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Over the years, the expropriation of privately owned property for public purposes has increased steadily. A specialized field for real estate appraisers is now developing, requiring the knowledge of national laws and regulations and a familiarity with appropriate appraisal techniques. Both urban and rural property may be involved, and appraisers may be employed either by the government agency, expropriating the property under its power of eminent domain, or by the private owner whose property is being taken.
ď ˝ Eminent
domain is the "right or power of government to take private property for public use upon making just compensation therefore.
Expropriation is the process by which the right of eminent domain is exercised. It is defined as: The right of government and duly authorized units of government invested with right of eminent domain, to take private property for public use and benefit, upon the payment of just compensation. It is the act of the sovereign in substituting itself in place of the owner and/or the act of taking all or part of the rights of an owner.
If the amount of "just compensation" cannot be settled by negotiation with the owner, expropriation proceedings are instituted.
Right to exercise power of eminent domain just compensation. -- The right to take private property under the power of eminent domain is inherent in the government. This rights had been sustained the Supreme Court in several cases.
Purpose for Exercising Power of Eminent Domain. 1. national government infrastructure, engineering works and service contracts, including all projects covered by Republic Act No. 6957, as amended by Republic Act No. 7718, otherwise known as the Build-Operate and Transfer law and all other related and necessary activities undertaken by an Implementing Agency, such as equipment and materials, implementation, construction, completion, operation, maintenance, improvement, repair and rehabilitation regardless of the source of funding.
2. Projects which include but not limited to a) highways, including expressways, roads, bridges, interchanges, tunnels, and related facilities; (b) railways and mass transit facilities; (c) port infrastructure, like piers, wharves, quays, storage, handling, and ferry services; (d) airports and air navigation, steam and power generation, transmission and distribution; (e) telecommunication; (f) information technology infrastructure; (g) irrigation, flood control and drainage; (h) water and debris retention structures and dams; (i) water supply, sewerage, ad waste management facilities;
(j) schools and health infrastructures; (k) land reclamation; (m) dredging and development; (n) industrial and tourism estates; (o) government school buildings, hospitals and other buildings and housing projects; (p) markets and slaughterhouses; and (q) other similar or related infrastructure works and services of the national government which are intended for public use or purpose.
Attitude of expropriation courts toward taking of property. The attitude toward private ownership in the courts of expropriation has changed over the years. Protection of private property was a fundamental part of our early laws. In the rural areas, a family spent a lifetime, or perhaps two or more generations, developing a farm – clearing away natural debris, draining, fencing, planting trees, erecting homes, creating water supply and drainage and building roads. Courts are reluctant to take away the results of much human effort and thereby destroy incentive. Today, the courts are more concerned with the need of the public, rather that the hardship of the owner. The only issue involved is the amount of "just compensation" to the owner.
R.A. No. 8974, the Implementing Agency may avail of the following modes of acquisition: 1. donation; 2. quit claim; 3. exchange or barter; 4. negotiating sale or purchase; 5. expropriation; and 6. any other modes of acquisition authorized by law. (Sec. 3, R.A. 8974)
In cases where the owner of a private property needed by the government implementing agency does not agree to convey his property to the government by any of the foregoing modes of acquiring and/or transferring ownership of the property then the government shall exercise the right of eminent domain by filing a complaint with the proper Court for the expropriation of the private property.
The following general rules with respect to "just compensation" may be stated: “
1.Where the whole of an owner's property is taken in for public use or purpose,"just compensation" is the "market value" of the property at the time of the taking. 2. In a partial taking, the owner is entitled to compensation for the market value of the part taken, and also for damages, if any, to the remainder, known as "severance damage." Severance damage is the difference between the market value of the remaining property before the taking and the market value, after the taking.
3. The market value of the part taken and severance damage to the remainder are usually estimated separately. The market value of the whole property before the partial taking and the market value after the taking are estimated, the difference representing compensation both for the taking and for severance damage. 4. Just compensation may include not only for the taking but also for consequential damages sustained because the use to which property acquired by the expropriating agency is to be put may result in damage to the remainder.
5. Damages that are speculative, remote, or uncertain are not compensable. 6. The measure of compensation in expropriation is determined by the difference between the value before the taking and the value after the taking.
Summary in Expropriation Proceedings
1. Private property may be taken in expropriation proceedings by the national government or local governments under the power of eminent domain, with “just compensation� to the owner. The power may be delegated to various government departments and agencies. 2. All types of real estate may be involved in the expropriation proceedings.
3. Purposes of expropriation by the national government or local government include military uses, roads, schools, hospitals, parks, relocation sites, and other public uses. 4. An owner whose property is taken in expropriation is entitled to be compensated on the basis of the market value of the property at the time of the taking. In a partial taking, he is compensated for severance or consequential damage to his remaining property.
5. In partial taking, severance or consequential damage is generally the difference between the market value of the remaining property before the taking and the market value after the taking. 6. No compensation is allowed for damages that are speculative, remote, or
7. On expropriation of the property, relocation assistance to owners and tenants of residential and commercial property may be provided by law. 8. In the event of disagreement between owner and expropriating agency as to the amount of just compensation and help in negotiating a compromise or to testify in court.
9. An appraiser-witness testifies in court as to the factors that he took in consideration in estimating market value, and as to the process by which he arrived at his estimates of the amount of damages. 10.Preparation for trial by the appraiser includes inspection of the property, assembling of data, estimate of “just compensation,� consultation with his employer’s attorney. Preparation of a written appraisal report, and plat, maps, charts, and photographs are also advisable.
11.The appraiser presents his opinion and conclusions on direct examination. Statements made and other relevant matters are subject to cross-examination by opposing counsel. An appraiser-witness may be disqualified if he appears to be lacking in judgment, knowledge of his subject, or honesty. 12.The appearance and conduct of the appraiser as a witness, as well as the nature of his testimony, are important to its effect. His reputation as an appraiser is also at stake every time he takes the stand as an expert witness in expropriation proceedings.