Expropriation Powers

Expropriation is the forced sale of property, most commonly land, for government purposes.  Expropriation powers allow a government to purchase a property at market value even if the owner does not want to sell.  Expropriation can be an important tool for local governments when they are trying to obtain land for necessary works and services that address health and safety issues.  It can also be used to obtain land for parks and other public uses.  However, it is rarely invoked because it generates controversy.

Expropriation under the Local Government Act

Under the Local Government Act, in order to exercise its powers or functions a municipality may expropriate land or works, including land for parks or other green space.  In using its expropriation powers, a local government must follow the procedure set out under the Expropriation Act.  This procedure allows the owner of the property to have the price that the local government must pay for the land determined by a tribunal called the Expropriation Compensation Board. 

The Local Government can expropriate outright (“fee simple”) ownership of property, or some lesser interest in land, such as a right to access land or a conservation covenant over certain features on the land.  See the Guide Page on the Land Title Act for more information about these types of ownership.  A municipality may also expropriate a water license (held by a private party under the Water Act) where the licence would provide a water supply suitable for the municipality. 

When a landowner believes her or his land has been expropriated by regulatory action but the government does not acknowledge an expropriation, the landowner may bring a claim for a de facto or effective expropriation.  A landowner may also challenge the expropriation through judicial review if procedural steps have not been followed.  If you are considering taking any of these steps, please consult a lawyer.

The Local Government Act also authorizes municipalities to “appropriate” land that constitutes the channel or bed of a stream that passes through the municipality, without compensation to the owner.  This can only be done in order to:

·          build or maintain dikes,

·          maintain the proper flow of water in a stream, ditch, drain or sewer in the municipality,

·          reclaim or protect land or the banks of streams from erosion,

·          make a watercourse part of the municipal drainage system, or

·          protect a highway from damage by water.

Interference with Land May not be Expropriation

Property owners are sometimes quick to feel that they should be compensated for any actions of the local government that interfere with their property.  However, not all use of land amounts to an expropriation.

Generally, landowners whose land is affected by a zoning or planning process are not entitled to compensation for changes to the value or use of the land.  The Local Government Act states explicitly that compensation is not payable to any person for any reduction in the value of that person's interest in land, or for any loss or damages that result from the adoption of an official community plan or a bylaw under the Planning and Land Use Management sections of the Act.

There are exceptions to this general rule, such as cases where:

·          A zoning bylaw effectively removes any private use of land (e.g. a zoning bylaw that requires the entire property to be left totally untouched for future generations would require compensation);

·          A zoning bylaw explicitly requires private land to be used for a public purpose (e.g. zoning private land for private recreational use is fine, but zoning it for a public park will result in a requirement to pay compensation); or 

·          The local government’s purpose in rezoning a property is to drive down price of the property so that the local government can purchase it (as opposed to a case where the reduction in property value occurs as a side-effect of a zoning bylaw passed for a legitimate public purpose).

Other compensation requirements

The Local Government Act also raises the possibility that a land owner may claim compensation where construction of a public work or service on an adjacent property results in a decrease of the property value of the land owner’s property.  Thus individuals who live next to a sewage disposal site operated by a local government have been able to claim compensation for the resulting loss of property value to their own property.  However, there are legal tests to be met before a claim for “injurious affection” can be made.  Individuals facing this problem are advised to consult a lawyer. 

Related Guide Pages:

·          Local Government Act

·          Land Title Act

For more information about the Local Government Act Expropriation Powers:

·          The relevant portion of the Local Government Act

·          Expropriation Compensation Board website