Your Rights Under Expropriation
to Expropriation Act
Growth and expansion often result in the need to establish, enlarge or improve public buildings, roads, parks and services. In some cases a public agency may need to acquire private property to achieve these goals.
Usually when private property is acquired for public purposes, the owner and the public agency reach an agreement as to the amount of money the owner will receive. Then, the sale is completed just as if the owner had sold the property to a private purchaser.
However, when the owner does not agree to sell the property to the public agency, either because of the amount of money being offered, or for some other reason, the law may authorize the agency to expropriate the land. In this case, the expropriation process, the method for determining compensation, and the rights of both the owner and the expropriating authority, are set out in the Expropriation Act. (as amended by the Expropriation Amendment Act and related regulations)
The legislation has recently been revised as noted on the home page.
WHAT IS EXPROPRIATION
Expropriation occurs when a public agency (for example, the provincial government and its agencies, regional districts, municipalities, school boards and utilities) takes property for a purpose deemed to be in the public interest, even though the owner of the property may not be willing to sell it.
WHEN IS A DECISION MADE TO EXPROPRIATE?
Generally property is expropriated only if there is a failure to reach an agreement between the owner and the agency as to the amount to be paid. Even in this case, the owner and the expropriating authority can enter into an agreement to transfer the property leaving only the amount to be paid to be determined by the Supreme Court.
WHAT CAN BE EXPROPRIATED?
Any interest in land and improvements such as buildings, may be expropriated.
WHO ARE THE MAIN PARTIES INVOLVED IN AN EXPROPRIATION?
There are three main parties involved in an expropriation. They are:
- The owner(s) of the property.
- The expropriating authority — this is the body empowered to expropriate land and includes the provincial government and its agencies, regional districts, municipalities, school boards and utilities. It is the expropriating authority with whom you will initially deal and with whom you will discuss the matter of compensation.
- The approving authority — all expropriations must be approved by an elected, politically accountable authority. Municipal councils are politically accountable for municipal expropriations, the Board of School Trustees for expropriations under the School Act, and the Minister responsible for the administration of government legislation in other cases of expropriation.
WHAT ARE THE STEPS IN AN EXPROPRIATION?
Once a decision has been made to expropriate, the steps are as follows:
1. EXPROPRIATION NOTICE: This is the first formal notice you will receive that your property is being considered for expropriation. It must contain the purpose for which expropriation is required. The Act requires that the Notice be:
- sent by registered mail to every person having a registered interest in the property, together with a copy of the Act
- posted on a sign on the land to be expropriated (or if the land is located outside a municipality, the Notice may be published in a local newspaper); and
- filed in the local land title office.
The Expropriation Notice may also be delivered by hand.
You may find it advisable to contact your lawyer upon being officially notified of an expropriation. All reasonable legal costs incurred by you pertaining to the expropriation will, in most circumstances, be reimbursed by the expropriating authority.
2. REQUEST FOR AN INQUIRY: Once the Expropriation Notice has been served, you may request an inquiry to determine whether the proposed expropriation of the land is necessary to achieve the objectives of the expropriation authority, or if the objectives might be better achieved by varying the amount of land taken or using an alternate site. The provision for an inquiry does not apply to "linear developments" which include highways, railways, hydro or other electric transmission/distribution lines, pipelines, sewer, water or drainage lines/mains.
Your request for an inquiry must be made in writing to the Deputy Attorney General (on Form 2), and served on the expropriating authority within 30 days after receiving the Expropriation Notice. The form must contain the following information:
- your name, address and telephone number;
- the legal description of the land to be expropriated;
- the nature of your interest in the land to be expropriated;
- the reasons for requesting an inquiry.
Carol Anne Rolf, Executive Director, Strategic Planning and Legislation Office
Ministry of Attorney General, PO Box 9283, Stn. Prov. Govt.
Victoria British Columbia V8W 9J7
Phone 250 356-5157
3. PUBLIC HEARING: Within seven days of receiving your request for an inquiry, the Deputy Attorney General (Or designate) will appoint an inquiry officer who will hold a public hearing. In certain circumstances, for example if the request is based solely on a claim for compensation, the Deputy may deny the request. The inquiry officer will set a time and place and will notify everyone who has been advised of the intention to expropriate that a hearing will be taking place. The expropriating authority and all other parties having an interest in the land will be heard by the inquiry officer who must prepare and submit a report within 30 days containing recommendations respecting the expropriation to the approving authority.
4. CONFIRMATION OF INTENTION TO EXPROPRIATE: After considering the inquiry officer's report, the approving authority approves, modifies or disapproves of the expropriation. Once an expropriation is approved (or approved with modifications) compensation must be determined.
5. ABANDONMENT OF EXPROPRIATION: The expropriating authority may decide to abandon all or part of the intended expropriation. If this occurs, a Notice of Abandonment will be filed in the land title office. A copy of the Notice will be sent to the approving authority and every who was served with an Expropriation Notice.
When an expropriation is abandoned, in whole or in part, compensation is payable to the owner for any damages suffered as a result of the expropriation being started and for reasonable legal, appraisal or other costs.
6. NOTICE OF POSSESSION: This must be served on the owner to provide appropriate advance notice before the expropriating authority can take possession of the land. The expropriating authority must have made the advance payment (explained in the next section) before it can obtain possession.
7. COMPENSATION: The compensation provisions of the Act are based on the general principle that, after receiving compensation, the owner should be in the same economic position as before the expropriation. The following guidelines are used for determining compensation: (refer to "Opening a Claim with the Supreme Court")
A. Advance Payment: Within 30 days of approval being given to proceed with an expropriation, the expropriating authority must make an advance payment of compensation. This payment must be accompanied by an appraisal report that forms the basis for the amount advanced. You, in turn, have the right to have your property valued by an appraiser of your choice. The reasonable cost of this appraisal will be paid by the expropriating authority.
You are entitled to receive the advance payment on a "without prejudice" basis. This means that accepting payment does not deprive you of the right to claim additional compensation, providing you make the claim within one year. There could be elements of value of which the approving authority is unaware at the time the advance payment is made. Therefore, you may:
- within one year, request that the Court determine the amount of compensation payable to you;
- take legal action by applying to the Court of Appeal to review any orders or determinations of the Supreme Court.
B. Market Value: The Act sets out what is meant by market value. It is the amount that would have paid for the expropriated property or interest if it had been sold at the date of expropriation in the open market by a willing seller to a willing buyer.
C. Additional Compensation to Occupiers and Tenants of Residential Premises: Where the expropriated land includes a residence occupied by the owner, additional compensation in the amount of five per cent of the market value may be paid for that portion used for residential purposes not exceeding 0.5 hectares. Compensation for tenants with leases of less than one year is limited to an amount equal to three months' rent and reasonable moving costs.
D. Disturbance Damages: An owner or tenant (including the tenant of residential premises having a lease of more than one year) is entitled to be compensation for various disturbance damages which include reasonable costs directly attributable to the expropriation such as moving, legal and survey costs. Special provision is also made where a business is being conducted on the expropriated land. If it is not feasible to relocate the business, an additional amount may be included to reflect the value of the goodwill of the business.
E. Other Situations: Compensation may be awarded on a different basis where there is a limited market for the expropriated property (for example, churches or schools). In such a case, compensation may be based on the reasonable cost of rebuilding on another site, unless the owner elects to be paid in accordance with the regular compensation provisions of the Act.
The Act recognizes that in some circumstances the market value of the land may not include the value of a special economic advantage to the owner. This advantage may arise out of the owner's occupation or use of the and, or the value of improvements made by an owner occupying a residence situated on the land. The Act provides that the value of the advantage or improvements is added to the market value.
During the course of the expropriation process, people such as appraisers and surveyors may request access to your property. You should insist upon seeing proper identification from any person claiming authorization to enter your property. However, you should also be aware that it is an offence to refuse entry to an authorized.
This website serves to provide only an introductory guide to the Expropriation Act. It is not a legal interpretation. Copies of the Act and relevant regulations can be obtained from:
521 Fort Street
Victoria, British Columbia
Phone: (250) 386-4636
Fax: (250) 386-0221