A community benefiting from the expropriation of a property cannot, in the event of a transaction on the price, obtain from the expropriated party that it renounces its possible right of retrocession if the property was not ultimately used, judged the Court of Cassation.
According to the law, if five years after an expropriation a property has not received the intended use, the expropriated party may ask to recover it. If the return of this property has become impossible because it would have been resold to a third party or because it would have been assigned to another use, the former owner is entitled to compensation.
This time, the owner of a piece of land had been expropriated by his commune to carry out a real estate operation. The expropriation judge having pronounced the transfer of ownership, the municipality and the former owner had signed a transaction on the price.
Several years later, the former owner observed that the real estate operation declared to be of public utility, for which his land had been taken from him, had not been carried out. He asked for it to be returned, but the municipality refused. In the transaction, she said, it was expressly provided for the waiver of this right of retrocession.
Waiver void
The Court of Cassation in a judgment of January 19 found this municipality wrong. To waive a right, you must first have it. However, when this expropriated person renounced it, it was less than five years after the expropriation and his right of retrocession had not yet been born, she observed. It was only contingent and uncertain. The waiver was therefore void.
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This right of retrocession having arisen subsequently, five years after the order of the expropriation judge, the expropriated party could then claim the restitution of his property or, this time, renounce this right.
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