Eminent Domain Expropriation of Land
Jack who rips your land with or without “Justice, Wisdom & Mercy”
By Ponthep Werachon

The quotation “a man’s house is his castle” implies the owner’s right to exclusive use and privacy of the land and house without any disturbance even from the state. In the past, all lands in the country belong to the King who allocated the lands to all subjects with the areas according to their responsibilities in a community even slaves could have at least five rais of land.  People could develop the empty plot of land and reserve the right to use the land as “Freehold Right”.
However, certain limitations and restrictions may be placed upon the owner in the enjoyment of his property. The limitation we will discuss in this article is the deprivation of the ownership under the right of “Eminent Domain”.

We had a client who bought an empty plot of land to build up a house without a lawyer. However, once he applied for a building permit with the City Hall, he was informed that he could not use this land because it was in the zone that the City Hall would make a new road.

Some people may compare this situation to the thriller story “Jack the Ripper”. In this article, you will learn that Jack is not the real thriller in this situation because you may still invoke for “Justice, Wisdom and Mercy” under Thai laws. Only the ignoramus will be easily ripped without proper defense.

In the past, the King had privileges to expropriate the land as it is deemed expedient. There is a legal research that the King would always give the evicting people fair compensation or arrange for relocation to the new places.

The universal concept in developed countries of “Eminent Domain” is the right of the state to take over a person”s real property with or without his consent, for a public purpose known as the right of  “Eminent Domain”. This right is exercised when property is needed for public benefit, e.g., highway, dam, bridge approach, electric plants etc.

When private property is taken under the right of “Eminent Domain”, a fair price is paid to the owner by governing authorities. If the owner refuses to accept the price offered, condemnation proceeding are bought by the government and commissioners are appointed to appraise the property. The appraised value is paid to the owner.

The right of  “Eminent Domain” may be exercised under special conditions granted by legislation or state authority to quasi public corporation (state enterprise). These include electric and telephone right-of-way, oil and gas pipelines, and other privately owned ventures which are created for the public good and are under the regulation and supervision of state authority.

The Constitution of the Kingdom of Thailand  (1997), which is the supreme law of the Kingdom whereby no provision of any law, rule, or regulation can be contrary or inconsistent guarantees that “the property right of a person is protected. The extent and the restriction of such right shall be in accordance with the provision of the law”

The ideology of  “Justice, Wisdom & Mercy” for state to exercise the right of “Eminent Domain” is specified in Section 49.- as follows :-

The expropriation of immovable property shall not be made except by virtue of the law specifically enacted for the purpose of public utilities, necessary national defense, exploitation of national resources, town and country planning, promotion and preservation of the quality of environment, agricultural or industrial development, land reform, or other public interests, and fair compensation shall be paid in due time to the owner thereof as well as to all persons having rights thereto, who suffer loss by exploitation as provided by the law.

The amount of compensation under paragraph one shall be fairly assessed with due regard to the normal purchase price, mode of acquisition, nature and situation of the immovable property, and loss of the person whose property or right thereto is expropriated. The law on expropriation of immovable property shall specify the purpose of the expropriation and shall clearly determine the period of time to fulfill that purpose.

If the immovable property is not used to fulfill such purpose within such period of time, it shall be returned to the original owner or his or her heir. The return of immovable property to the original owner or his or her heir under paragraph three and the claim for compensation paid shall be in accordance with the provisions of the law

The Constitution 1997 which is the most modern constitution in the world establishes only the main principle while all practicality and implementation can be ascertained in the Expropriation Act 1987.

The Constitution 1997 specifies that the state can exercise the right of “Eminent Domain” to expropriate immovable property only under the following purposes :-

1)      Public utilities
2)      Necessary national defense
3)      Exploitation of national resources
4)      Town and country planning
5)      Promotion and preservation of the quality of the environment
6)      Agriculture or industrial development
7)      Land reform
8)      Other public interests

The plan for expropriation of immovable property can be initiated by either ministry or local administration or state enterprise (quasi state corporation) e.g., Bangkok Metropolis, Pattaya City or Rapid Transit Authority of Thailand.  The plan for expropriation must be studied and submitted to the government who will carefully consider the reason and purpose of expropriation and sometimes arrange for a public hearing. If the cabinet approves the plan, the Royal Decree will be drafted and forwarded to his Majesty the King for final deliberation and approbation. The Royal Decree is a subordinate legislation not required to be considered and passed by the parliament. The Royal Decree will specify the reason, scope and areas of expropriation. The Commissioner consisting of representatives of the governmental office or organization initiating the expropriation or other concerned organization, land department and local council will be appointed for such mission.

The Commissioner will study the condition and purpose of expropriation to survey the areas and ascertain the value for the fair compensation. The Royal Decree normally will

have the commissioning period of two years or not more than four years in a special situation. The copies of the Royal Decree with the location of areas under the plan of expropriation will be posted to the public at the City Hall, Land Office, Local Council where the land is located. The Commissioner will negotiate the value of the land and building with the owner. Many prudent buyers will check if the land they will buy is under the Royal Decree of Expropriation.

The Constitution 1997 strongly guarantees the fair compensation to remedy people suffering from the expropriation. This ideology is corresponding to the Expropriation Act 1987 specifying that the “Fair Market Value” of the property will be used for calculation of the compensation by the Commissioner.

If the value of the property can be mutually agreed with a scope of expropriation, the Commissioner will make a report to the government  to have final deliberation. If the Government agrees with the Commissioner, it will draft the Act of Parliament to implement the expropriation. A draft of the Act will be debated by members of parliament  before voting by both houses.

If the owner of the land to be expropriated is not satisfied with the decision of the Commissioner, such owner may file the appeal to the minister in charge within sixty days. The minister in charge will form the commissioner consisting of at least five learned lawyers and real estate appraisers who will study and make an opinion to the minister for the final decision.  If the decision of the minister is not satisfactory to the owner of the land, the owner can finally file a petition to the Administrative Court within one year from the date the decision is made by the minister. Many owners argue about the reasons of expropriate and value of property for calculation of compensation. Even you accept and receive the compensation, you still have the right to file the appeal.

The Administrative Court is independent and impartial. We have the empirical knowledge that the Thai judicial system is quite transparent and independent under the famous Doctrine of  “Separation of Powers” of the French wise man “Montesquier” who separated power into Executive Power, Legislative Power and Judicial Power. Only the power can balance the power. We do believe that “without the balance, absolute power will corrupt absolutely”. At the end of the tunnel, you may see the light of  “Justice, Wisdom and Mercy”.

“without the balance, absolute power will corrupt absolutely”.