Requisition of property is ordered exceptionally

Requisition of property is ordered exceptionally

by George Coucounis

“A requisition order is an exceptional measure to cover only urgent needs”

THE requisition of an immovable property intends to serve the public benefit and is an exceptional measure to cover an urgent need. It presupposes the issuance of an order published in the Official Gazette and determines the purpose for which it became necessary, the reasons for the requisition and when it will start, as its duration cannot exceed a total of three years. The purposes of public benefit are defence and security, public order and health, town planning, the development of agriculture, industry, commerce and tourism, archaeological excavations, the creation and development of transport and the execution of public works. Requisition is an autonomous administrative act, distinguished from compulsory acquisition and its purpose is to facilitate the acquiring authority to enter the affected property before the payment of compensation to the owner when the execution of the works is urgent. The compensation payable for the requisition corresponds mainly to an amount equal to the rent which would reasonably be expected to be paid by the lessee due to the possession of the property. In case of business activity, the compensation payable is equal to the damage the owner will suffer due to the non-use of the property or is equal to the reduction of the value of the property due to the works of the requisition.

In the event that the requisition is used to cover a permanent need, the owner has the right to file a recourse before the Administrative Court and request the annulment of the order. The Administrative Court in a judgment issued on 10.2.2021, examined the recourse of the owners of affected immovable properties due to the issuance of a new requisition order with retrospective effect in relation to their properties, the requisition of which had been annulled through a previous recourse. Although the validity of the requisition order expired before the hearing, the applicants proceeded with their recourse stating that damage was likely to result from the loss of possession and use of their properties, which they would claim if the recourse succeeded. The Court declared the recourse admissible and upheld its continuation for hearing, stating that the trial is not dismissed or loses its object when the applicant suffers adverse effects from the administrative act while it is still in force. In the event the order is annulled, the applicant acquires the right to claim damages for the loss he suffered due to the order.

The applicants argued, inter alia, as reasons for the annulment of the order, that there was no immediate or urgent need to resort to the onerous measure of requisition, that permanent and not temporary works would be executed contrary to their right of ownership and that if the order was not annulled, the total duration of the requisition of their properties would have been four years contrary to article 23.8(c) of the Constitution and article 4(3) of the Requisition of Property Law, L.21/1962. The Republic focused in their objection on the argument that the order served a purpose of public benefit and despite the requisition being an exceptional and temporary measure, it serves a public benefit which cannot be served by a less onerous measure, so deprivation of property is justified.

The Administrative Court pointed out in its judgment that the Republic gave reason for the issuance of the order, which was recorded in a relevant proposal by the Minister of Interior to the Council of Ministers. He referred to the risks posed if the project could not proceed, such as problems in the implementation of the project due to the inability to enter and carry out works, financial claims by the contractors of the project for delays that would arise and the risk of losing a European funding due to the delays and the increase of the total cost of the project.

The Court, however, held that, from the material and history of the case, but also from the very reasoning of the order, it had not been issued due to an urgent, absolute, imperative need, but in violation of case-law, to which the Court referred, for a permanent need, for the execution of permanent works in the properties of the applicants concerning the improvement of an avenue and its backroads. The Court referred to decisions of the Council of State of Greece which gave the definition of the term “requisition” as “temporary deprivation of use and enjoyment of a property by a unilateral act of the State, for the purpose of satisfying an urgent and immediate public need”. Therefore, the Administrative Court concluded that no lawful reasoning had been given for the issuance of the requisition order, which it annulled.