Is any agricultural land eligible for expropriation for reasons of afforestation and nature realization?

1. When the lessor is expropriated

If the lessor is expropriated, the old Farming Lease Law clearly states in the preparatory works that the consequences of an expropriation of a leased property are beyond the scope of the Farming Lease Law. In the case of judicial expropriation, the farming lease is cancelled juris et de jure by the judgment declaring the formalities fulfilled. 

Under the new Farming Lease Decree, expropriation is also only very briefly cited. 

In the context of career contract, it is provided that a lessor can terminate the current lease at any time in order to use the leased property in accordance with its final destination if the lease concerns land that is expropriated by a public administration or legal entity under public law after the conclusion of the agreement. 

In addition, the new Farming Lease Decree takes over a provision of the Farming Leasing Law which states that if property acquired or expropriated for public interest is re-leased, the former lessee has a right of priority at the maximum permitted lease price. The calculation of this maximum permissible rent is also provided for in the Farming Lease Decree.

2. Which agricultural land is eligible for expropriation 

As stated above, what is new in the Farming Lease Decree is that the lessor can terminate the lease at any time in order to use the leased property in accordance with its final destination, if the lease concerns land that will be used for afforestation or nature realization. Article 10 of the Leasing Decree sets out the applicable conditions:

7° The expropriation relates to land that will be used for afforestation or nature realization if all the following conditions are met:

(a) the land has a joint and contiguous area of at least 0.5 hectares;

(b) the afforestation or nature realization will be maintained for a period of at least 24 years;

(c) the land is located in:

1) either an area designated on a definitively adopted spatial implementation plan and falling under the category of area designation ‘forest area’ or ‘nature area’, mentioned in the Annex to the Flemish Government Decree of 11 April 2008 laying down further rules on the form and content of spatial implementation plans, the text of which was adopted by the Decree of 11 April 2008;

2) either one of the following areas designated on a regional plan, a general development plan or a special development plan: ‘forest area’, ‘green area’, ‘nature area’, ‘nature area with scientific value’, ‘nature development area’ or ‘nature reserve’;

3) or a special protection area as mentioned in Article 2, 43°, c), of the Decree of 21 October 1997 on nature conservation and the natural environment;

d) in the case of afforestation is not carried out under the compensation obligation mentioned in Article 90bis, §2, of the Forest Decree of 13 June 1990;

8° relates to land that will be used for afforestation or nature realization if all the following conditions are met:

(a) the lease was entered into with a municipality;

(b) the afforestation or nature realization relates to land with a continuous area of at least 0.5 hectares;

(c) the afforestation or nature realization will be maintained for a period of at least 24 years;

(d) the afforestation or nature realization has been approved by the municipal council;

(e) the lessor has not himself designated the land as an agricultural area in a spatial implementation plan;

(f) in the case of afforestation, it is not done as part of the compensation obligation set out in Article 90bis, §2, of the Forest Decree of 13 June 1990.

In the case of termination with a view to afforestation or nature realization, the judge may refuse to validate the termination if the viability of the existing business operations would be seriously disrupted. 

The judge may also limit the validation of the termination to specific plots of land or to a certain area, but only for the purpose of bringing the termination into line with the provisions on the viability of the existing farm.

For the following cases where the viability of the tenant's farm is seriously disrupted, please refer to Part 4 of this article series.

For the calculation of the area of plots for which the termination was given, the area of plots that were also terminated for afforestation or nature realization in a period of 27 years prior to the termination is also taken into account. To calculate the lessor his farm area, the average of the area of the last three years will be taken into account, as indicated in the collective application.

If you would like more information on this subject, please do not hesitate to contact our specialists at info@be.Andersen.com or +32 (0)2 747 40 07.