Expropriation or controlling one’s private assets : does it make a difference?

Abstract

Expropriation and Control of Use are two very important principles when dealing with possession and use. The aim of this dissertation is to understand better the differences between expropriation and control of use; and to gain a better knowledge of one’s right of compensation, if any, when property is expropriated or control of use is applied for public use. Notably, while expropriation addresses the take of land and property, control over one’s private assets includes a wide array of how authorities can control and deprive one from his/her right of enjoyment of use. However this dissertation will specifically make reference to control of use with regards height restrictions, lease, and development near protected areas. The similarities and differences between expropriation and control of use will be tackled in detail. This study will focus on how these two terms differ when compensation comes into play. While there have been various authors who dealt with expropriation and the right to receive compensation in terms of expropriation, very few literature could be found on whether and how control of use could be compensated. In addressing the latter theme, the government does not deal with the acquisition of one’s private property but rather controls, prohibits, limits, and restricts one’s use over his/her private property. Thus limiting a person's right to enjoy and use it for personal enjoyment, which per se is in violation of Article 1 Protocol 1 of the European Convention on Human Rights. The issue as to whether compensation is to be granted , paves way to greater debate, as the government may not afford to provide monetary compensation to everyone claiming control of use. Nonetheless, financial hardship should not deprive a person of his/her entitlement to be compensated for being denied free use and enjoyment. Article 1 Protocol 1 and Article 17 of the ECHR, states that one is bound to receive fair compensation, but this concept has been debated in so far as control of use is concerned.