriated states:
Written expropriated Agreement with the value determined for com-
5. Application No. 0443153 LOSNCP article 58, paragraph 8
procedure pensation
Continue with the corresponding procedure
Indicate institution and account for the transfer
Expropriation notarization By which the domain of the affected property
6. Notarization 20181801005P05202 (Novem- is transferred to the Decentralized Autonomous LOSNCP article 58, paragraph 8
ber 14, 2018) Government of the Municipality of Ambato
Observations: In the procedure, the expropriated person states that he agrees with the procedure and the value of the appraisal and compensation
7. to be paid as a fair price, in addition to this, the entity where the transfer of the value product of the expropriation will be made to be canceled by the
expropriating entity perfecting that, with the protocolization of documents thus obtaining the corresponding public deed, operating the tradition.
Source: FW expropriation file 18431 GADMA (2018) [11, 12, 13, 14, 15]
allows the GADs to specify the value to be collected for property taxes, taken into consideration the
location of the real estate, its area, existing construction class, improvements; meanwhile, the second is
understood as a valuation adjusted to the reality of the real estate in the market, referring to the sale or
purchase of the property in question; establishing itself in this order, the distinction between the one
and the other both in the urban and rural area.
According to the constant data in the Ambato GAD databases, it is possible to establish a distinction
between the cadastral appraisal used by the municipality and the commercial appraisal used by common
people; expressed in considerably high percentages 242%, 215%, and; moderate 8%, 14%; which allows
us to observe and affirm that from the perspective of the citizen commonly administered and in certain
cases expropriated, the value that by the concept of expropriation formulated as compensation and
fair price, in the first place does not obey reality and consequently is not related to the damage that he
receives with the deprivation of a part or all of his property, the consequence of that the exercise of the
corresponding actions in the administrative field or the judicial channel.
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.
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Fanny Perez et al. CEUR Workshop Proceedings 127–137
Table 4
Process No.3
N° Analysis items Analytical description Legal effects Binding regulations
For which the project "Rehabilitation and
expansion of the House Museum in honor
CRE article 264 number 8
No. DA-18-0-15(July 13, 2018) of Juan Benigno Vela and relocation of
COOTAD article 55 literal h)
Administrative the municipal property registry)" is an-
1. LOSNCP article 58
resolution nounced.
By which it is resolved to declare the prop-
No. DA-EXP-18-196 (December 28, erty and construction of public utility and
ECR article 323
2018) social interest, without considering the
COA article 98
value of concrete construction
COOTAD articles 446 – 447
Whereby it is resolved to immediately and
No. AA-EXP-19-001 (February 14, LOSNCP articles 58 – 58.1
urgently occupy the entire property and
2018)
construction affected
By which the protocolization and registra-
No. DA-PlyLPE-22-44 (June 13, tion in the Property Registry of adminis-
2022) trative resolution No. DA-EXP-18-196 is
provided
By which the calculation of the appraisal
for expropriation is reported
Official Appraisals and Total affectation (USD): 347,203.06 COOTAD article 58.1, inc. 2
2. DCA-VC-18-2138 (December 04, 2018)
Cadastres Department Land appraisal (USD): 224,857.75 LOOTUGS item 66
Construction appraisal (USD):
98,253.34
Property home appraisal (USD):
24,091.95
Whereby compliance with judgment No.
18803-2019-00148 is reported, through ac-
Trade Treasury
3. DF-T-2022-0711 (April 19, 2022) credited transfer in favor of the expropri- LOSNCP article 58, inc. 2
ated
CUR. 001590 and 001607
For the value determined, for compensa-
Constant in the minutes of public
tion by the Contentious Administrative ECR article 323
4. Amount deed of the union attorney of the
and Tax Court within the process No. COOTAD article 446
GAD Municipality of Ambato
18803-2019-00148, for 475,963.27 (USD) LOSNCP article 58
Whereby the expropriated state:
Written expropriated Application No. 0465238 Have been notified with the administrative
5. LOSNCP articles 58 inc. 3 and 58.2
procedure (January 25, 2019) resolution No. DA-EXP-18-196
Not agreeing with the price of the property
They will make the respective claim for the
fair price
Challenge Actor: Owners of the affected property
Process signed with Defendant GAD Municipality of Ambato
6. LOSNCP article 58.2
No. 18803-2019-00148 Subject: challenge of the fair price
Tribunal: Administrative Tax Litigation
Partial acceptance of the claim for the
Judgment CRE article 173
amount of the claim, setting as a fair price:
Inter-American Court of Human
Land (USD): 333.696.74
Rights judgment of May 6, 2008
Tax Administrative Dispute Heritage Construction (USD): 67,754.68
(Case of Salvador Chiriboga vs.
7. Court (November 09, 2021) (-) Declarative gain of public utility
Ecuador) European Court of Human
(USD): 43,262.62
Rights American Convention article
(=) Subtotal (USD): 358,188.80
21 first paragraph – 21.1 Inter-
(+) Concrete construction (USD):
American Convention on Human
117,774.47
Rights article 21.2
Total fair price (USD): 457,963.27
COGEP articles 300 - 313
The request of the public entity that, in an
Error sum of amounts ordered to
act of procedural loyalty, notes the error
pay (Official No. DF-SC-22-063, COGEP article 100
incurred, is attended to. Total fair price
February 18, 2022)
(USD): 475,963.27
By which the domain of the affected prop-
Expropriation notarization
erty is transferred to the Decentralized Au-
8. Notarization 20221801002P02293 (Septem- LOSNCP article 58, paragraph 8
tonomous Government of the Municipality
ber 23, 2022)
of Ambato
Observations: In the process, the expropriated, although they state that they have been notified with the administrative act (resolution) of
expropriation, do not show conformity with the value of the appraisal to be paid as compensation and a fair price, which is why, making use
9. of the right that assists them they sue the public entity before the Contentious Administrative and Tax Court, which in a judgment determines
the real value that for a fair price must be paid to the owners of the expropriated property, once the sentence has been fulfilled, it is formalized
to that this public deed constitutes a title in favor of the public institution, thus perfecting the tradition.
Source: FW expropriation file. 14921 GADMA (2018) [11, 12, 13, 14, 15]
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Fanny Perez et al. CEUR Workshop Proceedings 127–137
Table 5
Process No.4
N° Analysis items Analytical description Legal effects Binding regulations
By which the project "Opening of roads,
CRE article 264 number 7
No. DA-17-065 (December 14, 2017) asphalting and complementary works local
Administrative COOTAD article 55 literal g)
1. roads various sectors" is announced
resolution LOSNCP article 58
By which it is resolved to declare a part of
No. DA-EXP-18-085 (July 13, 2018) the property to be expropriated of public ECR article 323
utility and social interest COA article 98
By which the occupation of a part of the COOTAD articles 446 – 447
No. AA-EXP-18-009 (December 13,
property is resolved to execute the works LOSNCP articles 58 – 58.1
2018)
indicated in the project announcement
By which the calculation of the appraisal
for expropriation is reported
Official Appraisals and COOTAD article 58.1, inc. 2
2. DCA-VC-18-258 (May 14, 2018) Area affected to pay: (𝑚2 ) 334.73
Cadastres Department LOOTUGS item 66
Value (𝑐/𝑚2 ): 69.60
Total assessment of the affectation
(USD): 23,297.21
By which it is reported that there is eco-
Official Finance
3. DF-18-275 ( May 30, 2018) nomic and budgetary availability LOSNCP article 58, inc. 2
Department
Item No. 84.03.01.001
For which the expropriated request:
Written expropriated Application No. 0443220 A meeting between the parties due to not
4. LOSNCP articles 58 inc. 3 and 58.2
procedure (August 03, 2018) agreeing with the price of the expropriated
land
They express their disagreement and chal-
lenge the appraisal established in adminis-
trative resolution No. DA-EXP-18-085
They will make the respective claim for the
fair price
Of the meeting held between the parties,
to reach a possible agreement on the price
No. 1 (August 29, 2018)
Minutes of for expropriation ECR article 323
5.
reconsideration It is agreed that the Appraisal Department COOTAD article 446
carry out an inspection to rectify or ratify
the existing appraisal
From the inspection carried out jointly
No. 5 (September 14, 2018) with the property owners
Ratification of the constant valuation in of-
ficial letter DCA-VC-18-258 of the property
referred to in resolution No. DA-EXP-18-
085
Challenge Actor: Owners of the affected property
Process signed with Defendant: GAD Municipality of Ambato
6. LOSNCP article 58.2
No. 09802-2019-00389 Subject: Challenge of the fair price
Court: District for Administrative Litiga-
tion
Observations: In the process, the expropriated once notified with the expropriation resolution issued by the public administration, state that
they are in disagreement with the appraisal set by the Department of appraisals and cadastres of the GAD Municipality of Ambato, in turn, they
7. request a meeting with the Mayor, whose objective is to reach an agreement on the matter; not having the same, the expropriated, making use of
the right to challenge, sue the public entity before the District Court of Administrative Litigation based in Guayaquil so that in a sentence the real
value is determined for a fair price.
Source: FW expropriation file. 51152 GADMA (2017) [11, 12, 13, 14, 15]
Table 6
Distinction between cadastral and commercial appraisal
Property valuation Commercial appraisal
Affected Total Total Difference
Processes No. Value of each 𝑚2 Affected area 𝑚2 Value of each 𝑚2
area 𝑚2 appraisal (USD) appraisal (USD) percentage
1 73.81 24.36 1,798.01 73.81 83.36 6,152.96 242%
2 10.97 287,976 1,390.12 10.97 398.99 4,376.96 215%
3 614.87 774.08 475,963.27 614.87 839.83 516,387.04 8%
Source: GAD Ambato database
4. Discussion of results
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
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Fanny Perez et al. CEUR Workshop Proceedings 127–137
Table 7
10% increase in negotiation stage
Total pro- No. increase
10% increase in negotiation stage & &
cesses 2018 processes
Total 200 100% 4 2%
Source: GAD Ambato database
corresponding compensation or fair price. Within the internal legal system, expropriation is considered
a fairly old institution, which has always been incorporated into the different Ecuadorian constitutions
[16]. According to the criteria of the Constitutional Court of Colombia (Sentence T-284), expropriation
is an operation of political right, which is based on reasons of public utility or social interest, for which
the State coercively deprives the ownership of a specific asset to an individual, following the specific
procedure and prior payment of compensation [17].
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 effective
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 [18].
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 efforts
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 [19]. The expropriation constitutes the
only and legal way available to the State, to acquire the property of a natural or legal person, for which
purpose the delivery of the corresponding compensation is necessary, if not, this procedure passes to
be a confiscation [20].
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
1
Constitutional Court of Ecuador: http://esacc.corteconstitucional.gob.ec/storage/api/v1/10_DWL_FL/
e2NhcnBldGE6J3RyYW1pdGUnLCB1dWlkOic4NDIzZTQxMi0yNTI1LTQyZWYtOTE1Ny0xMWIxNmNlZDdkNDEucGRmJ30=
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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 [21].
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 [22]. From another perspective, concerning the provisions and criteria established both
in the Constitution of the Republic, as well as by the Constitutional Court and the Inter-American Court
of Human Rights, within expropriation processes it is necessary to apply legal and technical criteria for
the valuation of the fair price, to regulate without any arbitrariness the compensation to be paid to the
expropriated, through transparent and real processes in correspondence with the characteristics of the
expropriated property [23].
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 effectively
an imposition of the public administration [24].
5. Conclusions
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
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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 Procure-
ment 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.
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