24-04-2013

Land Easement And Acquisition In Albania

Authors

  • Redi Basha, Corporate Lawyer LLB, LPC
    Partner at ABKons Law Firm

Land Easement and Acquisition in the light of the European Convention of Human Rights

Sustainabledevelopmentrequiresgovernmentstoprovidepublicfacilitiesandinfrastructure that ensure safety and security, health and welfare, social and economic enhancement, and protection and restoration of the natural environment. An early step in the process of providing such facilities and infrastructure is the acquisition of appropriate land.

A balanced approach to land acquisition requires a respect for the human rights of owners and occupants of the land to be acquired. Various international laws reflect the concern for protection of land rights and the payment of compensation when people are displaced. The Universal Declaration of Human Rights (Article 17) provides that “everyone has the right to own property alone as well as in association with others” and that “no one shall be arbitrarily deprived of his property”.

The European Convention on Human Rights and Fundamental Freedoms (Albania is a member) provides that everyone has the right to respect for his private and family life, his home and his correspondence. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well­being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others. This right is expanded by Article 1, First Protocol.

What is the legal perspective of Land Easement and Acquisition in Albania? What are the safeguards for LEA in the Provisions of the Constitution of the Republic of Albania?

The first provisions of the land easements and acquisition principles are provided in the Constitution of the Republic of Albania which provides that the right of private property is guaranteed. Property may be gained by gift, inheritance, purchase, or any other classical means provided by the Civil Code. The law may provide for expropriations or limitations in the exercise of a property right only for public interests. The expropriations or limitations of a property right that are equivalent to expropriation are permitted only against fair compensation. For disagreements connected with the extent of the compensation, a complaint may be filed in court. 

What are the types of proprietary rights over land - European Legal Perspective?

Rights to use may be divided into extensive rights of use giving possession (in particular right of superficie, usufruct, usus, right of habitation, emphyteusis, building lease and timesharing rights) and limited rights of use, the most important ones being easements or, synonymously, servitudes. Rights to use may be divided into extensive rights of use giving full possession (1) and limited rights of use, also called proprietary burdens (2). Most of these rights of use require registration to be opposable erga omnes in most systems. The most important category of limited rights of use are easements, on the continent also called servitudes (Grunddienstbarkeiten). Easements may entitle to use neighbouring property in different ways, including a right of way for pedestrians and/or vehicles, the construction of water and sewer tubes or systems, of dividing constructions, the provision with light or a certain view (not recognised in England) and the distance between buildings. However, easements do not, with the single exception of the Scottish real burdens, extend to duties of positive action of the owner of the neighbouring land1.

As regards their holder, easements may be divided into two types: First, easements in appurtenance, i.e. to the benefit of the owner or possessor of neighbouring land; in this sense, one may refer to a dominant tenement (piece of land) and a servient tenement. Second, easements in gross, i.e. to the personal benefit of another person (beschrankte personliche - Dienstbarkeiten, §§ 1091 ss. BGB). Whereas easements in gross are recognised as real rights in most European countries, they have only obligational status in some systems including Portugal, the Netherlands England and Scotland. In the latter two countries, in addition to (positive and negative) easements in appurtenance in the sense just described, one also finds restrictive covenants respectively real burdens (i.e. formal restrictions of the use of neighbouring land, to be found today mainly in apartment flat schemes and commonholds). Unlike easements which may be created also by division or long adverse possession (usucapio), restrictive covenants may only be created expressly by a deed of covenant2.

Are there any other proprietary rights that an investor might consider to acquire land for purpose of developing an infrastructure project - Albanian Perspective?

Easements acquired through the provisions of the Albanian Civil Code (Servitudes)

Albanian Civil Code (Title 6 Servitudes) regulates the ownership right over immovable properties and other related rights such as servitude (easement), emphyteusis, usufruct and lease. These rights may be created by contract or by law3 .

According to the article 261 of the Civil Code, the Servitude consists of a burden imposed on a property, for the utilization and utility of a property of another owner”. It has to be mentioned that the Servitude according to the Civil Code is established by law or man’s will. The Law on Immovable Property Registration No. 33/2012 stipulates that the owner of an immovable property registers an easement, by presenting to the recorders the act of creation of the servitude, in the form required by law.

Public Easements

Law No. 10119, dated 23.04.2009 “On Territory Planning” provides for the terms on the creation of public easement/servitude as lien or right imposed to an immovable property for the purpose of public use and for the benefit of a specific public interest. 

The public easement may be established by a local or national planning instrument (such as specific plans and/or regulations), or by a development request (application for construction permit). Apart from the public easements, the objective of the local and planning instruments is to define the location of roadways, railway lines, water resources, airports, ports, energy transmission systems, waste processing sites, and of the other public infrastructure and public easement. A public easement shall remain effective for an indefinite time, unless the act establishing it provides for a termination deadline.

It is important to underline that any public easement established for public interests, differently from the private easement established according to the provisions of the Civil Code, do not constitute an object of compensation for the owners of real property. Nevertheless, the owner of property may apply for compensation, when establishment of a public easement results in the modification in the prior status of the land or structure, which thereof incurs a direct and definite material damage. The request for compensation must be submitted to the responsible authority within six (6) months from the date of incurring damage.

Leasehold

Lease is a contract through which one party (the leasor) binds himself to give the other party (the leasee) determined thing, for temporary enjoyment towards a determined compensation. The lessor shall deliver the thing to the lessee in the time fixed and in condition that can permit the use agreed upon by the parties, take care to maintain the object in the same condition and guarantee peaceful enjoyment during the period of the lease. Lease contract cannot be stipulated for a period exceeding thirty years, unless the law provides otherwise. If it is stipulated for a longer period or without a term, will be effective for the above given term.

Emphyteusis

Emphyteusis is a contract, through which is given to a person a right to use and to improve an immovable property, towards a periodic compensation in cash or in nature. The duration of the emphyteusis is defined in the contract. The emphyteusis should be done in the required form for the transfer of the property for the immovable ownerships. Emphyteusis receiver enjoys the property like the owner, except for the limitations provided for in the contract for the creation of emphyteusis. However he cannot, without consent of the owner use the object for another destination. Emphyteusis receiver may ask at any time the dissolution of the contract and termination of the emphyteusis, except when provided differently in the contract.

Taxes and other obligations pending on the property are in charge of emphyteusis receiver, except when the law provides otherwise. The emphyteusis receiver can acquire in favour of the immovable property active servitudes and charge it with passive servitudes, for time anticipated in the contract, by always notifying the emphyteusis giver in writing.

1 Euro Contracts

Foreign investors may lease or take in emphyteusis state owned properties against the symbolic value of 1 euro, when realizing investments exceeding 10 million Euros or investments that help resolving economic or social problems in specific areas according to Decision of Council of Ministers no. 529, dated 08.06.2011 “On defining the criteria, the procedure and modalities for leasing or giving in emphyteusis or other contracts the state owned property”. Such contracts are granted based on a competition procedure.

Provision of a guarantee equal to 10% of investment value is required. Guarantee to be returned upon successful completion of investment.

Leasehold of Agricultural Land, Forest Land Meadows and Pastures, which are state property

Pursuant to Law No. 8318, 01.04.98 On Leasing the Agricultural Land, Forest Land Meadows and Pastures, Which Are State Property (amended) - in case of public land, the interested subject will obtain the land use through a lease contract signed with the Albanian State for 30-year duration.

What are the expropriation procedures in Albania?

Expropriation in Albania

Law No. 8561, dated 22.12.1999 “On Expropriations and Temporary Takings of Private Property for a Public Interest” regulates the right of the state to expropriate or take for temporary use for a public interest the properties of natural or juridical private persons, as well as the protection of the rights and interests of the respective owners.

Natural and juridical private persons have the right to the respect for the properties that they own. The expropriation of private properties is done only for a public interest, in the conditions when the public interest prevails over the private interests of their owners, in accordance with the conditions prescribed by the law and with general principles of international law.

The right to expropriation and temporary taking of private property is exercised for a public interest that cannot be realized or protected in another manner, only for the reasons and with respect for the procedures expressly set out in this law, to the extent that is essential for the realization of the purpose of the expropriation and in any case against fair compensation.

Expropriation and temporary taking of private property shall be done while respecting, and compensating in value, in accordance with the law, the rights of third parties in the private properties that are expropriated.

What is the existing practice in Albania in respect of Land Easements and Acquisitions? What kind of instrument is usually used to acquire land?

The Albanian legal framework confers a prima facie right on the developer regarding land access. Most infrastructure projects are implemented by the Government of Albania through its various ministries and agencies or by private investors though Private Public Partnership as governed by the Concession Law.

The Law on Concessions is very close to the UNCITRAL PFI Guide recommendations. Apart from the Concession Law most of these infrastructure projects are also regulated by their own sectorial law which is rather comprehensive and prima facie deals with the property/ land rights issues. Below are some LEA practices (infrastructure) in Albania for projects in various sectors of the Albanian economy.

Transport (roads, railway, airport etc)

The transport projects implemented by the Government of Albania such as road / highway construction mainly use the expropriation procedures to acquire the land due to the fact that the land acquisition is permanent. The largest project in this sector has been the construction of the Highway Milot / Morine 118 km in length, Tirana International Airport SHPK. There has not been any new railway project developed last 20 years by either by the Government of Albania or private investors.

Electricity (Power Generation, Transmission and Distribution)

The GoA has granted over 200 concession contracts mostly on BOT terms for building, operating and transfer of small, medium and large hydropower power plants. The practice so far with regard to the construction of these HPPs has been regulated in the concession agreement thus enabling the investor to acquire the land through expropriation.

Law No. 9072, dated 22.05.2003 On Power Sector provides a chapter wholly for the property granted to the licensees/operators in the energy sector. In connection with providing electric power service, licensees may request the use of one of the following third party property rights: a) cabling right; b) right of use; c) right of easement; d) expropriation.

In addition, a cabling right may be granted to the licensee for the installation and operation of the transmission and distribution network on third party property provided that this does not impede the use of the property.

Public easement may also be an alternative for construction of electricity transmission and distribution systems given that both activities are considered to be of public interest by the effective legislation.

Gas

Article 50 of the Gas law stipulates a property rights of licensees whereby it is envisaged that the licensees, for carrying out of the activities in the natural gas sector for each it is licensed, in compliance with the provisions of the Civil Code and the provisions of the law no. 8561, dated 22.12.1999 “On expropriation and taking in temporary use of private property for public interest” may request from third parties to exercise easement right, taking for temporary use of property or expropriation.

The investor that has obtained the infrastructure permit for the construction and operation of gas transportation pipelines and associated infrastructure is to enter into contractual agreements with the respective land owners over which the pipeline will be constructed, by means of an easement agreement as provided by the Albanian Civil Code (this shall be the case if the land is both State or private-owned). Public easement may also be an alternative for construction of gas transmission and distribution systems given that both activities are considered to be of public interest by the effective legislation. As a matter of fact, the Law no.9946, date 30.06.2008 “On natural gas sector”, specifically Article 20(1), considers the activity of transmission and dispatching of natural gas as an activity of public interest.

Oil

Land access and property is an important aspect of petroleum operations in Albania. The petroleum law contains only a general provision (Article 9(1)), which stipulates the right of the contractor to access and use any land either it is privately or publicly owned to carry out the petroleum operations under the agreement. However, the law is silent how the oil companies will exercise the land access rights on the oil prospect. In case the private ownership over the land, the contractor may enter either in negotiated settlement with owners to purchase, lease or enter into easement agreements according to the provisions of the Civil Code of the Republic of Albania or the contractor may request the NANR or METE to expropriate or take in temporary use the property of private owners according to the provisions of the law no. 8561, date 22.12.1999 “On expropriation and taking for temporary use of private properties for public interest” assuming that the petroleum operations for exploration and production represent an activity with public interest for the Government.

In case the land is owned by the Government or local authorities, the access and use of land may be granted free of charge for the contractor.

An important legal aspect of the access to the site is the right to pass or lay any pipeline through other private properties. In this case the company may invoke the provisions of the Title VI of the Civil Code on easement that enable the company to pass through or lay pipeline on a private land against a fair compensation for any damage incurred by the owner.

Telecommunications

The Law No. 9918 “On Electronic Communications in the Republic of Albania” dated 19.05.2008 recognises in principle the right to the Provider to use and access both private and state-owned properties for passing through the network infrastructure and/or settlement of the electronic communication equipment’s and/or their maintenance. In the case of a private-owned property, the Provider’s rights of use and access would be agreed upon between the property owner and the Provider, subject to an agreement. The Law does not address clearly how the right of access and/or use of a state-owned property would be recognised practically to the Provider.

Water Supply and Sewerage

In case that existing public primary or secondary water supply or sewerage pipelines cross private areas, or new lines for technical reasons have to be laid on private plots, respective servitudes have to be secured by Regional Water and Sewerage Public Company) on the private properties affected. Water-supply network servitudes shall be registered in the cadastral register in order to guarantee access at any time to the system and manholes on private area for construction, operation, maintenance and repair.


  1. Hurndall, Property in Europe -Law and Practice, 1998 (English language).
  2. Real Property Law and Procedure in the European Union, General Report, Final Version, scientific co-ordinators: Dr. Habil. Christoph U. Schmid, Ph.D. European Private Law Forum European University Institute, Florence; Christian Hertel, LL.M. Director DNotI (German Notary Institute), Wurzburg; Dr. Hartmut Wicke, LL.M., DNotI, Wurzburg 31.5.2005.
  3. Civil Code of the Republic of Albania nr.7850, dated 29.7.1994 (amended) , Book Two -Ownership and Property, Title 6 Servitudes (Easements) ( Article 261 -295).

 

GREEK LAW DIGEST REPUBLIC OF ALBANIA MINISTRY OF INTEGRATION Union of Chambers of Commerce and Industry of Albania
Nomiki Bibliothiki ALBANIA INVESTMENT DEVELOPMENT AGENCY Foreign Investors Association of Albania
     

 

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