Property Meeting the Challenge of the Commons 3031252179, 9783031252174

Citation preview

Ius Comparatum – Global Studies in Comparative Law

Ugo Mattei Alessandra Quarta Filippo Valguarnera Ryan J. Fisher   Editors

Property Meeting the Challenge of the Commons

Ius Comparatum - Global Studies in Comparative Law Founding Editors Jürgen Basedow, Max Planck Institute for Comparative and International Private Law, Hamburg, Germany George A. Bermann, Columbia University, New York, USA

Volume 59

Series Editors Katharina Boele-Woelki, Bucerius Law School, Hamburg, Hamburg, Germany Diego P. Fernández Arroyo, Institut d’Études Politiques de Paris (Sciences Po), Paris, France Editorial Board Members Joost Blom, University of British Columbia, Vancouver, Canada Vivian Curran, University of Pittsburgh, Pittsburgh, PA, USA Giuseppe Franco Ferrari, Università Bocconi, Milan, Italy Makane Moïse Mbengue, Université de Genève, Geneva, Switzerland Marilda Rosado de Sá Ribeiro, Universidade do Estado do Rio de Janeiro, Rio de Janeiro, Brazil Ulrich Sieber, Max Planck Institute for Foreign and International Criminal Law, Freiburg, Germany Dan Wei, University of Macau, Macau, China

As globalization proceeds, the significance of the comparative approach in legal scholarship increases. The IACL / AIDC with almost 800 members is the major universal organization promoting comparative research in law and organizing congresses with hundreds of participants in all parts of the world. The results of those congresses should be disseminated and be available for legal scholars in a single book series which would make both the Academy and its contribution to comparative law more visible. The series aims to publish the scholarship emerging from the congresses of IACL / AIDC, including: 1. of the General Congresses of Comparative Law, which take place every 4 years (Brisbane 2002; Utrecht 2006, Washington 2010, Vienna 2014, Fukuoka 2018 etc.) and which generate (a) one volume of General Reports edited by the local organizers of the Congress; (b) up to 30 volumes of selected thematic reports dealing with the topics of the single sections of the congress and containing the General Report as well as the National Reports of that section; these volumes would be edited by the General Reporters of the respective sections; 2. the volumes containing selected contributions to the smaller (2-3 days) thematic congresses which take place between the International Congresses (Mexico 2008; Taipei 2012; Montevideo 2016 etc.); these congresses have a general theme such as “Codification” or “The Enforcement of Law” and will be edited by the local organizers of the respective Congress. All publications may contain contributions in English and French, the official languages of the Academy.

Ugo Mattei • Alessandra Quarta • Filippo Valguarnera • Ryan J. Fisher Editors

Property Meeting the Challenge of the Commons

Editors Ugo Mattei University of California, Hastings and International University College and University of Turin, Torino, Italy Filippo Valguarnera Stockholm University Stockholm, Sweden

Alessandra Quarta University of Turin Torino, Italy

Ryan J. Fisher University of California Santa Barbara, CA, USA

ISSN 2214-6881 ISSN 2214-689X (electronic) Ius Comparatum - Global Studies in Comparative Law ISBN 978-3-031-25217-4 ISBN 978-3-031-25218-1 (eBook) https://doi.org/10.1007/978-3-031-25218-1 © The Editor(s) (if applicable) and The Author(s), under exclusive license to Springer Nature Switzerland AG 2023 This work is subject to copyright. All rights are solely and exclusively licensed by the Publisher, whether the whole or part of the material is concerned, specifically the rights of translation, reprinting, reuse of illustrations, recitation, broadcasting, reproduction on microfilms or in any other physical way, and transmission or information storage and retrieval, electronic adaptation, computer software, or by similar or dissimilar methodology now known or hereafter developed. The use of general descriptive names, registered names, trademarks, service marks, etc. in this publication does not imply, even in the absence of a specific statement, that such names are exempt from the relevant protective laws and regulations and therefore free for general use. The publisher, the authors, and the editors are safe to assume that the advice and information in this book are believed to be true and accurate at the date of publication. Neither the publisher nor the authors or the editors give a warranty, expressed or implied, with respect to the material contained herein or for any errors or omissions that may have been made. The publisher remains neutral with regard to jurisdictional claims in published maps and institutional affiliations. This Springer imprint is published by the registered company Springer Nature Switzerland AG The registered company address is: Gewerbestrasse 11, 6330 Cham, Switzerland

Contents

Meeting the Challenge of the Commons: An Emerging Field of Common Core Research . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Ugo Mattei, Alessandra Quarta, and Filippo Valguarnera Property Meeting the Challenge of the Commons in Belgium . . . . . . . . . Delphine Misonne and Marie-Sophie de Clippele Property Meeting the Challenge of the Commons in Common Law Canada . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Lionel Smith

1 51

91

Property Meeting the Challenge of the Commons in Croatia . . . . . . . . . 125 Tatjana Josipović and Hano Ernst Property Meeting the Challenge of the Commons in Germany . . . . . . . . 171 Johanna Croon-Gestefeld Meeting the Challenge of the Commons in Italy . . . . . . . . . . . . . . . . . . . 195 Marco D’Alberti, Federico Caporale, and Silvia De Nitto Property Meeting the Challenge of the Commons in The Netherlands . . . 223 Björn Hoops La propriété face aux défis des biens communs au Québec . . . . . . . . . . . 251 Gaële Gidrol-Mistral and Alexandra Popovici Property Meeting the Challenge of the Commons in Russia . . . . . . . . . . 293 Maria Erokhova and Dmitry Dozhdev Property Meeting the Challenge of the Commons in Slovakia . . . . . . . . 327 Matej Mlkvý Property Meeting the Challenges of the Commons in South Africa . . . . . 347 Juanita Pienaar

v

vi

Contents

Property Meeting the Challenge of the Commons in Spain . . . . . . . . . . . 415 Elena Sánchez Jordán and Andrés González Sanfiel Property Meeting the Challenge of the Commons in Sweden . . . . . . . . . 451 Filippo Valguarnera Assailed: The Paradoxical State of the Commons in the United States . . . 483 Monica E. Eppinger and Heidi G. Robertson

Meeting the Challenge of the Commons: An Emerging Field of Common Core Research Ugo Mattei, Alessandra Quarta, and Filippo Valguarnera

Abstract The General Report introduces the research, discusses data provided by the national reporters, and draws some overarching conclusions. It is divided into five sections. The first section explores the recent resurgence of the commons in the works of legal scholars, particularly in Italy and the United States. The second section examines the methodology of the research and structure of the questionnaire, with particular emphasis on the advancement of comparative legal methodology. Sections 3 and 4 analyse the two parts of the questionnaire: open questions, concerning emergence of the commons as a specific concept or scholarly topic, and case-based questions, where the national reporters are asked to analyse concrete

The research for this General Report was conducted communally. Alessandra Quarta drafted Sects. 1, 2, and 3; Ugo Mattei drafted Sects. 4 and 5; Filippo Valguarnera worked on the questionnaire and revised the text. Ryan J Fisher edited his co-editors. Thanks to each of the national reporters. Thanks also to Saki Bailey for contributing to the first version of the Questionnaire (which is the subject of this General Report) and to the IUC staff. Some parts of the chapter are already been published as ‘Property Meeting the Challenge of the Commons’ authored by Ugo Mattei and Alessandra Quarta in the ‘General Reports of the XXth General Congress of the International Academy of Comparative Law - Rapports généraux du XXème Congrès général de l’Académie internationale de droit comparé’, Springer International Publishing 2021, pp. 23–50. It should be noted that most reports were prepared in 2018 and have since then only undergone minor updates. U. Mattei University of California, Hastings, San Francisco, CA, USA International University College and University of Turin, Torino, Italy e-mail: [email protected] A. Quarta University of Turino, Torino, Italy e-mail: [email protected] F. Valguarnera (✉) Stockholm University, Stockholm, Sweden e-mail: fi[email protected] © The Author(s), under exclusive license to Springer Nature Switzerland AG 2023 U. Mattei et al. (eds.), Property Meeting the Challenge of the Commons, Ius Comparatum - Global Studies in Comparative Law 59, https://doi.org/10.1007/978-3-031-25218-1_1

1

2

U. Mattei et al.

legal issues related to housing, health care, food, water, natural resources, territory, culture, and climate. Crossing a bare common, in snow puddles, at twilight, under a clouded sky, without having in my thoughts any occurrence of special good fortune, I have enjoyed a perfect exhilaration. I am glad to the brink of fear.1 [E]very struggle against enclosure and for the commons inevitably becomes a call of jubilee.2

1 Entrance by the Commons onto the Stage of Comparative Law 1.1

Introduction

Property law is a classic discipline of comparative law; the commons,3 however, has emerged only recently on the stage of the latter. Global engagement in this inchoate field of studies is evident over the past two decades:4 the commons has become regnant in social studies and political activism, and lawyers in many countries have embraced the concept in their praxis. Statutory definition of the commons is rare. Lawyers are exposed to the notion, however, through the lens of property law: students from variegated legal traditions used to learn the origins of property rights from the springboard of the so-called tragedy of the commons, the parable by Garrett Hardin published in the late Sixties.5 According to Hardin’s argument, the theoretical impossibility to avoid overexploitation of resources in an open-access regime mandates allocation of private property rights. In his classic narrative, the commons are depicted in a negative light:

1

Emerson (2003), p. 38. Midnight Notes Collective (1990), p. 9. 3 Mattei et al. describe the commons thus: 2

The term (without recognised legal definition, neither private nor public, and used interchangeably in singular and plural forms) is understood not as territorial organisation(s) but rather as resources and systems possessed by society as a whole; to expand this concept environmentally, Commons are commonly possessed resources and systems that together constitute the ecosystem within which humankind, all other forms of life, and the material world coexist . . . The Commons is a social, political, economic and intellectual concept; it is not about a piece of territory bordered politically or a pasture at the centre of a village, although, historically, it derives from them. Mattei et al. (2019), p. 231. See, eg, Mattei and Mancall (2019). 5 Hardin (1968). Today, Hardin’s argument persists in the climate crisis discourse in American law schools. See, eg, Farber and Carlson (2014), p. 21. 4

Meeting the Challenge of the Commons: An Emerging Field of Common. . .

3

they evoke the futility for a community to manage shared resources without concentrating decision-making power in a private owner or a central government—a Leviathan.6 Hardin’s commons, as described, represent the wasteful inefficiency of feudalism characterized by the forms of communal ownership studied by Paolo Grossi.7 This pessimistic vision dominated social and economic studies until 1990, when Elinor Ostrom published GOVERNING THE COMMONS, revealing her research results on resources managed by communities in different parts of the world.8 Awarded the Nobel Prize in Economic Sciences in 2009,9 Ostrom demonstrated that the commons is not necessarily a tragedy or a lawless locale. On the contrary, local communities generally define principles for their governing, and share resiliently to avert tragedy. Ostrom delineated a set of principles for checking if the commons were administered efficiently and could compete with both private and public arrangements for managing resources. Ostrom’s results challenged the dominant ideology in economic studies: she demonstrated that markets and their foundational institution—private property based on exclusion—are not the only efficient mechanisms for managing resources. This insight, when transposed into legal pedagogy, presented the possibility for reopening the debate on the legitimacy of private property.10 Legal scholars in different countries (especially in the United States and Italy, with the works of Carol Rose11 and the Rodotà Commission12) have also participated in the renaissance of commons study. On both sides of the Atlantic, the commons paves an innovative path, not necessarily linked to its medieval roots, for legal development. Along this path, we can imagine the commons as a challenge to property, both public and private: this requires us to investigate the impact of the commons on both public and private property law, the subject of this project.

A few years after Hardin’s article, William Ophuls wrote, “The carrying capacity of the commons is being reached, and one or another form of Leviathan is the inevitable consequence.” Ophuls (1973), p. 52. 7 See, eg, Grossi (1977, 2007). 8 Ostrom (1990). 9 See Ostrom (2009). 10 Davies (2012), p. 17. 11 See, eg, Rose (1986, 2011). 12 The Italian Ministry of Justice’s Rodotà Commission, established in 2007: 6

acted against the imbalance in the modern constitutional system that has effectively protected, and perhaps even overprotected, private property against expropriation but offered no judicial scrutiny of the opposite: the privatization of public property . . . The Rodotà Commission proposed a reform to the Civil Code that would clearly distinguish public property—i.e., property the state owns, can use, and can dispose of in pursuit of its fundamental sovereign or social functions—from commons property (beni comuni in Italian), which is not properly speaking a form of property owned by the state but its exact opposite: property to which access by the people (commoners) is guaranteed. Mattei and Mancall (2019), p. 735.

4

U. Mattei et al.

1.2

Ascent of the Commons in Italy

In Italy, the commons reëmerged in the context of a legal reform directed at modifying articles of the civil code devoted to public goods. In order to achieve this objective, the Italian Ministry of Justice created in 2007 a commission chaired by law scholar Stefano Rodotà. The motivation for the Rodotà Commission was the necessity of modifying rules on public domain, a category many legal scholars considered obsolete even at its 1942 codification due to its lineage from the Code Napoléon. Because of this obsolescence and blurred borders between commons and other forms of public property, a public good can easily pass from the public domain to alienable public property. The normative framework appeared inadequate to deal with the increase in privatizations of public goods and services,13 a neoliberal political and economic trend that affected Italy in a particularly strong way. Because, in the absence of any limiting legal principle, public assets valued more than €130 billion were privatized in the early Nineties, the Rodotà Commission proposed introducing a notion of the commons modifying the old taxonomy and granting to assets so classified strong protection against privatization: a rigid inalienability rule, a regime intended to protect the interests of future generations,14 and an open standing to sue in order to obtain injunctions of activities threatening the commons. Commons were defined as goods (including natural resources and cultural heritage) that produce utilities for the fulfillment of fundamental human rights and free development of human beings. It is evident that a legal scholar associates the commons with public property and, in particular, with the role of the public owner. In the era of privatizations, governments as well as local authorities have failed to defend their public property, so that in many countries public assets have been alienated without taking into consideration the concerns and resistance of the populace or the interests of future generations, outside of any justiciability or due process. Weak legal protection of public goods has facilitated this sort of political behavior as well as an imbalance between private property (strongly protected by the judicial process) and public property that can be transferred into private hands by political discretion. The first challenge of the commons concerns public property, aiming to give legal relevance to the difference between the so-called “State-community”, as the aggregate of citizens, and the “State-apparatus”, as the government bureaucracy. If the State is community, then its citizens with their rights and needs represent the focus of public action. If the State is merely apparatus, then the management of public goods 13

David Harvey equates privatization with enclosing the commons: The corporatization and privatization of hitherto public assets (like universities) to say nothing of the wave of privatization of water and other public utilities that has swept the world, constitute a new wave of ‘enclosing the commons’. As in the past, the power of the state is frequently used to force such processes through even against the popular will.

Harvey (2004), p. 75. 14 See, eg, Brown Weiss (1992).

Meeting the Challenge of the Commons: An Emerging Field of Common. . .

5

can concern itself with its own bureaucratic organization and needs (eg, appropriate budget allocations). In the proposal drafted by the Rodotà Commission, the legal concept of the commons was employed to introduce a new classification of public goods, limiting what the State apparatus could do as a consequence of the delegation of power by the people. According to the proposal, the State cannot sell the commons in its own interest (ie, in the interest of the apparatus) because the majority in office deciding a privatization process is just the State apparatus and therefore cannot claim to be representative of the whole State community (the common), which includes future generations that have an interest in the resources that are being sold. In its accompanying report on the proposed reform, the Rodotà Commission indicated that the commons could be public or private goods, thereby suggesting that the concept of commons could serve another function. This added function arises from the relationship between commons and fundamental rights: its main consequence is that the models of commons governance transcend the formal title of ownership. Concretely, the governance structure is the one that guarantees access to the commons and the right to use it. Although the idea of the commons, in the Italian legal debate, does not aim at abolishing private property, it does denounce the effects of unlimited accumulation15 of private capital made possible by unchained capitalism that emerged after the fall of the Berlin Wall. It is easy to understand this indictment by examining the international context. The Rodotà Commission was organized one year before the international subprime mortgage financial crisis; the effects of an unequal distribution of wealth could be appreciated everywhere by that time. Four years later, the Occupy Movement popularized the idea of the 99%. The commons—as a possible socio-political path of empowerment against the abuses of the 1%—suddenly entered the syntax of social movements worldwide.

1.3

Topicality of the Commons

Institutionally, the commons has become the tool of contestation of mainstream political and economic dogmas, including the unchallenged efficiency of markets 15

Marx describes accumulation of capital—in which the bourgeoisie is encouraged to save surplusvalue for reinvestment in further production and capital—thus: At the historical dawn of the capitalist mode of production . . . avarice, and the drive for selfenrichment, are the passions which are entirely predominant . . . Accumulate, accumulate! That is Moses and the prophets! ‘Industry furnishes the material which saving accumulates’ [per Adam Smith]. Therefore save, save, i.e. reconvert the greatest possible portion of surplus-value or surplus product into capital! Accumulation for the sake of accumulation, production for the sake of production: this was the formula in which classical economics expressed the historical mission of the bourgeoisie in the period of its domination.

Marx (1890), pp. 741–742.

6

U. Mattei et al.

and property rights in the allocation of resources. Within this critique,16 the dominant paradigm of property is an ideological shield for a biased law of the wealthy, because in a system where resources are finite their exclusive distribution through property rights results in the deprivation of non-owners. Research of new tools for managing resources has been realized in several projects at the local and urban level: scholars and practitioners used to define these experiences as “urban commons”.17 In contrast with the neoliberal vision, the commons aims at conceiving the proprietary relationship as qualitative rather than quantitative, based on access and inclusion rather than exclusion and deprivation. When private goods can be described as commons, access of non-owners must be protected and the owners’ right of exclusion must be limited by means of a balancing mechanism that allows redistribution of resources without expropriation.18 The value of the commons is enriched by access and participation; on the other hand, exclusion (for example by absentee owners or governments) often results in atrophy. This radically critical vision needed testing by the empirical reality of differing legal systems where the grammar of proprietary exclusion—as the default rule— appears dominant. The commons, a constituent force in the hands of activists, needs to penetrate the domain of positive law (achieved in Italy only superficially, because the proposal of the Rodotà Commission was abandoned) to counterbalance a strong resurgence of neoliberal policy across Europe. Such policy of proprietary exclusion has received a significant boost from the European Court of Human Rights, whose recent case law has restored private property to a sort of natural right, rejecting zealously any social function evolution.

For a debate on the meaning of “critique,” Werner Bonefeld evokes Mandel and Agnoli (1980). Bonefeld (2001), p. 53. 17 Urban commons are the subject of a research project coordinated by the University of Turin funded by the European Union’s Horizon 2020 program. This project, the Generative European Commons Living Lab, aims at mapping and studying European urban commons. It is led by Professor Alessandra Quarta. See gE.CO: tools for generating commons, (2019), https://bit.ly/2 rdSMQH (last visited 6 July 2022). 18 Marx describes expropriation thus: 16

Expropriation is the starting-point of the capitalist mode of production, whose goal is to carry it through to completion, and even in the last instance to expropriate all individuals from the means of production—which, with the development of social production, cease to be means and products of private production, and can only remain means of production in the hands of the associated producers, as their social property, just as they are their social product. But within the capitalist system itself, this expropriation takes the antithetical form of the appropriation of social property by a few; and credit gives these few ever more the character of simple adventurers. Marx (1894), p. 571.

Meeting the Challenge of the Commons: An Emerging Field of Common. . .

1.4

7

Comparative Projects on the Commons

In order to test this evolution, at the 2013 19th meeting of The Common Core of European Law Project,19 the group on property law chaired by Professor Antonio Gambaro launched a project on the commons that was entrusted to Ugo Mattei and to Swedish scholar Filippo Valguarnera, with the assistance of the then Director of Research at IUC and Saki Bailey (PhD candidate in comparative law at University of Gothenburg). Three subsequent meetings of the Common Core Group were convened to develop a comparative law Questionnaire (substantially reproduced in Part 2 of this General Report). In 2016, at the Paris Meeting of the Académie internationale de droit comparé (“AIDC”), a decision was taken to launch a commons project for the July 2018 Fukuoka General Congress, and the editorship was offered to Ugo Mattei. The opportunity was seized to reinvigorate a project that within the common core network appeared dormant (because of the difficulty of identifying a sufficient number of respondents with an approach broad enough to handle the Questionnaire). The new Director of Research at IUC and commons scholar and University of Turin faculty member Alessandra Quarta joined the team, and a first part of the Questionnaire was introduced ex novo and circulated in both English and French.

2 Structure and Sense of the Research 2.1

The Commons as the Challenge

Questionnaires are not neutral tools: the question asked determines the answer received. More than a half-century since establishment of the common core methodology by the late Professor Rudolf Schlesinger,20 twenty-five years of testing his hypothesis in European private law underscore this epistemological shortcoming that challenges any claim of neutrality in comparative law.21 While the framework of this Questionnaire derives from both the Italian experience and the background of the editors, it was thoroughly discussed with scholars of variegated legal backgrounds and contains elements that can be generalized and appreciated in a comparative legal study. The following must be appreciated in limine:

19

See Mattei et al. (2013). See Schlesinger (1957) and Schlesinger and Bonassies (1968). 21 See, eg, Bussani and Mattei (2012). 20

8

U. Mattei et al.

I. The concept/category of the commons is not foreign to global legal culture. In the past—and even today in rural areas, especially in the Global South—open fields, common pastures, and particular sorts of customary collective uses have been an institutional tradition. Moreover, debates surrounding the global commons in international law, as well as the rise of creative commons in the field of intellectual property law, represent a shared basis for grasping the essential features of the commons for the more general purpose of investigating their challenge to proprietary exclusion. The main characteristics of the commons are the following: • Commons are both material and immaterial goods requiring collective activity to be organized and cared for. Examples include natural resources (to be preserved for future generations), cultural patrimony, and traditional knowledge. • Commons demand special legal protection and management in a manner different from public or private property. This feature takes into consideration the role of the commons not only in human life (their relationship with fundamental rights) but also in the life of the commons per se, according to an ecological sensibility rendered urgent by the current environmental crisis. The commons prohibit exploitation of humans and of nature. • Access to commons must be ensured and guaranteed by law whenever exclusive forms of ownership produce distortions and inequalities. • Commons require a collectivity to care for them (community of care), whose size varies according to the nature of goods and the related circumstances. In some cases, a local community is optimal; on the other hand, global commons require global communities (which present complicated legal issues).22 II. Global neoliberal policies in the last quarter century and diffusion of privatization as a political and economic strategy to address the repercussions of the 2008 economic and financial crisis shine a light on a ubiquitous legal problem: the weakness of the institution of public property compared with private ownership. Such weakness is evident when we test the inalienability rule23— that in many countries is provided in civil codes or fundamental principles to David Harvey cautions, “What looks like a good way to resolve problems at one scale does not hold at another scale. Even worse, good solutions at one scale (say, the local) do not necessarily aggregate up, or cascade down, to make for good solutions at another scale (say, the global).” Harvey (2011), p. 102. 23 According to Calabresi and Melamed: 22

An entitlement is inalienable to the extent that its transfer is not permitted between a willing buyer and a willing seller. The state intervenes not only to determine who is initially entitled and to determine the compensation that must be paid if the entitlement is taken or destroyed, but also to forbid its sale under some or all circumstances . . . [R]ules of inalienability not only “protect” the entitlement; they may also be viewed as limiting or regulating the grant of the entitlement itself. Calabresi and Melamed (1972), pp. 1092–1093.

Meeting the Challenge of the Commons: An Emerging Field of Common. . .

9

protect public property—against the facility with which public goods are alienated or otherwise privatized outside of effective justiciability and without consideration of citizens’ opinions. III. The variable dynamic of exclusion and access in property law (both private and public) can be generalized and discussed comparatively. The role of the right to exclude in private property may be described in two different legal traditions: civil law and common law. In the civil law tradition, the right to exclude is sufficient to convene a compact idea of mine,24 which describes private property as the relationship between an owner and a material object.25 In the famous metaphor of property as a tree, we can imagine that the right to exclude is the trunk (the essence of ownership), while the branches represent other powers of the owner that can change and be mixed according to the legal and factual characteristics of the goods. According to this image, the right to exclude is always present; without it, the owner cannot exercise her other powers: the right to exclude becomes the necessary and sufficient condition for private property. In the common law tradition, by contrast, the metaphor of property as a bundle of sticks, building on the Hohfeldian fundamental legal relationships, views ownership as a set of rights, powers, privileges, and immunities (and corresponding duties and liabilities) among individuals and not between an individual and a material object. This metaphor does not convey a predominant position corresponding to the essence of property. The sticks are dynamic and they can be arranged in different ways and allocated to different individuals, so that the right to exclude does not claim a different status than the right to use or dispose. In the last thirty years, some American scholars have called into question this classic presentation, by stressing the centrality of the right to exclude in the bundle of rights.26 They present this as the essential prerogative to build proprietary relationships. This theoretical position has produced a rich debate among American legal scholars.27 This academic debate and the evolution of case law in the European

24

Marx writes: If I give up my private property to someone else, it ceases to be mine; it becomes something independent of me, lying outside my sphere, a thing external to me. Hence I alienate my private property. With regard to me, therefore, I turn it into alienated private property . . . It becomes alienated private property only if, while ceasing to be my private property, it on that account does not cease to be private property as such, that is to say, if it enters into the same relation to another man, apart from me, as that which it had to myself; in short, if it becomes the private property of another man.

Marx (1844), p. 218. This derives from both a certain interpretation of Roman law and the subjective right theorized by German scholars. 26 See, eg, Di Robilant (2013). 27 A group of scholars questions the adequacy of the right to exclude as the sole basis for resolving property conflicts or designing property institutions by demonstrating property law is a mix of different special values and limits to the powers of owners are essential to ensure societal welfare. See Alexander et al. (2009). 25

10

U. Mattei et al.

Court of Human Rights demonstrate a path of theoretical convergence in the field of property between civil and common law, both evolving into visions of property as exclusion determined to a large extent by neoliberal ideology. Thus, the limits of a paradigm of property reversed to a fundamental right to exclude others from something suggesting a comparative discussion around this fundamental power and its polar opposite: the fundamental right to access and be included (ie, the central feature in the discourse of the commons). This contrast between exclusion and access does not shed light on private property alone, and it is independent from the private or public nature of the title. The exclusion can be determined as much by an ordinance’s closing a square or a park as by a corporation’s closing a shopping mall or precluding certain individuals from accessing it.

2.2

Questionnaire

The Questionnaire was designed to collect international intelligence on the commons and their capacity to challenge public and private property, as to both their substance and binary claim to exhaust the horizon of legal possibilities. The commons challenge the zero-sum vision of public and private that characterizes the modern legal mind. It is not true that more public means less private and vice versa. The commons is a strong and vibrant third possibility in the law. In order to encourage the commons’s emergence from legal obscurity, the Questionnaire includes a first part (added to the one prepared for The Common Core of European Private Law Project) that follows the methodological guidelines of AIDC: we have composed open-ended questions intended to: • survey the understanding of the commons (Questions 1–3) • review the black letter law on public property and its adequacy to cover privatizations (Questions 4–6) • identify the role (and sanctity) of private property in national legal systems and the possibility to balance it with other constitutional rights: this should facilitate definition of the relationship between exclusion and access (Questions 7–8) The second part of the Questionnaire follows Professor Schlesinger’s methodology, according to which topical cases are hypothesized in order to formulate questions as neutrally as possible: to eliminate any biases resulting from the embeddedness of the drafters and the respondents in different legal traditions. The creation of common-core-style questions is a complex iterative process requiring multiple contacts among drafters and respondents. In the case of this particular Questionnaire, we encountered fewer difficulties than usual because the concept of the commons per se is generally absent in the law, thereby mitigating the embeddedness issue. On the other hand, as many attendees of our lengthy

Meeting the Challenge of the Commons: An Emerging Field of Common. . .

11

preparatory seminars opined, the large scope of the commons mandates interdisciplinary legal knowledge and skills that a single respondent rarely possesses. Moreover, it was difficult to frame the related issues in the adversarial manner typical of classic common core research. We maintained the pre-existing second part of the Questionnaire in order to limit the risk of receiving merely black letter legal answers, due to the elusiveness of the commons as a positive legal topic and its emergent nature. Even if fully aware of the limitations of reductionism (especially since commoning is more a coöperative than a competitive phenomenon), we strived to situate the commons in justiciable issues and conflicts between plaintiffs and defendants: in other words, in the structural mold of modern law. Hypothetical legal conflicts between the commons and property were already identified in the aftermath of the Rodotà Commission. Moreover, legal hypotheses on the commons had to be extracted from a concept that is particularly ambiguous in the international debate, where it is rarely deployed by lawyers and is accorded different meanings in different economic, social, and political studies. The factual approach permits investigation of the commons as an analytical category that includes ideas of access, participation in management, special protection for future generations, and linkage to fundamental human rights. It was important to throw a wide net without losing control of it. The cases in the second part of the Questionnaire concern disputes in housing, health care, food, water, natural resources, territory, culture, and climate. The aim is to identify principles, values, and rules that emerge in balancing the right to exclude with the right to be included, and to design a special sector of law governed by the principle of access and its consequential rules. When the base-case Questionnaire was completed, it was translated into French by a sophisticated legal scholar (Michele Spanò of the École des Hautes Études en Sciences Sociales) and circulated among respondents. The answers to these Questionnaires are analyzed in this General Report in order to define the common core of legislation, doctrine, and jurisprudential solutions in the field of the commons.

2.3

Legal Systems Covered

The Questionnaire was circulated to 20 potential respondents worldwide and generated answers from 13 of them: Belgium, Canada - Common Law, Croatia, Germany, Italy, the Netherlands, Quebec, Russia, Slovakia, South Africa, Spain, Sweden, and the United States. Additional reports were solicited from independent respondents as well as official ones selected by AIDC. This group was mixed with the correspondent group already active in The Common Core of European Private Law Project, and the respondents

12

U. Mattei et al.

met in Turin in July 2016 to discuss a first draft of the answers that the national reporters had submitted. This meeting was pivotal for sharing the objectives of the survey and understanding the role of the commons in the transformation of property, considering the different backgrounds of national reporters who are private law and public law scholars. Furthermore, the July 2016 Turin meeting yielded a new question for the Questionnaire: to investigate legal issues related to the climate crisis. Looking at the bigger picture, we obtained answers from the civil law (Belgium, Germany, Italy, the Netherlands, Quebec), the common law (Canada - Common Law,28 United States), former socialist law (Croatia and Russia), Scandinavian law (Sweden), and African law (South Africa). Unfortunately, we missed significant parts of the puzzle (eg, China, India, Indonesia, Islamic countries and Latin America).

2.4

Comparative Discussion

A comparative discussion involving 13 legal systems encounters the problem of defining a taxonomy to serve as a compass. We opted for a tri-partition according to the role and structure of private property: (1) six countries representing Europe, whose legal arrangements are historically rooted in feudalism and presently influenced by the European Convention on Human Rights (“ECHR”);29 in this group, Sweden is an outlier because it did not experience feudal relationships and, during that historical period, the distribution of property was not a political battleground; (2) three countries where socialist law shaped property law; and (3) four countries that experienced colonization; this political heritage is relevant because property law was imported from Europe and supplanted indigenous conceptions of the commons (such conceptions have, nevertheless, proven resilient and survive today).30 In this General Report, we structure sections according to the foregoing tri-partition. We present trends that emerge in each group. Evoking dialectics,31 we also comment on the bigger picture that our taxonomy paints.

28

After the Battle of Québec in 1759, Canada fell under English common law, except for Québec, which follows civil law. 29 European Court of Human Rights, European Convention on Human Rights 1–62 (2018), https:// bit.ly/388H8XY (last visited on 5 July 2022). 30 “The resistance of the indigenous people of the Americas to the continuing privatization of their lands and waters has given the struggle for the commons a new impulse.” Caffentzis and Federici (2014), p. i95. See also Greer (2012). 31 Dialectics, as a methodology, comprises three dimensions: the philosophy of internal relations, the process of abstraction, and the dialectical laws. See, eg, Ollman (2003), Ollman and Smith (2008), and Ollman (2019).

Meeting the Challenge of the Commons: An Emerging Field of Common. . .

13

3 Open Questions 3.1

Understanding the Commons

This section is composed of four questions aiming to investigate the presence of a legal category for the commons or, otherwise, the existence of concepts or rules corresponding to it. Question 1 investigates the presence of legal categories that correspond to the notion of the commons as described in the Introduction or in text composed by reporters. In order to answer Question 1, reporters focused on certain elements of the definition and identified categories that correspond to the commons. This interpretative strategy emerges in substantially all reports; it is renounced, however, in the report of the United States, where the concept of “analytic commons” is introduced and proposed. The U.S. description provided by Professor Monica Eppinger does not limit itself to the objective dimension, describing the commons as a particular material or immaterial resource; rather, it sheds light on the role of communities (commoning), position of the commons outside the realm of the market, social rules, customs, and institutional arrangements that can be introduced to govern the commons beyond traditional public or private structures. Although these elements do not constitute a legal definition, they can be discerned in existing legal categories.32 The reporters from the continental European legal systems find characteristics of the commons in goods belonging to state apparatuses; these are based mainly on two elements: (i) the inalienability rule established for public goods included in the public domain and (ii) their common usage. Belgium defines territory and natural resources as “common heritage”, a concept through which it can highlight the centrality of small or large communities. In Belgium, common heritage can benefit any kind of community, such as the inhabitants of a region or humankind as a whole. No precise remedy follows from this statement, so that a formal or informal community is not provided special status to protect common heritage. Germany also pays attention to a global community. Indeed, the reference to future generations in the field of protection and management of public resources has been introduced in the Basic Law. In Italy, the public domain shares elements with the description of the commons, but the reporter describes contradictions and ambiguities in the Italian legal system. In some cases, for example, the interests of present and future generations are able to define a special regime of protection for public goods, while in other cases the exchange value of public goods obscures their use value and authorizes their transfer, by introducing an exception to the inalienability rule.

32

Among these listed in the U.S. report are worker cooperatives, community gardens, conservation trusts, parks, air space, elder care housing, and Native American reservations.

14

U. Mattei et al.

In Belgium and Italy the codification of law was influenced by the Code Napoléon. It is not surprising, therefore, that the theory of public property in these countries mirrors the traditional French classification of public property. In particular, the concept of public domain, in spite of its weakness in protecting common resources from government-determined privatization, continues to be intended as a patrimony that belongs to the citizens (State-community) and, in this sense, it is common and only managed by public entities (State-apparatuses) in their interest. Another legal category that Belgium and the Netherlands (as well as Russia) identify as corresponding to the idea of the commons is that of cultural heritage. This concept derives from the influence of United Nations treaties and these European legal systems utilize it to define the cultural patrimony that must be preserved and maintained in the interest of future generations. Sweden identifies legal institutions that correspond to the commons in those goods managed by small communities, villages, and in the allemansrätt.33 We conclude that for lawyers of the continental European legal systems public property covers the commons, stressing its management in the interest of a community and its common usage. It is intriguing to link Question 1 answers to those of Questions 3 and 5, in order to identify the correspondence between such vision of black letter law to political choices that inspire the management of public property. The report of Belgium raises the possibility of exclusion in the management of cultural heritage. According to a decision of the Council of State, no claim of exclusivity is admitted in the management of goods that are included in this category. This clarification avoids the risk of a closed management of the commons, a hypothesis that can occur not only when property rights are distributed but also when a specific community is involved in the management. The correspondence between commons and public property emerges also in the reports from Croatia and Russia. The Croatian report remarks about the classification of public goods, but clarifications would be necessary to distinguish common goods from things in public use or in common use. In the Russian constitution, we find a reference to the “all people domain”, a concept that derives from the former Soviet constitution and now indicates natural territories. In the Russian report, the regulation of private things that belong to cultural heritage introduces the idea that even private goods can be considered as commons; furthermore, this special regulation introduces limits in order to ensure access to non-owners. The reporters of Canada - Common Law, South Africa, and the United States consider as commons the legal tradition of indigenous people: their solutions for managing the lands and related customs prevalent before the conquest by European countries. The commons are generally connected with past conflicts (in the report of United States, for example, the commons are associated with genocide) or recent disputes around Aboriginal titles (eg, Canada). In the report on Quebec, we find the category of choses communes—that appears in both the Code Napoléon and Belgian

33 Allemansrätt—the right of public access—affords the right to roam the countryside, including (subject to certain restrictions) on private land.

Meeting the Challenge of the Commons: An Emerging Field of Common. . .

15

civil code, but not in the Italian civil code—defined as things that cannot be owned, like air or water. The reporters for Quebec describe the doctrine of affectation, which permits linkage of private and public goods to a special purpose or destination, and affirm that this legal category is opposed to the idea of appropriation, because it introduces powers over things and not subjective and exclusive rights.

3.2

Past and Present of the Commons

Question 2 was whether the commons exist in the respective current legal systems or have existed in the past; in case of the affirmative answer, the reporters were asked to describe the origins of this concept, be they jurisprudential, doctrinal, or statutory. Considering the commons as resources that cannot be objects of appropriation, only Belgium and Quebec have in their civil code a similar definition (although there is only a partial correspondence to the definition provided in our introduction to this General Report). In Italy, there is no statutory definition of the commons because the proposal of the Rodotà Commission failed. In the past, the idea of the commons was represented by the notion of usi civici, a legal concept retained from medieval communal traditions of access to forest resources that continue to exist, especially in regional regulation. The Italian reporters mention decision n. 3665/2011 of the Corte di Cassazione, where the judges applied for the first time the concept of the commons as proposed by the Rodotà Commission in order to indicate the necessity to increase the protection of public goods that are strictly connected with constitutional values. Although this statement is only an obiter dictum in the decision, it has been widely commented on by scholars as evidence of a dialogue between doctrine and jurisprudence that stems from the inadequacy of the legal notion of public domain to protect the commons against unprincipled privatization. In continental European legal systems, therefore, the concept of the commons is presently absent as a legal category, although it was generally present in the past as collective ownership or shared rights of access to natural resources (as in the surviving Italian notion of usi civici). In Germany, the institution of allmende indicated lands used by local communities, a notion extended to the territory that corresponds to “the area constituting Germany”. This statement shows how the commons generally disappear because of a process of nationalization and statebuilding that transforms them into public property belonging to the State or divides and assigns them to private owners. The German reporter explains that the disappearance of allmende is generally due to the evolution of agriculture (requiring land enclosure in order to facilitate intensive cultivation) and transformation of communities into municipalities. The process of enclosure is well documented in the origins of capitalism, and this resilient concept presented in the German report is similar to the Swedish allmänning, a recessive model. In the Dutch report, we do not find any reference to the commons, so we do not know if they existed in the past (and in particular during the feudal period). The

16

U. Mattei et al.

reporter points out that there is a doctrinal debate over the nature of those goods that perform a public function and, in particular, the possibility to put them extra commercium. In the former socialist legal orders, the reporters highlight the element of community in the idea of the commons. The Croatian report identifies the collective ownership that existed until 1990 as ancestor of the commons, while the Russian report covers a longer historical period. Although the mir (assembly) is similar to the notion of usi civici and other forms of medieval communal property, in the pre-Soviet period forms of public servitudes called rights of common participation presented legal solutions for giving public access or introducing a mandatory passage. This reference is probably provided starting from the element of access that characterizes the analytical concept of the commons. In the Soviet era, all the lands and natural resources comprised the category of all-people domain: they were not privately owned, but managed and protected by the State. At the end of such era, the all-people domain was declared public (belonging to the State assets) and open to a process of privatization. No information on this topic is provided in the report from Slovakia. In the South African legal order, despite the absence of a uniform definition of the commons, this concept is well known in different fields: (1) the Roman Dutch tradition consigns to modernity the idea of res communes; (2) in the indigenous law, land is shared and cultivated by communities and no boundary exists; and (3) commonage properties indicate those things that belong to municipalities and are devoted to the free use of inhabitants for grazing or other agricultural purpose; commonage property is certainly a form of public property, but it can be sculpted according to the needs of the inhabitants and, in particular, the “plight of the poor.” The United States report informs that commons were present in the culture of peoples native to the Americas: common lands and their sets of relationships and traditional knowledge were erased by the colonization and the introduction of private property. Indigenous people were expropriated and killed, so the history of the commons in the United States corresponds to that of genocide. The conquest of America is linked with the terra nullius doctrine that was formulated in order to posit European conquerors as the original owners of lands. The conflict between commons and public/sovereignty has been confirmed recently by political negotiations to allow indigenous people to obtain small parts of lands in which to constitute tribal reservations and Indian Nations. No reference to the colonial period is included in the Canadian report, even though colonization followed the same pattern of land plunder supported by natural-law ideology as in the United States. On the contrary, the reporter from Quebec claims there were no commons in the past, notwithstanding France, its colonial power, manifested that kind of arrangement during the feudal period. The area of Quebec was conceived as a place of pure exploitation, so all special rights created by indigenous people before the colonization were abolished. These comprised forms of rights to use and temporary possessions (droits d’usufruits pour l’utilisation et l’occupation). Thus, in spite of nominal differences, the pattern of free exploitation of what was deemed a terra nullius seems confirmed.

Meeting the Challenge of the Commons: An Emerging Field of Common. . .

3.3

17

Academic Debates on the Commons

Question 3 addresses the state of the academic debate on the commons: does it exist at all? The Quebec and Slovakia reporters declare the complete absence of academic debate on the commons. All other reports present academic debates that are either directly connected with the category of the commons or develop a critique to public property in accordance with the effects of privatization (eg, Croatia, Germany, the Netherlands, and Russia). An academic debate devoted to the commons as new legal category is present in Belgium, generated by the process of revision of the civil code. A December 2017 proposal suggests the introduction and regulation of res communes. The Belgian report does not explain the relationship between this new category and the already existing rule about choses communes, but the magnitude of the reform seems appears to address the ecological crisis. The reporter of South Africa affirms that an academic debate around commons is gaining momentum focused on defining and conforming a precise content of the commons. Similarly, there is a nascent academic debate in Sweden connecting allemansrätten with the idea of the commons. Furthermore, the idea of creative commons is developing in the domain of intellectual property. In Germany, the academic debate among lawyers is focused on creative commons and global commons. In the United States, the academic debate around the commons follows two main lines of work. The first is dedicated to the collective action problems that commons produce. This approach remains linked with the argument of the tragedy of the commons. A second line concerns the public trust doctrine and its relevance for the protection of natural resources. The same lines of work characterize the academic debate in Canada, which start from C.B. Macpherson34 and follow the arguments of Ostrom, Rose, and Joseph Sax.35

3.4

Comparative Analysis

The Questionnaire answers facilitate the highlighting of elements shared by the majority of the legal systems investigated. In the absence of a precise legal definition of the commons, reporters identify public property as its most analogous institution. They are generally aware of the limits to this definition, and they mine new concepts for the meaning of the commons. Cultural heritage, for example, is characterized by a focus on future generations; no special remedy, however, is provided for protecting future generations against the infringement of their interest in preservation. Another 34 35

See Macpherson (1999). See, eg, Sax (1970, 1980, 2011).

18

U. Mattei et al.

limitation, which emerged from answers to Question 3, is the tension between the rule of inalienability and the law in action, permitting the political and economic practice of privatization. All the investigated legal systems show sensitivity for those goods that are connected with the fulfillment of constitutional rights, even if this link is not always explicit. In those countries in which constitutional rights influence the legal protection of public goods, we find additional rules to allow access to non-owners and special duties of preservation and maintenance. The most interesting feedback on the international evolution of the commons concerns their relationship with public property: the majority of legal systems evidence how the disappearance of the commons depends on the expansion of public sovereignty. In many reports, the idea that commons can be held with private titles is admitted and the conciliation between common and private interests is ensured through special limits to the powers of the owners. Sensitivity for the commons is diffused, even if it is easier for reporters to discuss the different forms that can be grouped under this category rather than attempting a fully fledged theoretical reconstruction of the notion. The challenge that the commons bring to property seems clearer in the field of public domain than in private property. The different patterns of the academic debates show how difficult it is for legal scholars to discuss legal institutions in the absence of black letter law: a statute or rule based on case law. Nevertheless, the legal debate is able both to gather the ideas presented by economic, political, and sociological studies and synthesize them in an original manner.

3.5

Protection of Public Property Beyond the Law on the Books

This section of the Questionnaire is dedicated to investigating public property and the relationship between commons and public institutions. Question 4 aims at understanding how the inalienability rule works in different legal systems. In particular, it explores whether such rule is an absolute or relative condition. This analysis seeks to gauge the necessity to provide stronger legal protection for the commons, as proposed by the Rodotà Commission. Questions 5 and 6 address privatization of the commons and their nationalization. The idea is to investigate the process through which commons are transformed into private or into public ownership. This latter aspect was introduced after the meeting of July 2016, during which Professor Ghangua Liu evidenced the necessity of including the hypothesis of nationalization for covering those situations in which goods that belong to communities are transferred forcefully to the State. This

Meeting the Challenge of the Commons: An Emerging Field of Common. . .

19

question probably did not achieve this objective, considering that all reporters (except Germany and Italy) considered nationalization equivalent to expropriation.

3.6

Inalienability of Public Goods

The answers to Question 4 about absolute inalienability of public property illuminate the weakness of this provision. The majority of reports demonstrate that relative inalienability is the rule, while the absolute prohibition to sell public goods is merely an exception. A consistent theme does not emerge, since the circumstances and the kind of absolute inalienability is variable across the legal systems. Germany identifies things that are absolutely inalienable in its constitution: motorways, highways, and railways are included in this category, as well as the enterprises that can help the German Federation in their management. The inalienability, in other words, covers the ownership of the public asset and its management, introducing a mechanism for avoiding the inversion of the substantial and formal ownership that occurs when the public good continues to belong to a public entity while management is delegated to a private enterprise with a long-term lease or concession. The possibility to control long-term the management of a public resource generally confers the kind of asymmetrical information and power that renders the manager the effective owner. Beyond the case of Germany, only the Netherlands among the continental European legal systems recognizes absolute inalienability for the territorial sea and the Wadden Sea. The Swedish legal system allows the government to dispose of public assets, but immovable properties cannot be alienated if they are required for the functioning of the State and their value exceeds 75 million krona (~ US$8 million). In the reporting continental European legal systems, the decision to alienate public assets can be taken by the government: only in Sweden is a parliamentary authorization needed to sell high value immovable properties. In Russia and Croatia, the inalienability of public goods is relative, since leases and concessions to private entities can be introduced. The Croatian reporter indicates the maritime domain is absolutely inalienable, as well as public goods in common use, forests, and forest lands. In Russia, the absolute inalienability covers only military assets, while the market system is generally extended to public goods, sometimes applying a market-oriented interpretation to the constitution. This is the case according to which properties of common use such as land, water objects, and natural resources are managed and cared jointly by the Federal Powers and the Subjects of the Russian Federation. In 2014, the Supreme Commercial Court held that this statement does not imply an exemption for these goods from the possibility of being alienated as it does not establish an exclusive public status for them. In the post-colonial legal systems, we generally find statements of absolute inalienability. In the United States, navigable waters, parks, and monuments are inalienable, while other federal public assets can be the objects of leases or concessions. A special category of inalienable assets derives from the indigenous tradition:

20

U. Mattei et al.

Native American things defined as cultural patrimony (as well as sacred or funerary objects) are not alienable. In Canada, only the beds of the sea and tidal waters are inalienable; an original case of inalienability concerns the right to fish, which cannot be assigned in exclusive forms. In Quebec, the rule is that public assets can be alienated and no exception exists; special authorizations are required to alienate some natural goods.

3.7

Remedies Against Privatizations

Question 5 requires reporters to analyze those remedies through which a legal reaction to privatization is possible; privatization is not defined, but the nature and the objective of this act have been discussed above: it is the alienation of public assets to private entities or the transformation of a public enterprise into a private one. Privatizations can be executed at different levels of government, because every public owner (State, State-subdivision, or local authority) can alienate public assets. This question represents the natural continuation of Question 4, because the alienation of public assets is generally admitted as a rule in the majority of the legal systems interviewed. In many legal systems, privatizations can be resisted in court; in fact, only the Canadian report excludes legal actions and considers possible only political opposition to this sort of public decision. Other reports highlight remedies in the field of public law such as special referendum to stop privatization and civil or administrative actions to challenge in court the decision of public authorities. Germany reports the opportunity of local referendum to challenge privatizations at the Lander level, whose effects are able to protect public properties. A referendum can concern the repurchase of privatized state property, as in the case of the gas supply system in the Land Hamburg, privatized and then repurchased by the local authority after a winning citizens’ initiative. In Italy, national referendum can be promoted to abolish national laws that have privatized public services or assets, as occurred in 2011 with the referendum against the water supply system. This kind of democratic tool, however, differs from the German local initiative because the Italian one can only produce an abrogative effect, while no mandatory purposeful effect is admitted. The decision to privatize can be challenged in court in many countries and national reporters provide examples of possible remedies. However, the answers raise at least two problematic issues. First, the essential problem is the qualification of locus standi to challenge the privatization; second, when the remedies are admitted, they are generally individual rather than collective actions. It is generally the case that only environmental associations—who can represent an interest diffused in the collectivity—may challenge those acts threatening environmental damage. The reports highlight this procedural complication and many reporters try to imagine a national remedy or doctrine that could be applied to challenge privatizations; however, real cases and jurisprudential decisions are not so inclined.

Meeting the Challenge of the Commons: An Emerging Field of Common. . .

21

The Belgian reporters argue the privatization of public goods can be challenged through two remedies. The first consists of a legal action before an administrative court promoted by an environmental association in those cases where a privatization might be (injunction), or has been (ex post remedy), able to produce an environmental damage. The second strategy consists of applying the standstill doctrine, according to which anyone can take legal action against a public entity if the privatization risks diminishing the levels of protection already acquired under the constitution. This legal itinerary is followed similarly by the Swedish system, where an individual action can be taken against the decisions of the government that affect one of the fundamental rights protected by the ECHR or by the Aarhus Convention.36 The concrete infringement must be proved in the judicial process, so that the plaintiff’s standing is complicated to demonstrate. In Italy, the Netherlands, and Slovakia, administrative actions can be taken against the public measure that establishes the privatization through the ordinary means of judicial review. This implies it is virtually impossible to argue against the merits of the provision, which is generally left to the discretion of the public authority. On the contrary, the administrative procedure can be challenged on the usual formal grounds (violation of law, lack of jurisdiction, excess of power). The difficulty for a plaintiff’s having locus standi is described in the German report, where the infringement of an individual right caused by the decision to privatize a local public Christmas market was able to overwhelm the whole privatization scheme. The Federal Administrative Court held that the privatization of the Christmas market constituted a violation of the guarantee that certain municipal affairs had to be self-governed by the municipality, since the decision to privatize prohibited the municipality from influencing the private organizers. In Russia, privatization can be nullified by an action taken by the public prosecutor or the Federal agency in those cases in which the public decision has been adopted against the law. This is an example of reaction against privatization of public properties that are absolutely inalienable. It is a procedural control that remains within the administrative circuit. In fact, private persons cannot claim for the nullification of a privatization but they can always file their complaint to the public prosecutor, asking her to take legal action. However, the Russia report does not expand on this legal tactic; in particular, we wonder whether the private persons must have a specific and current interest to file their complaint or, similarly, whether it is mandatory for the public prosecutor to take legal action after receiving a private complaint. In the United States, the cases of both privatization and nationalization are addressed by the regulation of expropriation. Similarly, the legal system of Quebec 36

See Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters, United Nations Economic Commission for Europe 1–25 (1998), https://bit.ly/2saFiVN (last visited on 5 July 2022). There are 47 parties to such convention, including the following covered by the Questionnaire: Belgium, Croatia, Germany, Hungary, Italy, Netherlands, Slovakia, Sweden, and the United Kingdom.

22

U. Mattei et al.

does not foresee any remedy against privatization (the Québécois reporters mention the example of the State’s expropriating lands that belong to indigenous nations in order to build a pipeline). The procedure permits opposition to a project and the organization of public debates to discuss the reasons of the resistance.

3.8

Remedies for Nationalization of the Commons

Question 6 explores remedies for the nationalization of the commons (ie, their transformation into public properties). All the participating legal systems have responded to this question assuming that nationalization requires the expropriation of private properties for a public purpose. There are many procedural and judicial similarities: expropriation is typically characterized by elements of the public interest and compensation for the privation of private property. The decision to nationalize can be challenged on procedural grounds before administrative courts; the amount of compensation can be litigated before civil courts. Beside the case of full expropriation, some legal systems feature expropriative measures that consist of the application of limits to property rights in order to achieve a public purpose. Thus, there is no privation of the good (generally, land); in Germany, this solution implies that compensation depends on the extension of the interference. Russia is the only legal system where expropriation assumes a punitive function: the State may acquire private properties when the owner carries out improper uses or infringes the boundaries of zoning or other land categories. In this former socialist legal system, expropriation can be challenged by collective action. The United States is the only country where expropriation can be applied to achieve a public purpose that is carried out by a private entity. The reporter cites Kelo v. City of New London: a state’s use of eminent domain to condemn property from private individuals and redistribute it to other private individuals constitutes a “public use” under the Fifth Amendment if it is rationally related to a conceivable public purpose. Excluding those answers in which the remedies against nationalization coincide with those provided for expropriation, Germany, Italy, and Quebec present original institutions. In Germany and Italy, the answers do not concern remedies against nationalization but the special hypothesis of nationalization, which does not coincide with a generic expropriation of private properties. The German constitution regulates—besides traditional expropriation—“socialization”, the transfer of land, natural resources, and means of production to the state; this forced transfer is followed by payment of compensation. (Because no socialization has ever been carried out we cannot understand the situations in which this institution is applied or its political consequences.) Similarly, the Italian constitution provides that enterprises that deliver essential public services or are monopolies and are able to fulfill a preeminent public and general interest can be nationalized and transferred to the State, public entities, or communities of users or workers. This rule is advanced,

Meeting the Challenge of the Commons: An Emerging Field of Common. . .

23

because we find not only traditional nationalizations but also transfers to formal or informal communities. As in Germany, Italy provides compensation. On the other hand, Costa v ENEL (1964) established the primacy of European Union law (then Community law) over the laws of its member states.37 The rule has never been applied to transfer productive assets to communities.

3.9

Comparative Remarks

Analysis of these answers highlights how existing remedies and doctrines could be interpreted and applied to resist privatizations. This is the only available solution in most reporting legal systems; only Russia has a special action for such litigation. Despite such a specific institution, the action promoted by the public prosecutor or the federal agency in Russia does not permit participation of inhabitants and maintain the remedy within a public or administrative circuit. Similarly, as emerges in the Russian report, only procedural errors are relevant: the merits are not objectives of the legal debate. Moreover, these actions are ex post remedies intervening after completion of the privatization. In Russia, privatization can be cancelled only if the public act can be nullified for the infringement of a mandatory rule. Considering the tools, rules, and doctrines that can be adapted to challenge privatizations, the constitutional argument is the most influential one. In Belgium and Sweden (here, the reference is to ECHR and the Aarhus Convention), the infringement of fundamental rights or the diminishing of the level of protection already acquired represent two important arguments; similarly, the reporters of Quebec state that Loi Constitutionnelle of 1982, by introducing a legal standard for the Canadian federal government in the provision of public services, could be used to challenge privatizations (although there are no examples). All the reporting legal systems share the problem of locus standi: according to the definition of legal standing, it is almost impossible to demonstrate that privatization infringes an individual subjective right or a relevant interest. Furthermore, no collective remedy allows individual inhabitants to take a legal action and only environmental associations can apply for representing a collective or diffused interest. This solution is restrictive: it introduces a subjective (single private persons and informal communities are excluded) as well as objective limit (only environmental damages can be claimed). We conclude that the protection of the commons is insufficient; it is limited both by standing to sue and absence of remedy to claim in the interests of future generations.

37 See Court of Justice of the European Communities, Costa v ENEL, 6/64 587–600 (1964), https:// bit.ly/2Yxx9Hg (last visited Dec 9, 2019).

24

3.10

U. Mattei et al.

Private Property and the Commons

Questions 7 and 8 investigate the fundamental laws concerning property rights, by exploring whether private property is considered a fundamental right as well as other subjective positions against which it can be balanced. Answers should convey understanding of the flexibility of property rights and their potential for modification after a proportionality test. Property rights can clash with rights of housing, health, and protection of the environment, as the hypothetical cases in Part 2 of this Questionnaire demonstrate. In these situations, there is a conflict between an owner and a non-owner/possessor or a conflict between the protection of property rights and a diffused interest. As explained in the introduction, the category of the commons is often used to signify the necessity to redistribute resources: for this reason, the flexibility of private property is essential to balance different interests. With Question 8, we analyze the role of exclusion and access, their conflicts, and the concrete possibilities to balance them. The right to access and the perspective of inclusion find their first representation in the technicalities of the rules of private property: we want to arrange these elements in order to describe a complete microsystem of access to property.

3.11

Private Property and Constitutional Protection

In the reporting continental European legal systems, private property presents varied and original constitutional definitions. In these countries, Article 1 of ECHR Protocol 1 considers private possessions as a fundamental right, affecting jurisprudential decisions of those countries where private property does not have the standing of a fundamental human right (eg, Italy and Sweden). In Germany, Belgium, and the Netherlands, private property is considered a fundamental right but this status (though limited by the social function clause) is explicitly declared only in Germany; the other two countries derive it from constitutional law. The Belgian and Dutch definitions refer to expropriation and, by so doing, introduce a negative guarantee that confirms the fundamental status of this right. Nevertheless, balances are possible, even if these constitutional definitions do not include a social function of property as in Italy, Croatia, and Germany. In Belgium, through a balancing test based on a control of proportionality, the protection of environment, or cultural heritage, urban law or the right to housing could defeat private property. Similarly, in the Netherlands the right to health can limit property rights, as a decision of the Dutch Supreme Court declared in 1991. Compensation can be provided to the owner who suffers limitations, according to the intensity of the interference. In the German constitution, private property is a fundamental right but it is not absolute, so the balancing with other rights is possible. In the German legal system, private property is always defeated by the necessity to protect human dignity.

Meeting the Challenge of the Commons: An Emerging Field of Common. . .

25

In Italy, private property is included among social and economic rights and is characterized by the provision of its social function and the idea of accessibility; a balancing test is admitted when there is a clash between property rights and the right to health, human dignity, or the environment. In the Italian legal system, the impact of the conception included in the ECHR has been significant, in particular in the field of occupazione acquisitiva, a special case of expropriation that occurs before the adoption of related public decree. Compensation of the sacrificed private property has been fixed at the market value after several decisions of the European Court of Human Rights that condemned Italy for the infringement of Article 1, Protocol 1 of the ECHR, thereby forcing the Constitutional Court to abandon its previous case law that accepted statutory limits to the amount of compensation as practical applications of the “social function clause”. The most original conception of private property is reported in Sweden, where a precise definition does not exist. This conception evolved from a history during which ownership and the redistribution of lands have never been the battleground of political conflicts, probably because of the low population density, the absence of feudalism, and the presence of peasants’ representatives in the Parliament. Swedish legal scholars do not debate the abstract idea of property: their approach is one of legal realism: they prefer to analyze concrete and specific problems. According to this approach, the 1809 Swedish constitution forbade the executive branch to deprive a citizen of her property without a lawful judgement; the element of compensation, however, was not introduced until 1974. Since 1976, private property is a fundamental right. This change, however, has not caused any interpretative innovation. The impact of ECHR case law has been particularly problematic for the Swedish legal order, because it emboldened the political supporters of a strict definition and protection of private ownership. In 1994 a constitutional amendment introduced the limit of public interest to deprive private owners, while in 2011 a new legal reform stated that anyone—including non-Swedish citizens—if expropriated can obtain full compensation for the taking in the amount of the market value plus a standard increment. Nevertheless, in 1994 the allemansrätt was introduced as an autonomous right, so it is not conceived as a limitation to private property. In South Africa and in the United States property rights are limited by the guarantees against racial discrimination. These formalizes equality in certain legal conflicts with private property. This arrangement inspires the US public accommodation doctrine, according to which the owner of a public accommodation cannot exclude people in an arbitrary or discriminatory manner. In Canada, private property is not a constitutional right; a balancing test appears to be admitted (but this is not clear in the report). In Quebec, private property is regulated by the Charte Québécoise as a fundamental right, but limits are possible to protect the environment or to introduce zoning laws. In the reporting former socialist legal systems, private property is a constitutional right. In Croatia, private property is classified among the economic, social, and cultural rights, and a duty to contribute to the general welfare is established for owners or users. In Russia, private property represents a fundamental right and the balancing test is possible: the human right to a place to stay prevails in a clash with

26

U. Mattei et al.

property rights. No information on this issue is provided by the Slovak report, so we only know that private property has a constitutional definition.

3.12

Exclusion and Access in Property Law

The limits to the right to exclude justified by a non-owner’s right to access present a homogeneous classification in the 15 legal systems analyzed. In particular, limits can be voluntary (accepted and introduced by the owner) or mandatory (established by law). The first case does not represent a true limit to the right to exclude, merely one of the ways the owner can exercise it: she can exclude others or she can permit their access. Into this category fall voluntary servitudes that are regulated in Belgium, Germany, Italy, Croatia, Russia, South Africa, the United States, and Quebec. In many countries, the right to transit on private lands for having access to a public road is generally conceived as public servitude, so its creation is mandatory for the owner who has the right to obtain compensation. This case is included in the second group of limits to the right to exclude: these are situations in which the owner must suffer the access of the non-owner. In the Netherlands, Italy, and Croatia, the non-owner has the right to access private property when she must carry out restorations to her own property. In this category of limits, we can include the installation of conduits (gas, water, Internet, etc.) that cannot belong to the owner of the building or land on which it stands. This hypothesis is regulated in Croatia, where the owner who suffers the installation must obtain a fee when conduits are private or compensation when conduits are public, and in Russia (conducts are defined linear objects), where conflicts between owners can break out. In Germany, Italy, the Netherlands, and (in some sense) South Africa, access of non-owners must be suffered by the owner in a state of necessity, an emergency situation. In the German civil code, this provision appears after the definition of private property, so that the relationship rule/exception (exclusion/access) is clear. In the Italian civil code, however, the state of necessity is regulated in the sections dedicated to tort law, because it limits payment of compensation. In the Netherlands, the infringement of private property for access must be tolerated when it serves a public interest of great importance; no example, however, is provided by the reporter. In the group of limits established by law, several provisions concern access to nature. The most articulated institution is the Swedish allemansrätt; in Italy, Slovakia, and Canada (Nova Scotia), this is an exceptional feature without strong protection.

Meeting the Challenge of the Commons: An Emerging Field of Common. . .

3.13

27

Comparative Remarks

The answers Questions 7 and 8 illustrate that private property can be balanced and limited despite its nature as a fundamental right. In other words, private property is not an absolute right and limits do not represent an exception but rather a physiological functioning in a relational context. We do not, however, have sufficient information to describe the way in which the balancing test is performed, whether the law leaves it open to judicial discretion or attempts to regulate it. In the Netherlands, it is based on a proportionality judgment; except for this specification, no detail is provided. The right to health, human dignity, housing, and protection of the environment can prevail on private property in all legal systems surveyed, as the solutions to factual cases will demonstrate. Among the limits to property rights, those interferences that concern the right to exclude are quite diffused, even if access does not represent a legal notion per se. We find this in the Italian constitution (which provides that it is the social function of property to make it accessible to everybody) and in the South African bill of rights (where sections are devoted to access to land or natural resources). In this recent constitution, access is employed also outside the field of property law and generally refers to the possibility of enjoying rights or public services. Access against the will of the owner is admitted only in particular situations: some of them are legal, such as access to a public road or to forests; others are generated by an unlawful act, an infringement of private property that is exceptionally admitted such as in the state of necessity doctrine. Combining the results of Questions 7 and 8, we conclude that the protection of fundamental rights can theoretically determine limits to the right to exclude: answers to the factual questions should demonstrate how the balancing test works in practice.

4 Conflicts and Cases 4.1

Introduction

The factual questions were designed to elicit concrete descriptions of solutions to the following disputes: • conflicts between owners and unlawful possessors who infringe property rights in order to exercise constitutional rights. The abandonment of property is a recurring theme, because our objective is to understand the tension between a dynamic and altruistic behavior of the possessor (commoning) with a rent-seeking passive attitude of the owner. Such conflicts may be solved by understanding the material

28

U. Mattei et al.

interest of the owner to exclude others when she has no use-value,38 in order to balance the actual use by possessors with possible future projects of the owner (including extraction of rent). The objective of this part of the Questionnaire is to understand how the balance test can work concretely when private property clashes with rights to housing, health care, food, access nature, and cultural production.39 The results of these questions will be analyzed in the same section because they together offer a complete picture of the legal and judicial possibilities to balance property rights. • conflicts surrounding access to water, analyzed in rural and urban contexts.40 The first case, a conflict between villagers and a private corporation, aims to understand the role of the principle of prior use in the management of water sources (in particular when a subject uses them for fundamental and basic needs versus commercial purposes). The second case presents a conflict between users of the water supply system and the corporation managing the service. The dispute arises from a large increase in the price of water. After failing to pay their third bill, users suffer disconnection from the water supply, so they are not able to access this fundamental resource. In this case, the dispute opposes the detachment for lateness in the payments—that is generally mentioned in water supply contracts—and the fundamental human right to water that in an urban context can be fulfilled only through access to the industrial service. • two other conflicts: the development of a mine that risks polluting the territory (Question 7) and protection of climate in the interest of future generations (Question 9). The latter combines elements from the Volkswagen emissions scandal41 and the Urgenda case,42 in which an association sued the Dutch government for its insufficient engagement in the protection of the environment and climate. The solutions of these cases focus on individual and collective remedies to protect the commons in the interests of current and future generations.

38

According to Marx: The usefulness of a thing makes it a use-value . . . It is therefore the physical body of the commodity itself . . . This property of a commodity is independent of the amount of labour required to appropriate its useful qualities . . . Use-values are only realized [verwirklicht] in use or in consumption. They constitute the material content of wealth, whatever its social form may be.

Marx (1890), p. 126. 39 These are explored by Questions 1, 2, 3, 6, and 8, respectively. 40 Questions 4 and 5. 41 See, eg, Ewing (2017). 42 See ClimateCaseChart.com, Urgenda Foundation v. State of the Netherlands (2020), https://bit. ly/2rXGyMz (last visited 5 July 2022).

Meeting the Challenge of the Commons: An Emerging Field of Common. . .

4.2 4.2.1

29

Property Rights vs Other Constitutional Rights Right to Housing

The first case features an old, old story: a private corporation suspends building activity because a public authority requiring an authorization stops it. The unlawful possessors infringing the development company’s private property are families with children. They occupy the building and carry out improvements. After a couple of months, the manager of the corporation discovers the occupation and attempts to evict the families through legal means. The main legal issues concern: (a) the solution of the conflict between an owner who is not using her building and unlawful possessors who are living in a state of necessity. According to these elements, the case explores the remedies the owner can deploy and the roles of private law and criminal law. (b) the relevance of abandonment in the resolution of such conflicts. In this case, and in all our factual hypotheses we take into consideration, the exercise of the owner’s right not to use generates a de facto abandonment. Although the owner is not relinquishing her property through formal acts or declarations, her behavior and the state of neglect of the building render clear she is not interested in its use value. In Question 1, the lack of use derives from the lack of public authorization. (c) the right of the possessors to obtain compensation for the building improvements they have carried out. The solutions to legal issue (a) are similar in most legal systems considered. In Germany, Italy, the Netherlands, and Sweden, the private corporation would prevail and obtain a judicial remedy to evict the families. In Germany, the owner can bring a claim relying on either of two civil code articles: stopping the interference of the possessors or recovering the building from the possessor. The state of necessity of the families cannot be opposed and it does not constitute a valid argument against their eviction: in fact, the solutions provided by public assistance are deemed sufficient to ensure alternatives to people in need. For this reason, no relevance can be assigned to the right of housing or to the protection of vulnerable children. In Italy, the owner would prevail in a civil action, by claiming the recovery of possession against the possessor, but would not prevail in a criminal action, because the state of necessity would work as a justification for the crime. In the Netherlands, the owner would obtain an eviction order against the possessors, since the families would have public assistance for their particular situation; since 2010, the occupation of a vacant building has been considered a criminal offense: before that date, taking possession of someone else’s abandoned building was justified by the large demand for housing in the aftermath of the Second World War (squatting was generally tolerated). In Sweden, the owner can successfully apply for an eviction order based on disturbance of possession. The rules about trespass cannot be applied

30

U. Mattei et al.

to this case, because they are provided to protect offices, factories, and other work areas. In 2017, the judicial procedure to obtain an eviction order was modified in order to protect the owner in those situations when she is not able to determine the identity of the occupiers. The owner can now apply for eviction by demonstrating reasonable effort to obtain that information. The reform has introduced a special protection for the occupiers: an eviction proceeding includes a proportionality test, according to which this order can be approved “insofar as the reasons to apply the measure offset the inconvenience or detriment to the defendant”. Belgium is the only legal system among the reported continental European ones to allow non-owners to prevail in a dispute against the owner of the building. Three main factors render this solution possible: (1) the families were in state of necessity at the time of occupation, (2) the building was not used and no plan is available to understand its future use, and (3) the eviction of the families would have more serious consequences than the prejudice suffered by the owner. In Belgium, the occupied building is considered a domicile, so the right to housing of the squatters is protected against any interference. Until October 2017, the owner could apply for an eviction order only before a civil court (whose reasoning would have been the one just mentioned). Thereafter, a federal regulation was introduced to criminalize squatting. We do not have information on how this contradiction can be reconciled. In Germany, the Netherlands, and Sweden, the welfare state continues to be considered a valid support to people in need. The judicial solutions focus on civil remedies and procedures, apparently even if the occupation of immovable property is also a crime. No information is provided by these reports about the relationship between these legal fields, so we do not know if a priority exists or if the owner can apply for a preferred remedy. We assume that in the reporting continental European legal systems the civil remedies are generally applied. The solutions to legal issue (b) show that the state of neglect or abandonment of a building does not generally influence the result of the proceeding. An exception is in Belgium, where judges may consider this when evaluating the effects of eviction on both squatters and owner; some Belgian federal regulations consider abandonment of a dwelling to be an administrative offense, punishable by fine. The Brussels housing code provides that a special precarious occupancy agreement can be signed with squatters in order to assign them use of a vacant building. These agreements are valid until the owner submits a plan for the future development of the building. In Italy, abandonment influences the decision about damages produced through the occupation. Some decisions argue that squatters must compensate the owner because the occupation in re ipsa damages the owner, while other judgments state that evidence of damage must be proved. Damages only emerge if the occupation precludes the owner from renting, selling, or obtaining other returns from her building. In other words, we could say that the interest of the owner to use and to exclude is relevant, and without it the occupation does not necessarily constitute a damaging event. In the reporting continental European legal systems, the solutions to legal issue (c), although varied, share common ground. Germany, Italy, and the Netherlands

Meeting the Challenge of the Commons: An Emerging Field of Common. . .

31

provide compensation for improvements depending on the possessor’s good or bad faith. In Germany, a possessor in bad faith who has committed a tort cannot obtain compensation for works and improvements carried out; moreover, the improvements described in the case—painting the walls and adding a garden—are considered useful for the possessors’ living conditions but not necessary for the building. the Netherlands shares the same solution: the possessor in bad faith can only remove the improvement if it is possible; as an alternative, she can sue the owner for unjust enrichment, deploying a remedy that is available also in Sweden. In Italy, the possessor even in bad faith can be refunded for extraordinary works in the lesser sum of the increased value of the land and the building and the costs incurred. In post-colonial legal systems, we find different solutions to the legal issue described under (a). In South Africa, the possessors might prevail. The main argument for possessors prevailing includes protection of the right to housing and presence of vulnerable people (children); nevertheless, the unlawful possession of a building is constructed formally as trespass. In contrast, in the United States, Canada - Common Law, and Quebec the owner may apply for an ejection or an eviction in order to recover the possession of a building. The only limit to this action would be the successful acquisition of property through adverse possession, but from Question 1 we know that the families spend only a short time in the building. The state of necessity is not relevant: in the United States an emergency is required to recognize this special condition. The right to housing is not relevant to decide this case: in Quebec it is not a justiciable right because it is not considered fundamental (only an economic and social right). Similarly, examination of the legal issue described under (b) shows that abandonment generally cannot influence judgement. In South Africa, de facto abandonment does not have any consequence, while de jure abandonment—that would consist in a formal surrender of property rights—is not admitted, because vacant property cannot be res nullius and belongs to the State. The criterion to define the right to obtain compensation (legal issue under (c)) depends on the good faith or the bad faith of the possessor. In Quebec, evicted families could apply for reimbursement of the sum invested in improvements, while in South Africa and Canada they can sue the owner only for unjust enrichment. In the Canadian system, the probability of failure is high, considering that occupation is an unlawful act. In the United States, the possessor has no possibility to obtain compensation, not even under the unjust enrichment doctrine. In the former socialist legal systems, protection of property rights enables the owner to prevail. In Croatia, Slovakia, and Russia she can sue for trespass, obtaining an ejection or an eviction order even through an urgent procedure. The owner can sue the possessors to recover possession of the building and damages for the interference caused by the occupation. Thus, analyzing the legal issue under (a), we can state that property rights are not generally balanced against the right of housing; in Russia, this constitutional right influences only the removal of the levy applied to the debtor’s housing property; in Croatia, the protection of the right to housing can be claimed only against public authorities and not within private relationships. The presence of children is not sufficient to change the solution to this case: in Russia, a representative of the municipal guardianship body would

32

U. Mattei et al.

intervene in the eviction procedure in order to take responsibility for the children and find for them an alternative housing solution. In Slovakia, the presence of vulnerable persons can sustain an argument for a possible infringement of human rights, assuming that eviction is contrary to “good morals”. Regarding the legal issue under (b), the solution of the case is not influenced by the vacant condition of the building because the de facto abandonment is not relevant if the period of time sufficient to acquire through adverse possession has not elapsed. Families can obtain compensation for improvements only in Slovakia. In Croatia and Russia they cannot sue the owner because the improvements were necessary only for their own enjoyment of the building. In these countries, a possessor in bad faith can demand compensation only if the improvements were necessary and useful for the owner.

4.2.1.1

Comparative Remarks

The answers display common features. The first is a generalized impossibility to balance property rights with the right to housing, even when a building is vacant and the families are in need. The state of necessity is applied only in few countries, and it generally works only as a justification in criminal law. A second shared feature is the insignificance of de facto abandonment: in the reporting legal systems, the right to use normally includes its negative version, ie the right not to use and therefore to abandon. In Belgium, however, abandonment can determine application of an administrative fine. A third shared feature is the absence (except in Belgium) of temporary solutions to assign unused buildings when there is no plan that describes their future development. A few issues need clarification and would benefit from in-depth analysis. We do have sufficient information to understand the relationship between civil and criminal remedies. In addition, judicial orders to remove squatters are described as ejections or evictions, but no information is provided by the reporters about the actual intervention of public force to execute the removal of unlawful possessors should they resist. The possibility to obtain compensation for improvements of a building has been generally analyzed through two main categories: the good or bad faith of the possessor and the unjust enrichment doctrine. A related considered element concerns the necessity of the improvement. In order to compensate evicted possessors—or at least to reimburse their costs—the improvement must be generally necessary or useful to the owner. This criterion is incompatible with the possibility to compensate the bad faith possessor (as the squatter would be qualified), especially when the necessity of the improvement is evaluated ex post by consulting the owner. The Italian solution from this point of view shows both originality and an objective criterion.

Meeting the Challenge of the Commons: An Emerging Field of Common. . .

4.2.2

33

Right to Health

The factual case in Question 2 presents a dispute similar to Question 1. The elements comprise (a) property rights colliding with the right to health; (b) the vulnerable people are migrants: their position is particularly delicate if they are “irregular”. In this case, access to public health care could entail risk for their permanence if doctors or health workers denounce their presence, which in most countries is required by law. For this reason, self-organized assistance, outside the public service, can represent for the only treatment possibility; and (c) the building acquired a higher value because of the self- organized medical center. Thus, the owner takes advantage of someone else’s efforts of urban regeneration. In reporting continental and non-continental European legal systems, the owner would prevail against the unlawful possessors and the protection of migrants’ health is not sufficient to defeat property rights in a balance test. In Italy, it could work as mitigating circumstance of the crime if the owner decides to prosecute the occupiers. In the Netherlands, an emergency situation could be invoked by the occupants, perhaps stressing the fundamental role of health care in the ECHR; however, such emergency would be difficult to demonstrate because many alternatives are provided by public assistance, enabling migrants to access public health care. Still, the abandonment of a Dutch building could be qualified as an abuse of rights (although this is not a strong argument). In the Swedish report, the problem presented in point (b) is considered: access to public health facilities is ensured to irregular migrants, supported by a duty of secrecy for healthcare professionals in order to protect the migrants’ privacy. The reporting post-colonial legal systems favour the owner. In the South African report, however, the solution of the case needs clarification. It appears that in a conflict between property rights and right to health, the latter would prevail in the balance test. Although the South African constitution protects right to health, the access to healthcare for irregular migrants (especially when no emergency exits) is not guaranteed in practice. The material effect of conceiving the eviction as “just and equitable” is unclear. In the United States, Canada, and Quebec, the owner would prevail and obtain an eviction order; in the U.S. system, abandonment can concern only personal properties, so the vacant building of Question 2 is just unoccupied. This condition does not prohibit the owner from excluding others and claiming possession. A similar picture emerges in Croatia, Russia, and Slovakia: the prevailing of property rights over the right to health is clear. In Slovakia, abandonment of immovable property is not possible, apparently because it is registered for tax purposes (a debate among legal scholars exists on this issue). In Croatia, the solution of Question 2 involves profiles of criminal law, since helping irregular migrants is subject to criminal punishment. The balance test can determine compression of property rights only if adverse possessors are defending their own rights. There is an evident distinction between the position of migrants that are beneficiaries and the role of the occupiers providing

34

U. Mattei et al.

service for them. In two countries, the possessors even risk prosecution for violation of zoning law (Germany) or for infringement of healthcare protection (Croatia, if the dwelling occupied is not adequate to organize a medical clinic).

4.2.3

Right to Food

In the factual case presented by Question 3, private vacant land is transformed by a group of individuals into a communal garden, where fruits and vegetables are produced. The ensuing conflict between ownership and possession involves the property of fruits derived from an activity not authorized by the owner. The solution of this case requires a preliminary analysis of the meaning of the right to food per se, but it seems this is not the framework of discussion in any legal system. While the ownership of fruits produced through an unauthorized and illegal activity is approached from different directions, the results favor ownership. Since this conflict is not approached legally as an issue of right to food, ownership of the land generally includes the right to keep its fruits even when the owner did not contribute any labor for their production.

4.2.3.1

Cases

In reporting continental European legal systems, the owner would generally prevail when suing the possessors claiming the surrender of the land. In Germany, cultivation of the vacant land plot is a special type of improvement, but because the possessors are deemed to be in bad faith they cannot obtain any compensation for their work. Moreover, ownership of the land plot includes that of its fruits and vegetables, before and after their harvest. The meaning of the right to food is not clarified; it could prevail theoretically over property rights. (In Germany, however, since a variety of public financial support ensures that people have access to food, it would not be relevant in this case.) In Italy, the owner can apply for recovering possession of her land and the possessors in bad faith must return the fruits and compensate the owner for those things they have used before the start of the judicial proceeding. In the Netherlands, possessors can acquire ownership of the food harvest thanks to the rule of specificatio that assigns property rights to someone who has manufactured a new thing with materials belonging to another person. Without this process of transformation, raw materials—fruits and vegetables— belong to the owner. In Sweden, the cultivation of private vacant land is prohibited and it is not included in the set of rights that derive from the allemansrätt: people who roam on private land can pick a reasonable quantity of berries or mushrooms, but the decision to cultivate belongs to the owner of the land. The Swedish report illustrates the essential role of public assistance in excluding the possibility to identify a state of necessity, since access to food is ensured by public authorities. The former socialist legal systems report substantially different solutions to this case. In Russia, fruits and vegetables belong to the owner who can sue the possessors

Meeting the Challenge of the Commons: An Emerging Field of Common. . .

35

on the basis of unjust enrichment, because they benefited from an unauthorized activity. However, if the Court orders possessors to clean the plot before vacating it, they may take away any fruits and vegetables. Croatia is the only reporting former socialist legal system where the right to food would prevail over property rights, since the former is essential for sustaining human life. Thus, if cultivation of the plot has ensured the possessors’ survival, the state of necessity justifies their violation of the right of ownership. In Slovakia, possessors who are forced to leave a communal garden can harvest fruits and vegetables they have grown. They can apply for compensation only if the owner seeks damages. In the reporting post-colonial legal systems, property rights generally prevail in the balance between ownership and possession. In South Africa, possessors have no cause of action to obtain fruits or vegetables or to seek compensation for their work: special protection of the right to food does not exist, but specific public initiatives combat children’s malnutrition. In the United States, according to the unjust enrichment doctrine, squatters can apply for compensation for cultivation. In Canada, no remedy exists for unlawful possessors. In Quebec, the rule is similar to the Italian one: possessors in bad faith must return fruits and vegetables to the owner, while possessors in good faith can conserve them.

4.2.4

Right to Culture

This factual case is characterized by a conflict between (public) property rights and antagonistic possession: occupiers (commoners) use the violation of public property as a political tool to challenge the privatization of a public theater. This case emerges from Italian struggles for the commons organized after the successful referendum against the privatization of the water supply system.43 The best-known culture case is the occupation of the Valle Theater in Rome, where a group of actors (cultural commoners) occupied this ancient theater to avoid its privatization in June 2011.44 In this case, followed by many similar ones through Italy, squatters organized cultural activities open to the public in order to ensure inclusion in dealing with culture as a commons. This qualitative standard, essential for the life of the commons, was achieved through community organizing and averted development of a closed community that excluded outsiders from participating in managing a public space. For this reason, we asked the reporters to identify the best legal institution to organize an inclusive management of the commons if squatters obtain permission to stay. The reported solutions to this case show that commoners cannot legally defend their occupation, which can survive only through political means. From the legal points of view, the public owner can easily evict them. Cultural productions and the involvement of the citizenry in open activities are not sufficient to allow them to stay

43 44

See Mattei, supra note 37. See, eg, Giardini et al. (2012).

36

U. Mattei et al.

and manage the theater. Thus, no difference exists in the infringement of private versus public property. However, some remedies are available to combat the public decision to privatize.

4.2.4.1

Cases

In Belgium, the decision of a municipality to privatize the theater can be challenged by the region as supervising authority. Special protection accorded to cultural and historical patrimony renders likely such an intervention. Nevertheless, a public owner maintains the right to evict the actors—even if this is not easy politically— especially as time goes by. Occupation by the actors cannot be considered unlawful if they had the key to the building and no break-in was committed. Culture is protected by the Belgian constitution, so the actors could argue their occupation is justified by the standstill doctrine. In Germany, eviction is not the result of a civil action: when the owner is a public authority it is an administrative act, enforceable through intervention of police. The same legal framework is shared by the Italian legal system, where prefects generally order the eviction. Actors cannot challenge the public decision to privatize the theater because they do not have legal standing. The occupation of a theater is an unlawful trespass in the Netherlands, Sweden, Croatia, Russia, and Slovakia. In these countries, actors cannot legally defend their occupation. In Sweden, the only possibility the actors have is to demonstrate that eviction is an excessive measure considering they are offering cultural services (according to the reporter, success is unlikely). In Russia, the privatization of a theater can be challenged by the public prosecutor. Among reporting post-colonial legal systems, only in South Africa are the actors able to defend their occupation by stating it has been instrumental maintaining cultural production, without determining costs for the municipality. In the United States and Quebec, a municipality can evict the actors since it has the right to possession and of discretionary exclusion. Elsewhere in Canada, actors would prevail if they can demonstrate the occupied theater is the only public space to organize performances and other artistic activities. In this case, eviction would represent infringement of the Canadian charter of rights and freedoms and proportionality of this measure must be demonstrated by the public authority. The answers about the legal institutions that actors can deploy for managing the theater through an inclusive and participatory structure illustrate a convergence among reported legal systems. Non-profit organizations, foundations, and trusts are the most utilized models (even if no reporter analyzes the basic features of these institutions that allow participation and protection in the interest of future generations).

Meeting the Challenge of the Commons: An Emerging Field of Common. . .

4.2.5

37

Access to Nature

In this case, access to nature is analyzed not only with the aim of understanding the extent of the right to exclude but also to investigate the role of customs and uses in the domain of the commons. Question 6 introduces a family who roamed a green area during weekends before the land plot and lake within were sold to a corporation that decided to transform the area into a country club, rendering impossible access to nature. This plan is challenged by an environmental group seeking to protect access to natural commons. In the reporting continental European legal systems, although different legal strategies are possible to defend access to the green area, the legal standing of the environmental group appears problematic. Although a special right to roam is regulated in Sweden, the other countries of this reporting group present different remedies to protect access to nature. Forms of access are ensured by public paths (Belgium), rights of common usage that include access to free landscape for recreational purposes (Germany), public rights of way (Italy), and limited forms of right to roam (the Netherlands). In Belgium, the family (as well as other inhabitants of the area) can sue the corporation in front of a justice of the peace in order to limit the corporation’s right to enclose the green area by fences. Petitioners must demonstrate that the public access has been consolidated over the long term, such that the plan to enclose the green area infringes common heritage. Similarly, in Germany, individual members personally affected by the decision of the corporation can challenge the enclosure decision. They must demonstrate the green is included in the “free landscape”, a concept not explained by the reporter. In Italy, public rights of way can be acquired through adverse possession. The plaintiffs suing the corporation must demonstrate 20-year use of the path to cross the private area. In this case, the public rights of way work as an obligation that follows the land plot, so the new owner cannot refuse access. In the Netherlands, the right to roam on someone else’s land is admitted only if the owner is not using the land; fences, however, are sufficient to indicate owner’s exclusionary objective. The most complete solution is given by the Swedish legal system’s allemansrätt: the corporation cannot exclude families from the green area. It can only apply for an order that prohibits them from making extraordinary disturbances. The families can report the enclosure of the gate to the County Administrative Board, which will have the power to order the corporation to open a gate in the fence or, if the only purpose of the fence is to exclude the public, to remove the fence altogether. Among the reporting former socialist legal systems, only Croatia admits special forms of right to roam. Although access to nature does not exist as a general institution, the Nature Protection Act (“NPA”) identifies exceptions to the power to exclude by defining a set of cases and types of private property affected by such limitation. It is not clear if the situation described in Question 6 corresponds to one of the hypotheses regulated in the NPA. However, the Croatian reporter states that walking and playing can support an acquisition by adverse possession of an easement that is probably similar to a public path. In Russia and Slovakia, access to

38

U. Mattei et al.

nature is possible only in natural parks or public green areas. In Russia, families can apply for a servitude of passage because of the presence of a lake that belongs to the public domain; they can petition the public prosecutor to intervene in the legal proceeding. In Slovakia, the right to free passage can be acquired through long term possession, but possessors must be in good faith. In every system considered above, legal arguments are based on the existence of uses and customs that support public access. Thus, access to nature is ensured indirectly through legal solutions stemming from a variety of fields of private law. Similar solutions are not possible in South Africa, the United States, or Quebec. Only English Canada displays remedies and legal tools similar to the continental European ones. In South Africa access to private property is not possible and in the factual case the right to roam must be authorized (or implicitly tolerated) by the former owner. The corporation can legitimately revoke the consent and enclose the green area. In the United States, the acquisition through adverse possession of a right to walk cannot be demonstrated because families did not possess in an exclusive (hostile) way and the owner was not excluded from the green area. In the Canadian system, families can argue the consolidation of a public right of way, whose essential elements are the opening by the owner to public use and the acceptance of the public. These features can derive also from a long and open use of the green area, rendering unnecessary any formal declaration or act.

4.2.6

Interim Summary Remarks

These answers demonstrate access to nature can limit owner rights to exclude only when supported by the development of special uses or easements. For this reason, the passage of time is fundamental: most of the answers illustrate the best solution is the acquisition through prescription or adverse possession. According to this framework, we conclude that access to nature cannot be protected if it is a recent practice, except in those legal systems that establish special rules for the conflict between access and exclusion. Regarding environmental associations, few reporters analyze their standing, because the majority believe persons affected directly by the transformation of a green area can directly sue the corporation. This approach is justified by the facility to demonstrate interest in promoting the judicial proceeding; such interest on the part of an environmental association is less obvious. In some reports, the association can sue the corporation claiming infringement of environmental laws, because a country club can have a negative environmental impact. Environmental associations can also sue for violation of zoning laws or procedural requirements to obtain building permits.

Meeting the Challenge of the Commons: An Emerging Field of Common. . .

4.3

39

Access to Water

Questions 4 and 5 aim at investigating access to water in urban and rural contexts. Water is a commons, and the first part of the Questionnaire has already demonstrated that legal systems generally classify it as a public good or res communis omnium. These factual cases seek to understand the material implications of those classifications, focusing on access to, and uses of, water.

4.3.1

Rural Context

Question 4 presents a diversion of a river, whose waters are used by the nearby villages through local aqueducts and irrigation canals. A corporation diverts the course of the river to the extent that water no longer flows through the village’s basic infrastructure, making cultivation impossible. The aim of this case is to investigate the legal title to use water and what kind of use prevails in the described dispute. The most problematic issues arise when both activities have been correctly authorized. In all reporting continental European systems, both parties need a public permit to use the water of the river, which belongs to the public domain. Distinctive legal traits, however, can be identified. In Germany, villagers must obtain public authorization if they do not own the lands through which the water flows. We can infer that private waters exist, and in this case the owner can freely use the river. The activity of the corporation can be stopped if it has caused the diversion. Thus, the priorappropriation water rights doctrine—according to which the first person to take water from a source for beneficial uses (eg, agricultural, industrial, household) has the right to continue to use it—appears to be the law. No related information is provided by the Italian report, which specifies that both parties need a permit to use water from the river. If waters are not public, the judge can resolve the dispute by applying an article of the Italian civil code, which establishes a balancing test according to which the judge must conciliate the parties’ opposing interests; the riparian owner who must tolerate the compression of her right to use can obtain compensation. In the Netherlands, water is a res communis omnium, so the dispute concerns opposing rights to use (since ownership cannot be introduced). Villagers can use water through the irrigation canal if they own the land along the river without a public permit; such permit is necessary for building an aqueduct. Villagers would prevail over the corporation because of the priority of their use. They can challenge the corporation in court to stop activity, claim compensation for the suffered damages, and have the river flow restored. In Sweden, both the parties need public authorization to use water, which can be granted if the disadvantages from an environmental, economic, and health perspective do not outweigh the effects of such use. Thus, prior use by the villagers matters, since disruption of the waterflow can be considered disadvantageous from a social and economic point of view. The prior-appropriation water rights legal doctrine is applied in the reporting former socialist legal systems, where villagers will prevail over the corporation,

40

U. Mattei et al.

obtaining restoration of the waterflow as well as compensation for damages. Russia, Croatia, and Slovakia each require a public authorization to build an aqueduct. In Slovakia, the permit is linked to special use of water, while its general use is free. In the reporting post-colonial legal systems, the set of remedies is not original, although the type of use plays an important role in defining the dispute. From the South African report, the solution of the case is not evident: the prior-appropriation water rights doctrine could be applied if the activity of the villagers is legal, and this depends on the period in which they have built the irrigation canal and the local aqueduct. Before 1994, running waters could be owned by private subjects, so private infrastructures to canalize it were admitted. After 1994, a reform established that water is a common resource, so property rights cannot be allocated. Public authorities can only authorize the private use of the resource. If the villagers have built their irrigation canal and aqueduct after this reform and without a special public permit, their activity is unlawful and could be defeated by the corporation. In the United States, villagers can sue the corporation arguing the diversion constitutes a private nuisance; they must demonstrate their interest in land that determines the title to use water, considering that the legal classification of this resource changes according to national jurisdictions. If the damage of the diversion has been suffered by the public at large (rather than individuals), villagers can sue for public nuisance, arguing the corporation has endangered their life, safety, health, and property, obstructing the enjoyment of a common right. They can file a citizen action or a class action and ask for an injunction to stop the diversion, the restoration of the river flow, and compensation for damages. In Canada, the villagers can sue the corporation and obtain a permanent injunction to stop the unreasonable diversion of water carried out by it. The diversion is “unreasonable” because it has reduced the flow of the river in quantitative and qualitative terms, infringing the limit that federal regulation establishes for extraordinary uses of water. The Canadian legal regime of water identifies ordinary uses, which are domestic or animal, and extraordinary uses, which include irrigation and manufacturing. If both parties have been authorized by the public authority to use the river, the dispute would be resolved according a criterion of priority. In particular, priority of use will be assigned to the upstream riparian owner; in some Canadian provinces, this decision is influenced by the kind of use, because the domestic use of water generally prevails on agricultural or commercial purposes. Villagers in Quebec can sue pursuant to articles of the civil code. One article states that the owner of a spring, lake, or pond can use them but must preserve their quality; another article concerns running water and prohibits the owner from changing in quality or quantity the regular course of the water that leaves his land (the owner is also enjoined from preventing other riparian owners from exercising the right to use water); a third article states that “a person having a right to use a spring, lake, sheet of water, underground stream or any running water, may prevent the water from being polluted or depleted” and requires “the destruction or modification of any works by which the water is being polluted or depleted.” The answers demonstrate strong commonalities of regime among the reporting legal systems. The prior-appropriation water rights doctrine appears to be the most common solution to reconcile opposite interests in the use of water. This approach is

Meeting the Challenge of the Commons: An Emerging Field of Common. . .

41

not influenced by the legal classification of water. Even where the river can be considered as a private good, the diversion is prohibited and the prior use prevails. Scant attention is reserved to the type of uses: Canada is the only system in which the private use of water is classified according to the typology of use, and such classification can influence the solution of the case. This approach could be important in those situations in which the prior use belongs to a corporation that uses water for industrial activities: in this case, villagers who divert the river to fulfill basic needs may lose against the corporation. For this reason, the best rule to govern conflicts for the use of water derives from a mix of criteria. The prior-appropriation water rights doctrine might be completed by a focus on the use of water, giving priority to household uses and agricultural essential activities, and by a balance test to reconcile opposite interests like in the Italian solution disciplined by its civil code. This complex mechanism would give strong protection to access to water.

4.3.2

Urban Context

Access to water in urban contexts depends on the universality of the water supply system. In other words, access is connected to (1) a material condition, which is the capability of pipelines to distribute water everywhere (even in those areas where the distribution costs exceed the revenues), and (2) an economic standard, according to which the price of water must exclude profit and be reasonable. In Question 5, the water supply system is managed by a private corporation and the price of water increases 200% in one year; the three users fail to pay the water bill, and after the third bill is not paid the corporation cuts off their access to water. Among the reporting continental European legal systems, only in the Netherlands would the users fail in a lawsuit against the corporation: only users who can demonstrate their vulnerability are protected by special rules against the detachment of water. Germany, Italy, and Sweden prohibit the corporation’s cutting off access to water. In Germany and Italy, the private supplier is not permitted unilaterally to fix the price of water because public standards exist. German users can legitimately refuse to pay the bill and contest the unreasonableness of the price by petitioning the civil court to fix a new rate. The corporation can defend the price increase by demonstrating its dependence on special works or investment to improve the water network. Italian users can sue the provider before administrative court if the price is not consistent with public standards, while they can apply for civil remedies against the water’s cutting off; the cutting off is possible only if the users do not pay a sum equivalent to one year’s supply of the minimum quantity of water (50 liters per day). However, this quantity must be supplied even if the users are not able to pay the bill, because it is the minimum quantity of water necessary to survive. In Sweden, this kind of dispute seems merely an abstract problem. The water supply system cannot be managed by a private entity, and the price of water cannot exceed the costs required to operate the water distribution: the water supply system is non-profit. To completely cutting off of water is prohibited.

42

U. Mattei et al.

In the reporting former socialist legal systems, the detachment is limited procedurally. In Croatia and Slovakia, the provider must notify users of the detachment. In Croatia, the users can prevail by demonstrating that the corporation has not sent the notice. The most rapid remedy is a possessory action. After the notice, failure to pay two bills is sufficient for cutting off access to water. The public authority fixes a maximum price for water. According to the Croatian report, disputes similar to Question 5 have been recurrent in the last year because of the increase in poverty caused by the economic crisis. Nevertheless, vulnerable people who respond to precise public standards can ask for public assistance and obtain free access to water. In Slovakia, the system is more severe: after notice, the user must pay within 30 days to avoid the detachment. The price of water cannot be challenged if it has been approved by the regulatory authority. In Russia, users would fail because cutting off access to water is permitted and legal after two missed payments; no notice is necessary and the provider can execute the detachment in one day. However, the price of water can be challenged before an administrative court, being fixed by public authorities. In the reporting post-colonial legal systems, users generally will prevail against the corporation if it has not sent notice of detachment. In the United States, Canada, Quebec, and South Africa, the absence of notice is the only winning argument for the users who sue the corporation; thus, cutting off cannot be obstructed if procedure has been followed by the provider. In South Africa, the only guarantee is a basic allowance of water that must be provided. The national reports demonstrate that access to water in urban contexts receives sufficient protection only in continental European legal systems, where the right to water plays a role in the dispute against the provider, even if it is not generally applied explicitly as an argument to defend the failed payments. In the other reporting legal systems, users are protected only by procedural formalities, so the notice ensures a sort of due process. The relationship between users and providers are governed by contract and constitutional rights arguments do not have much of an impact. The right to water is not an explicit constitutional right, but it can be extracted from the right to life or health.

4.4

Informal Communities and Future Generations

Questions 7 and 9 aim at investigating collective remedies to defend territory and climate.

4.4.1

Territory

In Question 7, villagers try to stop corporate gold mining operations authorized by the government. The reporters were required to identify legal actions that the villagers can take individually and as community to oppose such activity, which risks polluting the territory and nearby river.

Meeting the Challenge of the Commons: An Emerging Field of Common. . .

43

In the reporting continental European legal systems, the villagers’ possibilities to prevail are limited because of the presence of governmental authorization. In Belgium, Germany, the Netherlands, and Sweden, the villagers can challenge the public permit, invoking irregularities in the administrative procedure or infringement of environmental standards. Villagers can apply for individual remedies, while the community (as an informal subject) does not have legal standing. In Belgium, Germany, and Sweden, environmental associations can file a lawsuit, but they must demonstrate direct interest in the protection of the river. The Italian report refers to the precaution principle, according to which the villagers can apply for stopping the mining operations because of the risk of pollution. Individual citizens and associations that work in the field of environmental protection can file before the Minister of the Environment and then before an administrative court. The association must demonstrate its representation of a widespread public interest. In Croatia, the villagers can discover pollution levels of pollution by asking for an inspection before starting a civil lawsuit. They can sue for an order to remove the risk of harm, but the judge can deny protection arguing (pursuant to statute) that mining operations and the corporate activities are “socially useful.” This term is opaque: legal scholars disagree about its content. However, since the government has authorized the corporate activity it is difficult to challenge its social utility. The main legal issue, therefore, is the risk of pollution: if pollution were actual, the villagers could sue the corporation for private nuisance to enjoin future polluting activities. This remedy is residual, so the users can apply for it only if other legal tools are not available; in this case, the plaintiffs can challenge the public permit before an administrative court. In Russia, no preventive action is admitted and actual damages must be demonstrated to challenge the public permit. This act generally establishes precise environmental standards and their infringement can determine the revocation of the permit (as occurred in a actual 2012 case). The villagers can sue as individuals or as co-claimants, and they can ask the public prosecutor to assist them. In the reporting post-colonial legal systems, the solutions to Question 7 vary. In South Africa, the villagers can sue the corporation arguing a threatened breach of an environmental statute that protects against pollution and other negative environmental impacts. Class action is permitted for the infringement of a constitutional right if the villagers are able to demonstrate that mining operations have violated their right to life, health, or environment. In the United States and Canada, private or public nuisance are legal actions that could offer remedies to the villagers. However, the chances of success of a public nuisance action are limited, considering that the government has authorized mining. In Quebec, the mining activity cannot be stopped, and the villagers can ask for an injunction only if the damages are serious and irreparable. Analysis of the answers to Question 7 demonstrates that the endangered community has no legal standing, which evidences a disregard for collective remedies. The risk of polluting is not sufficient to obtain protection, and only in the Italian report is a precaution principle mentioned as an avenue for legal contestation.

44

4.4.2

U. Mattei et al.

Climate

The climate crisis—the existential issue of our time—presents itself at the intersection of the commons, the law, and the way we live now. In CAPITAL Volume Three, Marx offers this topical vision for our ecological responsibility to the planet: “Even an entire society, a nation, or all simultaneously existing societies taken together, are not the owners of the earth. They are simply its possessors, its beneficiaries, and have to bequeath it in an improved state to succeeding generations, as boni patres familias.”45 We are astonished by the synchronicity of such vision’s presenting itself on a page 911. Question 9 mixes elements from the Volkswagen emissions scandal and the successful Urgenda case in the Netherlands.46 The plaintiffs are 18 years old, they do not own a Popcar, and they want to sue both the government and the car manufacturer in the interest of future generations, challenging the feeble sanctions imposed by the former on the latter. The essence of this case is not the amount of the sanction but what this sum symbolizes: the hands-off attitude of the government in protecting climate and the environment in the interest of future generations. Thus, the weak point of the case is the legal standing of the plaintiffs. The reporters were asked to explain how the teenagers might succeed in a civil lawsuit. In the reporting continental European legal systems, the young plaintiffs would generally fail against the car manufacturer, because they do not own a Popcar (so no legal relationship exists). The lawsuit against the government can have different outcomes. In Belgium, this kind of action is possible and a similar case is pending. The citizens association Klimaatzaak, following the Urgenda model, has sued the Kingdom of Belgium and three Belgian regions to compel them to reduce GHG emissions.47 Klimaatzaak has argued the defendants’ fault, breach of the precaution principle, and infringements of the Belgian constitution and of the civil code that protects res communes. An appeal was rejected and the case is proceeding on the merits. In Germany, the plaintiffs can sue the public authority responsible in the region where they live if clean air standards have been exceeded by the emissions of Popcar. However, they cannot challenge the sanction because such amount is at the government’s discretion. In Italy, this kind of challenge is admitted by the environmental code: plaintiffs directly affected by the environmental damage

45

Marx (1894), p. 911. In 2015, an environmental group and 900 Dutch citizens sued the Netherlands government to require it to do more to prevent global climate change. The court in The Hague ordered the Dutch state to limit GHG emissions, concluding the state has a duty to take climate change mitigation measures and citing (among other things) the Dutch Constitution; the European Convention on Human Rights (“ECHR”); and the UN Framework Convention on Climate Change. This is the first decision by any court in the world ordering states to limit GHG emissions for reasons other than statutory mandates. On December 20, 2019, the Supreme Court of the Netherlands upheld the decision under Articles 2 and 8 of the ECHR. See ClimateCaseChart.com, supra note 47. 47 See, eg, ClimateCaseChart.com, VZW Klimaatzaak v. Kingdom of Belgium & Others (2020), https://bit.ly/35pNWif (last visited on 5 July 2022). 46

Meeting the Challenge of the Commons: An Emerging Field of Common. . .

45

produced by the Popcar can challenge the sanction as too feeble and not proportional. In the Netherlands, thanks to Urgenda, the plaintiffs can sue the government arguing under tort law that the emissions of greenhouse gases (“GHG”) and climate change affect their lives. This action is based on the idea that protection of constitutional rights imposes on the government a duty to take positive measures, so actions to prevent climate change must be adopted by public authorities. In Sweden, plaintiffs cannot challenge sanctions imposed on the car manufacturer, but they can litigate infringement of the standards established by environmental quality regulations. They must be able to demonstrate they have been directly harmed by this infringement; otherwise, the damage represents only a hypothetical scenario not sufficient to justify their legal standing. The Swedish reporter discusses a lawsuit promoted by a network of associations against the government to challenge the decision to privatize a public corporation engaged in mining operations.48 In that case, plaintiffs argued that privatization increased the risk of polluting; the court, however, determined plaintiffs had not experienced an injury from the governmental decisions at issue. The existence of specific statutes that protect the environment or air quality is the necessary condition for Croatian plaintiffs to sue the government; without this kind of rule, which does not currently exist, they have no possibility to prevail. In Russia, citizens can sue the government assisted by the public prosecutor, because they can defend the environment independently from actual harm to their health or property rights. In these countries, the plaintiffs cannot sue the car manufacturer, because they do not own a Popcar and remedies of contract law cannot be applied. In South Africa, plaintiffs can sue for infringement of their right to a healthy environment. However, no precedent exists and the reporter was unable to define their possibility to succeed. In several other reporting post-colonial legal systems, we find the same legal issues: because the plaintiffs are not consumers, they cannot sue the car manufacturer. In the United States, however, the students can file a constitutional lawsuit against the government (as well as a fraud and negligence lawsuit against Popcar). In Juliana v. United States, 339 F. Supp. 3d 1062 (2018), for example, plaintiffs—a group of young people then aged between eight and nineteen—assert there is a very short window in which defendants can act to phase out fossil fuel exploitation and avert environmental catastrophe.49 Plaintiffs seek (1) a declaration their

48 See, eg, ClimateCaseChart.com, PUSH Sweden, Nature and Youth Sweden and Others v. Government of Sweden (2020), https://bit.ly/2sNR74K (last visited on 5 July 2022). 49 See, eg, ClimateCaseChart.com, Juliana v. United States (2020), https://bit.ly/34tVa3a (last visited on 5 July 2022). In a second climate change case that went to trial in the United States in October 2019, Attorney General of the State of New York Barbara D Underwood alleges investor fraud by Exxon Mobil Corporation, arising from its having internally utilized, over the preceding decade, a lower cost of carbon to account for government regulation of GHG emissions than the corporation had disclosed publicly. Such understatement allowed Exxon Mobil, among other things, to overstate its financial projections and valuations of long-lived assets. See People of the State of New York, Plaintiff, v Exxon Mobil Corporation, Defendant 1–97 (2018), https://on.ny. gov/2BKMdGN (last visited on 5 July 2022).

46

U. Mattei et al.

Constitutional and public trust rights have been violated and (2) an order enjoining defendants from violating those rights and directing defendants to develop a plan to reduce CO2 emissions. In March 2018, the Ninth Circuit instructed the district court in Oregon to proceed to trial. Oral arguments were made June 4, 2019 in Portland, Oregon, on the (1) interlocutory appeal granted to defendants in December 2018 and (2) motion for preliminary injunction filed by plaintiffs in February 2019 to prevent the federal government from issuing leases and mining permits for extracting coal on federal public lands, leases for offshore oil and gas exploration and extraction, and federal approvals for new fossil fuel infrastructure. In English Canada, according to the reporter, the plaintiffs can argue a public nuisance against Popcar, even if the burden of proof is daunting. In Quebec, the legal action is connected to an infringement of the standards of Loi sur la qualité de l’environment, which enlarges the locus standi. Legal protection of the interests of future generations is difficult because the notion of legal standing is strict. The burden of proving a direct interest and an actual concrete harm makes these kind of legal remedies useless, while application of constitutional law appears the best solution to force government to adopt positive strategies of protection. Another problematic issue is the relationship between commons and contract law. In Question 9 the plaintiffs have no legal remedies against the car manufacturer because they are not its consumers: they do not possess a contract with Popcar. The defense of the commons demands a paradigm shift not only in property law but also in contract law, whose privity doctrine limits the protection of constitutional rights. Present and future generations are damaged by the production and circulation of cars effected by contracts of sale. Furthermore, in the current marketplace, the negative effects of contracts are suffered also by subjects who are external to the related contractual relationship. The Russian reporter suggests, “[A]n international court would provide for more just and effective resolution of ecological disputes concerning all people living in our planet as well as future generations.”

5 Complex Picture of the Commons The answers to the Questionnaire provided by the 13 national reports paint a complex picture. The reporters are aware of the legal transformations implied by the ascent of the commons, even if within their country this category is not regulated or the subject of academic debate. The problems included in the analytic version of the commons and summarized in our Introduction are generally shared by different legal orders. Privatizations spotlight a general weakness of the public domain in relationship to private entities. There is a need to identify inclusive strategies through which to carry out redistribution of resources. The answers to the open questions dedicated to conflicts between property rights and constitutional rights generally admit a balance test, whose result cannot be taken for granted in favor of the private owner. The solutions to the hypothetical cases,

Meeting the Challenge of the Commons: An Emerging Field of Common. . .

47

however, evidence the strength of ownership, particularly if possession results from an unlawful act. The relationship between property and possession is therefore not dynamic, and related constitutional rights struggle for effective protection. Nevertheless, we believe the current legal scenario is not hopeless for the viability of the commons, since it is dominated by a faith in the welfare state (albeit betrayed increasingly). This is the other contradictory result that emerges from comparing the answers to the open questions, where the role of the public domain is criticized, with the solutions to the hypothetical cases, where the infringement of property rights is considered not justifiable because public assistance is assumed capable of fulfilling basic needs. The Achilles heel of the commons concerns legal actions to protect them. All the analyzed legal systems embrace a strict notion of locus standi, and prefer to assign protection of diffused interests to environmental associations or government agencies. Individual actions are thus generally the prevailing solutions, while future generations cannot find—for the time being—any form of protection. The author of this chapter has written elsewhere: The commons are constantly subversive of the status quo; they do not assume, as given, sovereignty, statehood, boundaries, or territorial or property structures but are always reigns of contestation . . . Commoners constantly struggle for a different world, for a radically inclusive alternative to all patterns of capitalist exclusion, both private and public.50

And Caffentzis and Federici have written, “[N]o struggle will succeed in changing the world if we do not organize our reproduction in a communal way and . . . put our lives in common.”51 After all, shouldn’t we all be struggling to forestall—or, failing that, at least to postpone—the Eremocene: the Age of Loneliness?52

References Alexander GS et al (2009) A statement of progressive property. Cornell Law Rev 94:743–744. https://bit.ly/2RdVOPz (last visited on 5 July 2022) Bonefeld W (2001) “Kapital” and its subtitle: a note on the meaning of critique. Cap Cl 25:53–63. https://bit.ly/36IkyUo (last visited on 4 July 2022) Brown Weiss E (1992) In fairness to future generations and sustainable development. Am Univ Int Law Rev 8:19–26. https://bit.ly/2ZRpl3P (last visited on 3 July 2022) Bussani M, Mattei U (2012) Diapositives versus movies—the inner dynamics of the law and its comparative account. In: Bussani M, Mattei U (eds) The Cambridge companion to comparative law. Cambridge University Press, Cambridge. https://bit.ly/39fML7c (last visited 5 July 2022) Caffentzis G, Federici S (2014) Commons against and beyond capitalism. Community Dev J 49: i92–i105. https://bit.ly/2sIzSlu (last visited on 5 July 2022)

50

Mattei and Mancall (2019), p. 740. Caffentzis and Federici (2014), p. i103. 52 See Wilson (2017). 51

48

U. Mattei et al.

Calabresi G, Melamed AD (1972) Property rules, liability rules, and inalienability: one view of the cathedral. Harv Law Rev 85:1089–1128. https://bit.ly/2DJdDOk (last visited on 5 July 2022) Davies M (2012) Persons, property, and community. feminists@law 2:1–21. https://bit.ly/2 Dhk7DL (last visited 3 July 2022) Di Robilant A (2013) Property: a bundle of sticks or a tree? Vanderbilt Law Rev 66:869–932 Emerson RW (2003) Nature 1836. In: Ziff L (ed) Nature and selected essays, 3rd edn. Penguin, London, pp 35–82. https://bit.ly/369KmZh (last visited on 3 July 2022) Ewing J (2017) Faster, higher, farther: the Volkswagen scandal. Norton, New York Farber DA, Carlson AE (2014) Cases and materials on environmental law – American casebook series, 9th edn. West Academic, St. Paul Giardini F, Mattei U, Spregelburd R (2012) Teatro Valle occupato: la rivolta culturale dei beni comuni. DeriveApprodi, Roma Greer A (2012) Commons and enclosure in the colonization of North America. Am Hist Rev 117: 365–386. https://bit.ly/2PxjNYx (last visited on 5 July 2022) Grossi P (1977) An alternative to private property: collective property in the juridical consciousness of the nineteenth century (Lydia G Cochrane tran., 1981). Chicago University Press, Chicago Grossi P (2007) “Un altro modo di possedere” rivisitato. Agric Ist Mercat 1:11–20. https://bit.ly/34 KXeVI (last visited 3 July 2022) Hardin G (1968) The tragedy of the commons. Science 162:1243–1248. https://bit.ly/2DCniWO (last visited 3 July 2022) Harvey D (2004) The “new” imperialism: accumulation by dispossession. Socialist Register 40:63– 87. https://bit.ly/2t4uYzb (last visited 3 July 2022) Harvey D (2011) The future of the commons. Radic Hist Rev 109:101–107. https://bit.ly/2JcVIV3 (last visited on 5 July 2022) Macpherson CB (1999) The meaning of property. In: Macpherson (ed) Property: mainstream and critical positions. University of Toronto Press, Toronto, pp 1–14 Mandel E, Agnoli J (1980) Offener Marxismus: ein Gespräch über Dogmen, Orthodoxie und die Häresie der Realität. Campus-Verlag, Frankfurt am Main Marx K (1844) Comments on James Mill, Élémens d’économie politique. In: Cohen J et al (eds) (2010) Marx & Engels collected works volume 3: March 1843–August 1844. Electric Book Marx K (1890) Capital: a critique of political economy, volume one (Ben Fowkes tran., Reprint ed. 1990). Penguin, London Marx K (1894) Capital: a critique of political economy (David Fernbach tran., Reprint ed. 1991). Penguin, London Mattei U, Mancall M (2019) Communology: the emergence of a social theory of the commons. South Atl Q 118:725–746. https://bit.ly/35DEwjI (last visited 3 July 2022) Mattei U et al (2013) 19th General Meeting: November 15-16, 2013: crisis-induced global transformation in property rights. The Common Core of European Private Law. https://www. youtube.com/watch?v=hab2wb-1FzY (last visited on 5 July 2022) Mattei U, Albanese RA, Fisher RJ (2019) Commons as possessions: the path to protection of the commons in the ECHR system. Eur Law J 25:230–250. https://bit.ly/2Qphhmb (last visited 3 July 2022) Midnight Notes Collective (1990) The new enclosures. Midnight Notes 10:1–100. https://bit.ly/2 EqSjxm (last visited on 3 July 2022) Ollman B (2003) Dance of the dialectic: steps in Marx’s method. University of Illinois Press, Urbana and Chicago Ollman B (2019) The eight steps in Marx’s dialectical method. In: Vidal M et al (eds) The Oxford handbook of Karl Marx. https://bit.ly/2Phg1ml (last visited on 5 July 2022) Ollman B, Smith T (eds) (2008) Dialectics for the new century. Palgrave MacMillan, New York. https://bit.ly/32LVGcY (last visited on 5 July 2022) Ophuls W (1973) The return of Leviathan. Bull At Sci 29:50–52. https://bit.ly/2rSXh3p (last visited 3 July 2022)

Meeting the Challenge of the Commons: An Emerging Field of Common. . .

49

Ostrom E (1990) Governing the commons: the evolution of institutions for collective action. Cambridge University Press, Cambridge Ostrom E (2009) Prize lecture: beyond markets and states: polycentric governance of complex economic systems – the 2009 Nobel Prize Lecture. https://bit.ly/2DQVjTG (last visited on 3 July 2022) Rose C (1986) The comedy of the commons: custom, commerce, and inherently public property. Univ Chic Law 53:711–781. https://bit.ly/37ZoUIf (last visited on July 3 2022) Rose CM (2011) Ostrom and the lawyers: the impact of “governing the commons” on the American legal academy. Int J Commons 5:28–49. https://bit.ly/2DGwGZy (last visited 3 July 2022) Sax JL (1970) The public trust doctrine in natural resource law: effective judicial intervention. Mich Law Rev 68:471–566. https://bit.ly/2F8xpUa (last visited Jan 4, 2020) Sax JL (1980) Liberating the public trust doctrine from its historical shackles. UC Davis Law Rev 14:185–194. https://bit.ly/35d4fhf (last visited on 5 July 2022) Sax JL (2011) Ownership, property, and sustainability [Lecture Delivered March 11, 2010]. Utah Environ Law Rev 31:1–16 Schlesinger RB (1957) Research on the general principles of law recognized by civilized nations: outline of a new project. Am J Int Law 51:734–753. https://bit.ly/34PKpJC (last visited 5 July 2022) Schlesinger RB, Bonassies P (eds) (1968) Formation of contracts: a study of the common core of legal systems, volume 1, general principles of law project of the Cornell Law School. Oceana, Dobbs Ferry (New York) Wilson EO (2017) Half-earth: our planet’s fight for life. Liveright, New York

Property Meeting the Challenge of the Commons in Belgium Delphine Misonne and Marie-Sophie de Clippele

Abstract Belgium features a strong social fabric and tradition of promoting non-profit associations and non-governmental organizations that deal with a variety of common goods. This cultural background has played an important role in the bottom-up political struggles—for instance aimed at reclaiming public spaces—that have been characterized as a resurgence of the commons. This social engagement with the commons is mirrored by a strong scholarly interest spanning many different fields. A recent revision of the Code (art. 3.43) has now made it clear that res communes serve the common good, including that of future generations. The revision of the Civil Code has also highlighted a new understanding of ownership, which art. 3.50 no longer describes as “absolute” as in the Code of 1804. This change is not merely symbolic but signals the will of the legislature—as stated in the preparatory works—to emphasize the social function of property. However, Belgian law does not yet truly embrace the challenges of the commons, which is over all a type of collective acting (agir ensemble), serving a much broader new social purpose. This contribution was last updated in August 2020, with some new references added in 2022.

D. Misonne (✉) · M.-S. de Clippele Université Saint-Louis – Bruxelles, Bruxelles, Belgium e-mail: [email protected]; [email protected] © The Author(s), under exclusive license to Springer Nature Switzerland AG 2023 U. Mattei et al. (eds.), Property Meeting the Challenge of the Commons, Ius Comparatum - Global Studies in Comparative Law 59, https://doi.org/10.1007/978-3-031-25218-1_2

51

52

D. Misonne and M.-S. de Clippele

1 Questionnaire: Part I 1.1

What Legal Categories in Your Legal System May More Closely Correspond to the Notions of the Commons as Deployed in the Introduction?

There is a ‘resurgence of the commons’1 across the world, which can also be noticed in Belgium. Evoking commons today means referring to a large array of collective actions,2 often inspired by social movements advocating a transition towards a more inclusive society. This resurgence can be observed through a myriad of practical examples. One of them was the occupation of the streets in Brussels city center in order to regain access to public space on cars, to the benefit of all, and to recreate large areas where people could walk, meet, and talk. The initiative, in which intellectuals like Ph. Van Parijs were closely involved, succeeded. Other examples are the shared creation of common vegetable gardens, on all kind of patches of unoccupied land; the multiplication of covered markets aimed at selling local products; the rebirth of the social relation to nature, local agriculture, local seeds; the energization of a service-focused digital economy meant to ease collaborative practices; and even people dancing under the arcades of the Cinquantenaire in Brussels, every evening, and reoccupying the public space in a festive or sportive way. What we include here under the word ‘commons’ is not characterized by an object, a territory, an element, but first of all by a behavior, a way of doing.3 There are no commons without commoning, writes S. Gutwirth.4 Their core dimension is not so much the challenge to property as a desire of inclusivity, access, cooperation, taking-back control, an agir ensemble. They all fit within the Ostromian reading grid that the choice to be made between the State or the Market is a false dilemma and that a generative state of mind and way of governance is also possible, under specified conditions. The commoning is generative in the sense that it emerges from a community and because it is a factor of change,5 potentially game-changing through a spill over effect. A related characteristic of Belgium is its strong social fabric—including nonprofit-minded associations, non-governmental organizations, variegated charities (even if not bearing that designation)—that strongly impacts the public arena on environmental protection matters, cultural heritage, equality and equity, sustainability, animal welfare, as well as open access, data protection, transparency, etc.: all of these are potentially commons-related. However, new forms of mobilization have

1

Bollier (2014) and Gutwirth and Stengers (2016). Gutwirth (2018). 3 Gutwirth (2018). 4 Gutwirth (2018). 5 Gutwirth and Stengers (2016). 2

Property Meeting the Challenge of the Commons in Belgium

53

emerged, made possible by social media as a communication vector: people joining together because they share ideas, even without the support of prior structures. Young people joined by thousands came into the streets in 2019 to make their voices heard on climate change and to demand more decisive action from holders of institutional power. Gutwirth6 characterizes the commons and commoning by four dimensions. They are practices that bring together and articulate (1) a group of people (2) who selforganize and give themselves their own rules of operation, conflict resolution, and openness, (3) around a resource that concerns them and gives them collective responsibility, and (4) pursue activities characterized by their generative nature. Such broad approach to the commons does not exist as a legal category in Belgium. However, if we understand the ‘commons’ under the meaning of a shared interest in protecting a shared goal, there is more to say. For example, the legal status attributed to a so-called ‘common heritage’ at regional or federal level needs to be highlighted. Since 1997, it is established by virtue of the applicable law in the Walloon Region,7 inspired by France, that “the territorium is the common heritage of its inhabitants”: « Le territoire de la Wallonie est un patrimoine commun de ses habitants ». Similar language is being used, in the same Region, since 2004, in relation to the environment: ‘The environment and, especially, spaces, landscapes, resources and natural elements (milieux), air, soil, water, biological diversity and balances are part of the common heritage of the inhabitants of the Walloon Region and support their existence, their future and their development.’8 The main impact of such status is an enlargement of the locus standi, to the benefit of the inhabitants, which are credited with the guardianship of a collective interest.9 In the same Walloon region, the applicable law asserts that agriculture is “one of the foundations of our society and forms part of common heritage of the Walloon Region” (Walloon Decree on a Walloon Code of Agriculture, 27 March 2014, art. D.1) and that water is part of the common heritage of the Walloon region (Code wallon de l’eau, art.1). The beneficiaries of such heritage are thus the inhabitants of the region, the regional entity as such, or even mankind. Water, in the Brussels Region, pertains to the common heritage of the Brussels Region and to the common heritage of mankind (Ordonnance-cadre sur l’eau, art.1).10

6

Gutwirth and Stengers (2016) and Tanas and Gutwirth (2020). Walloon Decree of 27 November 1997, establishing a Walloon Code of Land use, town planning and patrimonium. Now replaced by the Code de développement territorial, 20 July 2016, art. D.I.1. See Delnoy (1999), Sambon (2012), and Pâques and Vercheval (2015). 8 Art.1, General part of the Walloon Code for the Environment, Book 1. 9 As mentioned by Jadot (2018). 10 That reference to mankind is standard in international law, when applied to so-called global commons, and is also inserted in Belgian legislation that implement international treaties encapsulating that wording. A Royal decree of 10 January 2016 grants the status of common heritage of 7

54

D. Misonne and M.-S. de Clippele

That very notion of common heritage recently induced a crucial step forward in France, when applied to the environment (and phytosanitary products in particular). The environment is described by the French Constitutional Council as the common heritage of all humans, a status enhancing the rank and value of its protection.11 The constitutional approach to the environment in Belgium is not similar, and the Belgian constitutional Court does already value the environment as being central in society, apt to impact economic imperatives and even fundamental rights, by virtue of the European Court of Human Rights’ case law.12 The possible spill over effect of that notion of common heritage of all humans merits continuing observation. Cultural heritage is also a status in relation to which a specific bond between individuals and a collective goal to the benefit of future generations has been established in recent administrative jurisprudence, with the effect of broadening the locus standi.13 In a case of 2006 dealing with the site of the battle of Waterloo, the Council of State, the highest administrative Court, declared that when a site is to be considered as an exceptional ‘cultural heritage’ all pretention of exclusivity is excluded: Whereas, from the moment a property is recognized as part of the cultural heritage, it cannot, by definition, be considered as being the exclusive thing of any public person, even the owner of the place, nor of a specific community, nor even of the present generation, or neighbors or people in the neighborhood. It is more the interest of those who dedicate themselves to its conservation than a random geographic proximity, that can justify the action for the preservation of the cultural good.14

The collective dimension induced by the concept of heritage broadens everyone’s ‘feeling’ of responsibility with regards to the protected good, on behalf of future generations.15 However, in order to become a plaintiff and to avoid an actio popularis, the individual must still demonstrate a pre-existing active exercise of that duty of care.

mankind to deep-seabed resources that must be explored and managed in the interest of mankind, in order to avoid competition and appropriation for the sake of selective private interests. 11 French Constitutional Council, Union des industries de la protection des plantes, JORF n°0027 of 1.02.2020, text n° 100, ECLI:FR:CC:2020:2019.823.QPC 31 January 2020, JORF n°0027, 1 February 2020, ECLI. 12 Constitutional Court, case C-57/2016, para B.14.1, B.14.3. 13 Council of State, case Rastelli, n°101.950, 18 December 2001. 14 Council of State, case Brassine-Vandergeeten, n° 165.965, 15 December 2006, and n°185.638, 8 August 2008, as mentioned by Jadot (2018). 15 See Jadot (2018).

Property Meeting the Challenge of the Commons in Belgium

1.2

55

Is There Today or Was There in the Past a Concept of the Commons in Your Legal System? In the Affirmative, Is It Statutory, Jurisprudential, Doctrinal or Customary?

When invoking the commons in a national regime, lawyers will classically refer to the old notions one can find in the civil code such as the res communes. They do not correspond to the contemporary approach to the notion of commons. They even mirror and therefore contribute to maintain, as observed by Gutwirth,16 the wellestablished binary approach of the world where elements of nature are things that can be either appropriated or not appropriated, in which case they will only be protected from greed and destruction as far as decided by the lawmaker. However, such concepts can evolve and be the receptacle of the transformation of society. In particular, in Belgium, the book of Civil Code dedicated to the notion of goods was recently overhauled by a Law of 4 February 2020, which entered into force on September 1, 2021 (see below),17 but it remains to be seen if those changes will open the legal regime and transcend the classical divides. The notions of res communes, communal goods, and dependencies of the public domain are worth being highlighted, first as applicable in the current regime and afterwards by considering the possible changes brought by the reform.

1.2.1

Res communes

Until 1 September 2021, Article 714 of the old Civil Code read: « Il est des choses qui n’appartiennent à personne et dont l’usage est commun à tous. Des lois de police règlent la manière d’en jouir. » “There are things that do not belong to anyone and whose use is common to all. Policy rules organize and limit the enjoyment of such use”. The main characteristics of those res communes are that they cannot be physically appropriated, not even by public authority. However, where air, water, or light are not supposed to be owned as a whole, fractions of them can be (like a gallon of water,18 or a quota of carbon emissions), according to case law.19 It is commonly admitted that air, water, high seas, and light pertain to such status. Article 714 led to seminal doctrinal developments in relation to the protection of the environment.20 In a climate case pending before a civil tribunal in Brussels (‘Klimaatzaak’), plaintiffs claim their right to use a stable climate, inter alia based

16

Gutwirth and Stengers (2016). Law of 4 February 2020 related to Book 3 “The goods” of the Civil Code, Moniteur belge, 17 March 2020. 18 Bernard (2014), p. 15. 19 Van de Voorde (2020). 20 On Art. 714, see Carette (1998), Jadot (1995) and Carette (1997). 17

56

D. Misonne and M.-S. de Clippele

upon Article 714 of the Civil Code (“CC”). They insist on the fragility of the resource and on the limitations characterizing the rights of others in making use of the same unowned environmental resource. In the new Civil Code, the wording and content of article 714 is transformed in a new article 3.43 CC mentioning that “common things cannot be appropriated as a whole. They do not belong to anyone and are used for the sake of the general interest, including that of future generations. Their use is shared by all and organized by specific laws.” « Les choses communes ne peuvent être appropriées dans leur globalité. Elles n’appartiennent à personne et sont utilisées dans l’intérêt général, y compris celui des générations futures. Leur usage est commun à tous et est réglé par des lois particulières ». It assimilates essential elements of the settled jurisprudence (the possibility of a partial appropriation) and adds an explicit purpose and condition to their use, both partial or as a whole: the general interest, including that of future generations: a most appropriate precision that is meant to prove useful in climate change related matters. On the debates surrounding that new article, see Sect. 1.3.

1.2.1.1

Spaces Dedicated to a Common Use of All Inhabitants

Some goods, even if owned by a public authority—an open space, a field, an orchard—are legally dedicated to a collective use, shared by the inhabitants of one or more boroughs or villages, through the intervention of Art. 542 of the old Civil Code: « Les biens communaux sont ceux à la propriété ou au produit desquels les habitants d’une ou plusieurs communes ont un droit acquis »: “Communal property is that to whose ownership or product the inhabitants of one or more communes have a vested right” (communes here means a municipality, usually the size of a village). These « biens communaux » or ‘communal property’ relate to goods belonging collectively to the municipality, but offered in community.21 Communal property is not in the public domain, where access is open to all, but is “assigned to members of the community who can enjoy usus and fructus.”22 They are mainly land (moors, swamps, natural pastures, ponds, watercourses), forests or livestock that are left at the collective disposal to “compensate for the low productivity of agriculture.”23 Two categories of communal property can be distinguished: those offering enjoyment in common, and those offering enjoyment on an individual basis. On the one hand, there is the right of grazing, according to which cattle could eat the seeds left on the field after the harvest. This right favoured access to land for those who had none, in order to feed their livestock, while at the same time being of interest to the owner, inasmuch as the livestock left on pasture made manure for the

21

Bernard (2017). Centre d’études sur la coopération juridique internationale (2012), p. 142. 23 Centre d’études sur la coopération juridique internationale (2012). 22

Property Meeting the Challenge of the Commons in Belgium

57

fields. This system for the benefit of both parties (owner and communal user) maintained coherence, peace, and solidarity in the community. But the right to graze fell into disuse following the improvement of agricultural techniques and the rise of capitalism, encouraging the delimitation of plots to make them more productive (cf. the movement of enclosures). Hunting and fishing rights—mainly stemming from customary law—are part of the same logic of limiting the freedom of farmers, coming into conflict with property rights and its attributes.24 On the other hand, there are gleaning rights, scraping, raking, as many rights of use on communal property for individual use, in the case of lots drawn by lot or put up for auction. Their number has, however, drastically declined. Even if these sarts (old-French for communal property) were sold by auction, there was always a ceiling to prevent a villager from buying too many sarts.25 These two relics of ancient law, included in the Civil Code but almost forgotten since, are interesting in that they take up the idea of shared enjoyment, but remain limited in a communal setting and essentially agricultural or forestal. The concept of communal goods is not maintained in the new Civil Code, the ambit of which was to get rid of ‘obsolete’ provisions and depart from a code that was too anchored in rurality. Article 542 might actually have been sucked into the new Article 3.45 of the Civil Code, concerning public property (public and private 24 25

Centre d’études sur la coopération juridique internationale (2012). Constitutional Court, Decision N° 44/99, 20 April 1999, B.5 (free translation): Article 542 of the Civil Code does not have the effect of granting the inhabitants of a commune, in a personal capacity, a right of ownership or a right of enjoyment. Communal property is in fact the property of the communes or sections of communes. By transferring ownership and enjoyment of these communal properties from a section of a commune to a commune, the legislator has not infringed the right of ownership as recognised by Article 16 of the Constitution and by Article 1 of the First Additional Protocol to the European Convention on Human Rights. These provisions cannot, in fact, be invoked for the benefit of persons governed by public law who have been abolished by the legislature;

as well as B.7: Rights of use granted to inhabitants are rights that are exercised in kind and do not as such give rise to the distribution of sums of money. The Court recalls that, as the analysis of the parliamentary documents has shown, the legislature did not intend to interfere with the rights of use exercised ut singuli. The Court further observes that the removal of the exclusive nature of those rights is not necessarily subject to compensation. Indeed, such a measure does not constitute expropriation within the meaning of Article 16 of the Constitution, since it is not a transfer or deprivation of ownership within the meaning of Article 1 of the First Additional Protocol to the European Convention on Human Rights. Moreover, in view of its aim of equality and solidarity, the legislature does not violate articles 10 and 11 of the Constitution by deciding not to reserve user rights for the inhabitants of the former sections of communes. The Court therefore denies any exclusive ownership of communal property, which is a collective with common rights of enjoyment.

58

D. Misonne and M.-S. de Clippele

domain), but nothing is less certain and the abolition of communal property without any transitional measures could prove problematic, particularly with regard to some rights of enjoyment of local residents.26

1.2.1.2

Open List of Goods in the Public Domain

The Civil Code provides an open list of goods dedicated to a collective use and, therefore, that must not be privatized (see Sect. 1.5). They are owned by the State and pertain to the public domain, as a ‘dependency.’ Art. 538 of the old Civil Code asserts that “paths, roads and streets at the charge of the State, navigable or floating rivers and streams, shores, sea shores, harbours, roadsteads, and generally all parts of the Belgian territory that are not subject to private ownership are considered as dependencies of the public domain.”27 The list is interpreted extensively, and includes railways, public libraries, town parks, cemeteries, etc.28 Openness of seashore and seaside is an established feature of the Belgian sealine, at least as far as beaches are concerned. There is no possibility of entire privatization of a beach (even if restrictions of access can be imposed, as observed during the sanitary crisis where people now need to book their place for lying on the beach). One might observe interesting similarities between that provision and the public trust doctrine in common law, the fundament of which rests on the duties of the State to protect seashores or, among other resources, intertidal zones. Strangely enough, the new Civil Code does not list the public goods that are dedicated to a collective use, like seashores. According to the initial draft proposal for the new Civil Code, these several articles were supposed to be absorbed in the article defining public property, now art. 3.45 that mentions “the public goods are 26 In the first draft of the new Civil Code, the drafters had included a table of concordance showing that former article 542 is included in draft article 3.59 (which became 3.45, but which was also substantially modified between the first draft and the adopted version); see Draft law inserting Book 3 “Property” into the new Civil Code, Parl. Doc., Ch., sess. 2018–19, 31 October 2018, No. 3348/ 001, p. 603. 27 Art. 538. “Les chemins, routes et rues à la charge de l’Etat, les fleuves et rivières navigables ou flottables, les rivages, lais et relais de la mer, les ports, les havres, les rades, et généralement toutes les portions du territoire belge qui ne sont pas susceptibles d’une propriété privée, sont considérés comme des dépendances du domaine public.” See also Art. 539. “Tous les biens vacants et sans maître, et ceux des personnes qui décèdent sans héritiers, ou dont les successions sont abandonnées, appartiennent au domaine public.” (“All vacant and unmanaged property, and that of persons who die without heirs, or whose estates are abandoned, belong to the public domain”). Art. 540. “Les portes, murs, fossés, remparts des places de guerre et des forteresses, font aussi partie du domaine public.” (“The gates, walls, ditches, ramparts of war squares and fortresses are also part of the public domain”). Art. 541. “Il en est de même des terrains, des fortifications et remparts des places qui ne sont plus places de guerre; ils appartiennent à l’Etat, s’ils n’ont été valablement aliénés, ou si la propriété n’en a pas été prescrite contre lui.” (“The same applies to land, fortifications and ramparts of squares that are no longer places of war; they belong to the State, if they have not been validly alienated, or if ownership has not been prescribed against it”). 28 Bernard (2014), p. 48.

Property Meeting the Challenge of the Commons in Belgium

59

part of the private domain, unless they are assigned to the public domain” (Les biens publics appartiennent au domaine privé, sauf s’ils sont affectés au domaine public).29 However, it is not yet clear what the suppression of these lists means, or if it might open the way to lessen the protection offered by the public domain regime to these goods, especially regarding that the public domain itself has been redefined (see Sect. 1.5).

1.3

Is the Commons Today a Topic of Academic Debate in Your Legal System—and in the Affirmative in What Context?

Scholarship is interested in the notion of commons and recently embraced it from many disciplinary angles (law, economy, philosophy, etc). Political parties also discuss the concept and its integration into constitutional law.30 Society and social movements are influenced by the seminal bestsellers of Dardot & Laval,31 Coriat,32 Bollier,33 etc, and by the literature on transition or by film, such as the 2015 documentary “Demain” by Cyril Dion and Mélanie Laurent. In September 2022, the Journal des Tribunaux, the most read legal journal among practitioners and scholars in French-speaking Belgium, published a special issue on the commons with papers from the authors of the present contribution. Delphine Misonne wrote a paper on the environmental commons drawing links between notions like ecological prejudice and ecocide, and Marie-Sophie de Clippele focused on cultural commons, analysing the distinciton between material and immaterial commons, with a strong focus on participatory governance.

1.3.1

The Civil Code

By contrast, reforming the Civil Code on the chapter of goods did not provoke a large debate on the need to include a new category of ‘commons,’ besides the existing notions of public and private goods. For the revision of the chapter on liability of the same Civil Code, on the contrary, an intense debate was held on the lack of recognition of “ecological damage,” a notion still absent from Belgian civil law.

29 Draft law inserting Book 3 “Property” into the new Civil Code, Parl. Doc., Ch., sess. 2018–19, 31 October 2018, No. 3348/001, p. 603. 30 See Piron (2017). 31 Dardot and Laval (2014). 32 Coriat (2013). 33 Bollier (2014).

60

D. Misonne and M.-S. de Clippele

Written in 1804, the Civil Code needed to be redesigned in order better to fit contemporary issues. The process of revision was launched by the Minister of Justice and entrusted to a select group of experts. On 8 December 2017, a public consultation was undertaken in order to make the new proposals public and allow anyone to react, within the deadline of 1 February 2018. The process is fed by a comparative approach, taking due account of recent developments in The Netherlands, Québec, and France as well as, in a minor way, in Germany, Switzerland, and Spain. The new article 3.43 is dedicated to both res communes and ‘res without owner.’ For the res communes, inspiration was found in the Civil Code of Québec.34 The so-called things without owner, other than the res communes, can be appropriated, as was the case in the former version of the Civil Code.35 Animals, however, are now distinct from the status of ‘things,’ and pertain to a bespoke category, distinct from the status of persons (art. 3.39). The approach to the res communes rests with the need to settle their relation to appropriation, even though these ‘common things’ are not defined. Because they cannot be globally appropriated, they remain res (things) and do not pertain to the category of goods. The category is often raised in relation to the ecological crisis and the scarcity of resources, in order better to frame the recognition of subjective rights to the protection of the environment.36 In the initial draft proposition, there was no reference to any literature on the commons. However, the initial proposal was amended, in order to add the interest of future generations in the new article 3.43.37 The legislator gave the following explanation to this addition: The current evolution of society is such that more and more attention is being paid to common or collective property. Climate change and a growing ecological and social awareness among the population are pushing more and more citizens to jointly manage goods such as seeds, knowledge or land use, taking into account the interests of future generations. Therefore, it would be appropriate, also in the context of property law, to specify that common things are used with attention to the interests of future generations.38

34

With the mention of one main doctrinal source only, from Paris (Chardeaux 2006). See the second paragraph of article 3.43: “Things, movable and immovable, without owner either they never had one, or their owner has relinquished ownership, may be appropriated in accordance with Article 3.59, § 2, for movables and in Article 3.66 for immovables” (« Les choses, mobilières et immobilières, sans maître, soit qu’elles n’en aient jamais eu, soit que leur maître ait renoncé à la propriété, peuvent être appropriées conformément à l’article 3.59, § 2, pour les meubles et à l’article 3.66 pour les immeubles »). 36 With references to Carette (1998) and Jadot (1995). 37 Article 3.57 of the initial draft proposal read as follows: “The common things cannot be appropriated in their entirety; they belong to no one and their use, common to all, is regulated by particular laws” (« Les choses communes ne peuvent être appropriées dans leur globalité; elles n’appartiennent à personne et leur usage, commun à tous, est réglé par des lois particulières »). 38 Doc. parl., Ch., sess. 2019–20, n° 0173/002, p. 5. 35

Property Meeting the Challenge of the Commons in Belgium

61

The addition is clearly in tune and influenced by the practices of commoning, finding legal recognition for the first time, in a provision that was not supposed to be necessarily the most appropriate.39 In scholarship, a new concept emerged in 1995, thanks to the academic work of Professor François Ost: the ‘transpropriation,’ shedding light on the limits to private property, that is by far not as absolute as sometimes thought when reading Article 544 of the old Civil Code (usus, fructus, abusus).40 That concept is frequently used in legal theory in order to discuss the limits to property, but has not yet formally emerged in more operational discussions. However, in the new Civil Code property is no longer described as an absolute right: the term ‘absolute’ is deleted. Art. 3.50 states that the right of ownership provides the owner with the right to use directly what is ‘object’ of its title, to use it, and to deal with it, adding that by principle, “the owner enjoys the completeness of its prerogatives, subject to the restrictions imposed by the law or the rights of third parties.”41 When drafting article 3.50, the legislator meant to be operational and not conceptual. Parliamentary documents mention that property right must be framed in accordance to its social function, as it “corresponds to the evolution of property rights over the last decades, with an increasing emphasis on the social impact of the exercise of property rights”.42 Property should, in other words, be exercised according to its social function, meaning it can be limited by other legal rules or by the rights of others. Concerning those ‘others,’ the legislator understands them in a broad sense, referring to “all rights that third parties may have over the property of others.” These ‘third parties’ are also broadly defined and include “not only persons who have a contractual relationship with the owner (tenant, emphyteutic lessee, usufructuary, holder of a servitude, borrower, superficiary, etc.), but also third parties with whom he has no legal relationship (authority, neighbours, etc.).”43 However, the legislator doesn’t seem to interpret widely these limitations to property, mentioning in his parliamentary documents the specific rules of the abus de droit (abuse of right) and trouble de voisinage (unbalance between neighbors and the use of their own rights). Time will tell what impact this new definition of property might have on the concept itself, perhaps opening towards a more inclusive model, where the commons might gain legal recognition.

39

Gutwirth and Stengers (2016). Ost (2003). 41 See the French version: “Le droit de propriété confère directement au propriétaire le droit d’user de ce qui fait l’objet de son droit, d’en avoir la jouissance et d’en disposer. Le propriétaire a la plénitude des prérogatives, sous réserve des restrictions imposées par les lois, les règlements ou par les droits de tiers. » 42 « correspond à l’évolution du droit de propriété intervenue au cours des dernières décennies, mettant sans cesse davantage l’accent sur l’impact social de l’exercice de la propriété », Projet de loi portant insertion du Livre 3 « Les Biens » dans le nouveau Code civil, op. cit., p. 126. 43 Projet de loi portant insertion du Livre 3 « Les Biens » dans le nouveau Code civil, op. cit., pp. 127–128. 40

62

D. Misonne and M.-S. de Clippele

1.3.2

The Environment

Academic debates occur periodically on the right to water. In 2014, a request was made before the Senate to change the Constitution in order to insert a ‘right to water and energy,’44 but with no success so far.45 There are also debates on the conditions of public-private partnerships. This clearly constitutes a new trend in Belgium, including in relation to the management of public services (a water treatment facility) or the conservation of common heritage (War Heritage Institute46), or the management of prison facilities. However, some critics fear it might hamper the general interest such public goods are supposed to follow, by being too much subject to profitable concerns. Academics seek more radical innovative legal thinking around the commons. Serge Gutwirth and Alessia Tanas call for “the possible legal protection of commoning, while hoping that this kind of sustainable and generative action can begin to exist more than marginally in law”.47 Their recent paper analyses this commoning through three case studies: the concept of transpropriation, the ‘civic uses’ (usi civici) in Italian law, and the legal personality of the Whanganui river in New Zealand. They conclude that: “it appears that the law modestly and marginally opens itself to the recognition of the networks of interaction and interdependencies among all living beings that inhabit lands, rivers and territories and to see these as living places”.48 Research in human and social sciences is dedicated to the worldwide movement of Zones à Défendre,49 which also provokes academic discussion and citizen initiatives against the privatization of open (public) spaces. Community Land Trust, a new tool in the spirit of the commons, is experimented in Brussels and in Leuven (Flanders). According to Professor Nicolas Bernard: [T]he community land trust (CLT) is a fertile path towards a solution insofar as it immunises the land from individual ownership and grants time-limited property rights to the housing erected upon it. In addition, the CLT provides for the restitution to the community of the added value generated by the resale of this title, thereby curbing speculation, and is managed through highly participatory processes. For these reasons, by withdrawing land from the sway of market logic, the CLT may be seen as a paradigmatic current illustration of common property theory (CPT) in the field of housing.50

Doctoral research is also taking hold of the notion of commons, for instance in their relevance for the governance of seeds.51

Document Sénat – Proposition Anciaux - 6-15/1 - SE 2014. For more information, see de Broux and Portelli (2014). 46 https://bit.ly/3gf3HNA. 47 Tanas and Gutwirth (2020). 48 Tanas and Gutwirth (2020). 49 See, inter alia, De Clerck (2018). 50 Bernard (2018a). 51 Frison (2018). 44 45

Property Meeting the Challenge of the Commons in Belgium

1.3.3

63

Data and Intangibles

One of the typical areas in which the concept of the commons emerges is that of the intangible. Much less preoccupied by the scarcity of the resources than for environmental or cultural matters, intangibles are confronted with other challenges when regarded as a potential growing field of the commons. Professor Alain Strowel explores the “paradox that commons on intangibles require some form of appropriation”.52 For him: With the movement of open source software (and free cultural works), the property on the works is used to ensure free use. Similarly, the insurance of a free use of data, potentially a data common, relies on an adequate delineation of (intellectual) property, for instance of the mandatory exceptions to the database right.53

1.4

Is There Any Kind of Public Property in Your Legal System That Is Absolutely Not Inalienable?

In the Belgian legal system the concept of public domain implies that the goods part of the public domain are not alienable. However, should there be a decision (express or even tacit) from the ruling authority, i.e. the public owner (the Government, whether federal or from a federate state) to deallocate the good from the public domain, it loses this status and becomes alienable. The inalienability is therefore relative and not absolute. The other form of public property—private domain, which counts for the majority of the goods in public hands—doesn’t suffer from the inalienability rule. In other words, there is no kind of public property that is absolutely not alienable. It remains always possible to dispose of public property.

1.5

Are There Remedies in Your Legal System for Someone to Challenge in Court a Government That Decided Privatization of the Commons?

Several remedies, discussed below, exist in the Belgian legal system to challenge privatization.

52 53

Strowel (2018). Strowel (2018).

64

D. Misonne and M.-S. de Clippele

1.5.1

Privatization of the Public Domain or Its Dependencies

If a good is part of the public domain, it cannot be transferred to a private actor (inaliénabilité du domaine public). However, public owners may unilaterally decide to deallocate the public domain and this may be challenged by the supervising authority if there is one. See Sect. 1.4 above. For the same reason, the privatization of a dependency of the public domain is normally not allowed, or at least not permanently. For instance, the coast in Belgium is public domain belonging to the Flemish Region (up to the “low tide line,” after which it is public domain from the Federal State) and cannot be privately owned. Temporary concessions may be granted by the public owner, provided they can be revoked ad nutum and are only temporary. Beach concessions may be granted to a coastal municipality or even to a private operator, as long as they use them in conformity with the allocation of the public domain (in the general interest) and that such use remains temporary.54 However, the new Civil Code now presents the possibility of granting rights in rem (droits reels) on public domain, therefore moving further away from a notion of inalienability. In other words, it will be possible to grant perpetual rights in rem on public domain (emphytéose and superficie) and not only temporary concessions. This may raise substantial difficulties as it is not clear if the public authority granting such a perpetual right may end it at will (ad nutum) as has always been the case for temporary concessions. In the absence of clear wording of the law, it might therefore be recommendable to specify in the act granting such permanent rights in rem what sanctions shall be applied were the benefactor not to conform with the allocation of the public domain. The new article 3.45 doesn’t offer a clear definition of the public domain, lessening the legal protection of its specific regime. Article 3.45 simply states that: Public property belongs to the private domain, unless they are in the public domain. Property in the public domain is not likely to be owned by acquisitive prescription by another private or public person and may not be the subject of an accession in favour of any other private or public person, or of any other original mode of acquisition. However, a personal or real right of use may exist over a public domain property as long as the destination of this property does not preclude it. (Les biens publics appartiennent au domaine privé, sauf s’ils sont affectés au domaine public. Les biens du domaine public ne sont pas susceptibles de prescription acquisitive par une autre personne privée ou publique et ne peuvent faire l’objet d’une accession en faveur de toute autre personne privée ou publique ou de tout autre mode originaire d’acquisition. Toutefois, il peut exister un droit personnel ou réel d’usage sur un bien du domaine public dans la mesure où la destination publique de ce bien n’y fait pas obstacle.)

54 See the Decision from the Flemish Government of 26 April 1995 concerning beach concessions, Moniteur belge, 28 August 1995.

Property Meeting the Challenge of the Commons in Belgium

65

The initial draft version was more explicit on defining the public domain, referring to their allocation (affectation) to the public service or to the general use.55 It seems when adopting the new article 3.45 the legislator wanted to favor a more “profitable” view of the public domain and reduce the protective regime specific to these goods in the public domain (less inalienable, no more ‘precarious’ and only temporary real rights on the public domain). Yet the absence of any definition or specific legal regime leaves it to case law and doctrine to specify the public domain (as it used to be). It could, however, liberate the notion and allow private owners de facto—and almost de jure—to own public domain.

1.5.2

Privatization of a res communes

Privatization of common things should in theory not be possible as they belong to no one and cannot be owned as a whole (by contrast with things without any owner (choses sans maitre). Impacts on such res communes are being argued in litigation on climate change policies, where plaintiffs argue of a restriction to their right of use of the climate, which is not supposed to be owned (and destroyed) by others due to the fragility of the resource and the need to maintain it for the sake of the general interest and future generations. This avenue was already tested, with success, in tort liability cases concerning a river, deforestation, bird-hunting, and disposal of dangerous waste.56 The uses made by some make the common thing less suitable for the use of others. The difficulty is the locus standi. However, access to justice on environmental matters has been broadened considerably under the impact of the 1998 Aarhus Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters and associated case law.57 The challenger can consolidate its claim by invoking Article 23 of the Belgian Constitution: one of the obligations of the legislator is to guarantee the protection of (subjective) fundamental social, economic, and cultural rights, which entails a principle of standstill. This would especially be the case if measures were already taken by the legislator to implement these rights and if privatization risks diminishing the level of protection already acquired (standstill-doctrine) without

55 First sentence of Article 3.59 of the draft proposal (the rest remains unchanged): “Goods that are explicitly or implicitly assigned either for general use or for a public service constitute the public domain.” (« Les biens qui sont affectés explicitement ou implicitement soit à l’usage de tous, soit à un service public, constituent le domaine public »), Projet de loi portant insertion du Livre 3 « Les Biens » dans le nouveau Code civil, Doc. parl., Ch., sess. 2018–19, 31 October 2018, n° 3348/001. 56 Van de Voorde (2020). 57 Law of 17 December 2002 portant assentiment à la Convention sur l’accès à l’information, la participation du public au processus décisionnel et l’accès à la justice en matière d’environnement, et aux Annexes Ire et II, faites à Aarhus le 25 juin 1998, M.B., 24 April 2003, Entry into force on 21 April 2003.

66

D. Misonne and M.-S. de Clippele

being justified by a motivation to meet the general interest.58 However, the conditions set for meeting the threshold of the standstill doctrine are extremely severe and rarely met. Its main impact is on process, at it forces the lawmaker to motivate possible changes in the level of protection. In environmental matters, when privatization causes a risk for the environment (eg, a forest is sold to a private company), an injunction from the tribunal of first instance (action en cessation) may be requested as a matter of urgency by an environmental organization or a commune (and its representatives).59 The claim must be based on the infringement of environmental legislation or on a threat of such violation. Important changes also occur in order to ease the protection of cultural heritage. The Belgian Council of State (Conseil d’État) admits, for example, that organizations whose purpose lies in the protection of cultural heritage may have standing, as well as a person who has personally and during a certain duration held at heart heritage conservation.60 The extension of standing—a positive sign to recognise the role of the community with regards to cultural heritage—does not, however, necessarily mean the merits will be heard. Concerning civil action, a new paragraph has been added in the Judiciary Code granting standing to some organizations acting for the collective interest of the protection of fundamental rights. Article 17 § 2 of the Belgian Judicial Code reads: The action of a legal person, aimed at protecting human rights or fundamental freedoms recognized in the Constitution and in international instruments binding on Belgium, is also admissible under the following conditions: 1° the corporate object of the legal person is of a particular nature, distinct from the pursuit of the general interest; 2° the legal person pursues this object in a durable and effective manner; 3° the legal person acts in justice within the framework of that corporate object in order to ensure the defense of an interest related to that object; 4° only a collective interest is pursued by the legal person through its action.61

58

Hachez (2008). Jadot (2018) and Tulkens and Pijcke (2007). 60 See the decisions of the Council of State n° 165.965 of 15 December 2006 and n° 216.504 of 25 November 2011, where the judge considers that no rule of law limits the introduction of an action to the inhabitants of the neighbourhood alone, that the interest in protecting the heritage is sufficient if the person shows that he or she has personally committed himself or herself for a certain period of time to the protection of the heritage. « l’intérêt de se dévouer à la conservation du bien est un intérêt personnel suffisant, plus que le critère de proximité géographique aléatoire, pour justifier l’action pour assurer la préservation du bien », C.E. n°165.965 du 15 décembre 2006, p. 15 et C.E. n° 216.504 du 25 novembre 2011, p. 9, « c’est-à-dire avoir consacré du temps et de “l’intérêt” au bien patrimonial concerné », C.E. 2011, p. 8; see Jadot (2018). 61 Article 137 of the Law of 21 December 2018 laying down several provisions relating to justice, Moniteur belge, 31 December 2018: 59

Property Meeting the Challenge of the Commons in Belgium

67

This new paragraph constitutes a “small revolution” and confirms a “long sequence of uncertainties and developments” in case law regarding the possibility of bringing a collective interest action before courts and tribunals.62 Finally, non-judicial means are always an option and consist of campaigning against such measures in the media and on the public and political scene in general.

1.6

Are There Remedies in Your Legal System for Someone to Challenge in Court a Government That Decided Nationalization of the Commons?

Considering the commons in a broader sense than the mere res communes of Article 3.43 of the new Civil Code, nationalization of any private or even publicly owned good (including goods that may be considered as commons) occurs in Belgian law through public utility expropriation (expropriation d’utilité publique). If a public authority expropriates an owner, it will afterwards become owner itself and then nationalize the good if necessary. If a public authority proves there is a public utility or general interest justifying its action, it has the power to expropriate the owner, provided due compensation is granted. Article 16 of the Belgian Constitution, already adopted in 1831, protects the owner against unlawful expropriation and sets out the rule of fair compensation: Nul ne peut être privé de sa propriété que pour cause d’utilité publique, dans les cas et de la manière établis par la loi, et moyennant une juste et préalable indemnité.

The procedure for expropriation is three-fold, starting with an administrative phase, a negotiation phase, and finally the procedural phase (if no agreement is found between the authority and the owner during the negotiations). During these three periods, the owner may challenge the decision to expropriate, be it during the negotiation or before the civil courts. As such, the owner may counter the nationalization of the commons. However, if the public authority wants

L’action d’une personne morale, visant à protéger des droits de l’homme ou des libertés fondamentales reconnus dans la Constitution et dans les instruments internationaux qui lient la Belgique, est également recevable aux conditions suivantes: 1° l’objet social de la personne morale est d’une nature particulière, distincte de la poursuite de l’intérêt général; 2° la personne morale poursuit cet objet social de manière durable et effective; 3° la personne morale agit en justice dans le cadre de cet objet social, en vue d’assurer la défense d’un intérêt en rapport avec cet objet; 4° seul un intérêt collectif est poursuivi par la personne morale à travers son action. 62

Romainville and de Stexhe (2020), p. 189.

68

D. Misonne and M.-S. de Clippele

to nationalize a res communes (i.e. a common thing without owner), some options do exist, even though less clear. If it would concern, for example, the nationalization of the sea outside of its territorial waters, this violates the UN Convention on the Law of the Sea of 1982, which Belgium ratified on 13 November 1998, and would be challenged before the International Tribunal of the Law of the Sea or through arbitration (some decisions have already been taken by the Permanent Court of Arbitration concerning other countries). The legislator may also decide to requalify certain res communes, by adopting new legislation modifying the former and welcoming some res communes in its own hands.63 This new legislation may be challenged through the classical procedure before the Constitutional Court, provided it violates one of the constitutional rules the Court is competent to adjudicate. Finally, in the hypothetical nationalization of light or air or other res communes that are not part of the public domain and therefore not partly appropriated already by a public owner, an action on the basis of article 3.43 of the new one could be considered. This article grants what Johan Van de Voorde calls an “inclusive subjective right” to challenge such a decision before the civil courts, by introducing a legal action against an unlawful situation (action en dénonciation d’illicéité).64 This inclusive subjective right allows anyone to ensure the collective use of common things. However, legislating these aspects (like when imposing an emission’s trading scheme or imposing environmental permits regulating the use of the ambient air) cannot be considered nationalization. The Constitutional Court accepts that the use of such commons is administered by the public authority.

1.7

To What Extent Is Private Property Considered a Fundamental Right in Your Legal System, and What Other Constitutional Rights Could Defeat It in a Balancing Test?

Private property was enshrined in the first version of the Belgian Constitution in 1831, under Article 16 (part of the Second Title of the Constitution concerning the Belgians and their Rights (Des Belges et leurs droits: their fundamental rights):

63

This may be the case, for example, in the Walloon Code for Water, where Article D.34 states: “The minor bed of a non-navigable watercourse is presumed to belong to the manager designated under section D. 35 [a public owner], and is in the public domain.” (« Le lit mineur d’un cours d’eau non navigable est présumé appartenir au gestionnaire désigné en vertu de l’article D. 35, et relève du domaine public »). 64 Van de Voorde (2020), pp. 274–278.

Property Meeting the Challenge of the Commons in Belgium

69

Nul ne peut être privé de sa propriété que pour cause d’utilité publique, dans les cas et de la manière établis par la loi, et moyennant une juste et préalable indemnité.

Even though the article refers only to the public utility expropriation, it is considered as the basis for the recognition of private property as a fundamental right. Article 544 of the old Civil Code also defined property right and mentions the legal limits this so-called absolute right may suffer: La propriété est le droit de jouir et disposer des choses de la manière la plus absolue, pourvu qu’on n’en fasse pas un usage prohibé par les lois ou par les règlements.

In that respect the new version of Article 3.50 of the new Civil Code seems clearer: Le droit de propriété confère directement au propriétaire le droit d’user de ce qui fait l’objet de son droit, d’en avoir la jouissance et d’en disposer. Le propriétaire a la plénitude des prérogatives, sous réserve des restrictions imposées par les lois, les règlements ou par les droits de tiers.

Private property is indeed not absolute and must take other interests into consideration. By contrast with other countries that refer to the social function of property or its need to be balanced with obligations or other public or collective interests, this is not explicitly mentioned in Article 16 of the Belgian Constitution, but timidly in Article 544 of the Civil Code (when the article was drafted in 1804 it was not supposed to entail large limitations to the ‘absolute right of property’ such as there are now), and more frankly in the new Article 3.50. But this doesn’t mean there is no balance to be struck. Case law demonstrates that various interests can legitimately pretend to be balanced against property right and justify its limitation. In recent decades this proportionality test has extended under the influence of the European Court of Human Rights. Belgian judges integrated this balancing test into their own judicial control, confronting the individual interest of the owner to collective interests (eg, environment, cultural heritage, urban law, housing). These collective interests are often part of the economic, social, and cultural fundamental rights as enshrined in Article 23 of the Belgian Constitution (right to work, social security, right to decent housing, right to a healthy environment, right to cultural and social enjoyment, right to social help for families) and are as such also balanced against property. There is, however, no need for these interests to be recognized fundamental in order to strike a fair balance with property right.

70

1.8

D. Misonne and M.-S. de Clippele

Private Property Is an Institution Aimed at Allowing Exclusion from Land. Is There Any Limit to Such a Power of the Owner to Exclude, Justified by a Right of Access to the Private Non-owner?

There are important limits indeed. First, the right to enclose (Art. 647 of the old Civil Code) is not absolute. The public can enjoy a right to pass on private land, under conditions (Art. 682 of the old Civil Code). These provisions are now found in Art. 3.61 of the new Civil Code.65 Such a public right to pass on private land can either be established by the public authority—by a regulatory decision (at local level, with an appeal procedure before the Government; see the Walloon Decree of 6 February 2014 on vicinal roads66 or the Flemish Decree of 3 May 2019 on vicinal roads67) or by a convention between the owner and the local authority (see Art.10 of the same Walloon Decree)—or acquired by public easement, as a consequence of the regular passage by any person of the general public, during the last thirty years. The use of the path (accessible to all) is clearly distinct from the ownership of the piece of land on which the right to pass has been granted actively (though designation, inscription on an atlas) or passively (through regular passage by non-owners). According to the Walloon Decree of 2014 on vicinal roads, ownership of the piece of land on which the passage occurs can be transferred to the local authority, under certain conditions. The maintenance of the right to pass on private land (and as a consequence of a ‘right to walk through’) is an important dimension of ‘the resurgence of the commons’ in Belgium. For long, but also more recently, due to a renewed interest in all forms of slow mobility at large (eg, the ‘Ravel’ of the transformation of old railways and riverbanks into cycle paths). Still, the issue of passage on private land, for the mere sake of walking or enjoying the benefit of a shortcut, remains contentious. On the countryside, private owners still install fences in order to bar the way, or decide to plough a site and make it disappear, even when the path was used for decades by the general public. Intimidation cases are not rare (‘interdiction,’ ‘no passage,’ ‘traps,’ ironwire, etc). Even in urbanized areas, problems occur at the occasion of administrative procedures, where town-planning projects cause a threat to long-recognized (or onthe-verge-of-being forgotten) rights to pass. The role of citizens in the protection of such ‘commons’ or ‘common heritage’ has long been decisive. At local level, non-governmental associations aiming at the See § 1: “Any owner may fence off his plot in accordance with the legal and regulatory requirements up to the limit of the plot without infringing the rights of third parties” (« Tout propriétaire peut clôturer sa parcelle conformément aux prescriptions légales et réglementaires jusqu’à la limite de celle-ci sans porter atteinte aux droits de tiers »). 66 Decree of 6 February 2014 relatif à la voirie communale, Moniteur belge 4 March 2014. 67 Decree of 3 May 2019 houdende de gemeentewegen, Moniteur belge 12 August 2019. 65

Property Meeting the Challenge of the Commons in Belgium

71

protection of cultural heritage, including these rights to pass and to walk, exist for decades and can be quite successful, starting by inviting people to keep walking in order to entertain the servitude. They play a decisive role of guardian and watchdog, especially where the local public authority remains deficient or where the citizen’s facing such threats is less well informed. The importance of public participation with regard to the protection of the right to pass has now been explicitly recognized by law. The Walloon Decree of 2014 on vicinal roads reckons public participation, either through public enquiries or via the constitution of specific ad-hoc local experts’ groups, in order to facilitate inventories and to enhance the protection of existing rights. That new Act enhances the protection of vicinal paths, as it makes their suppression more difficult. Also, the Flemish Decree on vicinal roads of 3 May 2019 governs all public roads managed by local authorities, no matter their origin. It has been prone to some critics on its adoption process and on its new rules, less clear than they were supposed to be.68 Still, even if the protection of public paths is robust, this does not mean these paths cannot be displaced, in due respect of both procedural and substantial conditions. See more information on this at www.sentiers.be. Second, and more importantly, Article 3.67 § 3 of the new Civil Code introduces some sort of right of access, inspired from Dutch law (article 5:22 of the Dutch Civil Code) but also known in some countries as a “right to roam” (eg, Sweden, Scotland), understood as a ‘tolerance of the owner’.69 The new provision permits the following: Where an unbuilt and uncultivated immovable good is not fenced, anyone can go there unless it causes damage or harm to the owner of this parcel or if the latter has made it clear that access to the parcel is prohibited to third parties without his authorization. Whoever makes use of this tolerance shall not invoke neither Article 3.26 nor Article 3.59. Lorsqu’un immeuble non bâti et non cultivé n’est pas clôturé, quiconque peut s’y rendre, sauf si cela engendre un dommage ou nuit au propriétaire de cette parcelle ou si ce dernier a fait savoir de manière claire que l’accès au fonds est interdit aux tiers sans son autorisation. Celui qui fait usage de cette tolérance ne peut invoquer ni l’article 3.26 ni l’article 3.59.

The above articles refer to the right to acquire ownership through occupation (usucapio) and to acquire ownership of found movables on another’s parcel, which couldn’t apply in case of such access. This tolerance is not limited to neighbours but is open to anyone, without providing further explanation, which in turn might cause some difficulty for the courts when applying such a right of access.70

68

Draye (2020). Van de Voorde (2020). 70 Bernard and Defraiteur (2020). 69

72

D. Misonne and M.-S. de Clippele

2 Questionnaire: Part II 2.1

Housing71

John, Orri, Sekela and Satoshi, desperate to find a home at an affordable cost, together with their families (including several children) inhabit homes in a development project, suspended due to delayed authorizations. The four friends and their families work on both the buildings and the land to enhance their living conditions (for instance, by painting the walls and adding a little garden). After a couple of months, the legal manager of the land discovers the four families and attempt to remove them. The families refuse to leave and the manager brings a claim against them.

2.1.1

Analysis of the Case

Various elements have a certain weight in favour of the occupants in the balance of interests that the judge must inevitably reach in this type of case (for the right of ownership is also recognised by the Constitution):72 let us single out three of them.73 First, the public status of the owner must be pinpointed. It is difficult for a public authority to point to the occupants’ fault when it has itself failed to allocate its property to some use. The parallel is even more cruel when this public owner’s mission is to house people. The public service mission that is supposed to drive the public authority obligates the authority to play an exemplary role, a duty that forces it to look at its own wrongs first. More generally, the authorities’ powerlessness to provide a socially sufficient housing supply in proportion to the demand can justify, to a certain extent, the fact that people then occupy property belonging to these same authorities in “compensation.” Another element that plays to the occupants’ advantage is the lack of any plans (on the part of the owner) for the property being squatted. As a rule, property left vacant is not left vacant for a particular reason (or one to which the owner can admit). Most of the cases of vacancy are the result of negligence or real estate speculation. Such situations last a long time, which confirms that the owner has no real need to use the property. Consequently, if everything is weighed on the scales, the prejudice (stemming from the occupancy) that is sustained by an owner who, in any event, has no immediate need for her property, often seems much less serious than the prejudice that an expulsion would generate for the squatters (who are actually living on the premises).

71 This first case was answered by our colleague Nicolas Bernard, professor of private law at Université Saint-Louis—Bruxelles. 72 Art. 16. 73 Legal principles applicable to squatting are less likely to be found in the law than in court rulings.

Property Meeting the Challenge of the Commons in Belgium

73

Finally, the situation of the occupants’ vulnerability (poor, sick, elderly, refugees, etc.) carries weight. Why? Simply because the possibility of an expulsion makes rehousing them less easy. Furthermore, several judges have subordinated evictions (when property belongs to a public authority) to having the said authority search for a relocation solution. What about possible improvements made to the property by the occupants? This circumstance has but a marginal role in the courts. It is not sufficient to counter the (massive) argument of the right of ownership in all cases. At most, courts sometime allow that the care the occupants have taken in tending to the building proves their desire to give the premises a new lease on life and attests to the credibility of their rehabilitation plans. For a very long time, squatting someone else’s property (i.e., occupying it without a deed or right to do so) was not a criminal offence in Belgium; only breaking into a third party’s building or entering it by violence was, by virtue of Article 439 of the Belgian Criminal Code. Consequently, a squatter who took advantage of the fact that a building was unoccupied to slip in without breaking anything and then live in it was not liable to criminal prosecution. On the contrary, and provided that she made it her home,74 the squatter would actually be protected by Article 439 of the Criminal Code in that she could claim the inviolability of her home, even against the owner’s wishing to expel the squatter by force. As a result, the owner was prohibited from taking the law into her own hands (for example by entering the premises under her own authority, dumping the squatter’s belongings in the street, and changing the locks).75 The owner then had no other possibility than to turn to a civil jurisdiction (justice of the peace) to get the squatter evicted,76 a procedure that could sometimes take a year. There are, of course, some faster procedures, such as the ex parte application, which takes just a few days to treat (before the president of the court of first instance), for the simple reason that the occupants are not called to defend their case.77 However, several conditions must be met for this. The first one has to do with the impossibility of identifying the occupants,78 which justifies launching an expulsion without calling them into court. Now, far from hiding, today’s squatters are increasingly making certain to give copies of their IDs to owners who come to dislodge them, for the express purpose of avoiding the ex parte application. Second, this procedure is contingent on the assumption of “absolute necessity,”79 which

74 There is no need to show that one has moved into a building regularly to get a domicile. It is a notion of pure fact, independent of all legal conditions, that must meet only one requirement: proving one does indeed live there. 75 This prohibition has remained, despite the adoption of new legislating incriminating squatting described below. 76 Art. 591, 1°, of the Belgian Judicial Code. 77 Art. 1025 and ff of the Belgian Judicial Code. 78 See, among others, Cass., 25 February 1999, R.D.J.P., 1999, p. 94, note by H. Boularbah. 79 Art. 584, Para. 4 and ff of the Belgian Judicial Code.

74

D. Misonne and M.-S. de Clippele

covers extreme urgency. Now, the (often long) time that the owner takes to react, combined with the premises’ standing vacant for several months, even years, destroys all notions of urgency. Also, and for precisely this reason, the civil court of Namur has just rejected the request made by a public owner to recover, by means of an ex parte application, a building that has been occupied80 by squatters. On the contrary, this judge stresses the occupants’ right to housing, a fundamental right inserted in the Belgian Constitution (Article 23)81 in 1994. Moreover, extensive jurisprudence has grown up on the basis of this provision, especially as regards squatting, which in several cases has culminated in the maintenance of the occupancy of the premises.82 In parallel, the simple fact of leaving a dwelling vacant has become a genuine (administrative) offence (infraction) in Brussels83 and Wallonia.84 Leaving real estate vacant is thus no longer a legally and morally neutral behaviour examined in light of (local) taxes only; it is now officially considered reprehensible by lawmakers, who punish it by a fine the non-payment of which can lead to the forced sale of the property, with the State’s having a legal mortgage or statutory lien on the price.85 When measured by this yardstick, illegality is not always where you think it is.

2.1.2

Policy Questions

There is no certainty these various guardrails are the incontrovertible markers of the emergence of “commons” in Belgian law. At the very least, however, they attest to the lawmakers’ will to grant primacy to the actual use of property over the simple holder of the property rights. In other words, an effort is being made (to a certain extent) to protect those who are actually making use of the dwelling in question, even if it isn’t theirs. In the current housing crisis context, this pragmatic attitude seems less unreasonable, if only to palliate the shortcomings of the State. There is more: a change in mentality is currently under way, for occupancy is gradually being seen from a positive angle. After trying (in vain) to quash the phenomenon, owners now acknowledge that having their property occupied has various advantages. Such occupancy enables them to avoid taxes and fines on empty 80

Civ. Namur (ref.), 14 October 2017, J.L.M.B., 2018, p. 35, obs. of N. Bernard. In the international arena, see Art. 8 of the European Convention of Human Rights, Art. 31 of the revised European Social Charter, Art. 34.3 of the European Union’s Charter of Fundamental Rights, Art. 25.1 of the Universal Declaration of Human Rights, Art. 11.1 of the International Covenant on Economic, Social, and Cultural Rights, Art. 27.3 of the International Convention on the Rights of the Child, Art. 9.1 of Regulation (EEC) No 1612/68 regarding the freedom of movement of workers inside the European Community, and the International Labour Organization’s Workers’ Housing Recommendation (Recommendation No 115). 82 See, among other sources, Bernard (2015). 83 Art. 20, §1er of the Brussels Housing Code. 84 Art. 85ter, §1er of the Walloon Housing and Sustainable Habitat Code. 85 Art. 20, §4, al. 4 & 5 of the Brussels Housing Code. 81

Property Meeting the Challenge of the Commons in Belgium

75

buildings, slows down the degradation of the property, prevents acts of vandalism, and so on. So, a growing number of owners, both public and private, are signing contracts with the occupants to regularise and provide a framework for the occupancy. In legal terms, these are sui generis agreements, called “precarious occupancy” agreements, which provide for the occupants’ departure when, but not before, the owner’s plan to re-use the building for something else takes shape.86 These agreements of a new type have officially entered the Brussels Housing Code.87 This consideration for moorings in a place can also be discerned in another strand of legislation called the humanisation of expulsions.88 This law protects not those who occupy someone else’s property without a deed or right, but tenants of housing for which they have not fulfilled all their contractual obligations. While in such a situation, the owner has the right to sue for termination of the lease, the law in question sets a series of conditions, such as requiring the judge to take account of the risk of the nuclear family’s falling apart if it is evicted and to take the winter season into consideration, or even the setting of a minimum one-month deadline before the expulsion order may be carried out. As we can see, a huge movement to recognise occupancy is underway, at least on the regional level, for the approach is completely different on the federal level, the powers of which cover expulsions rather than housing (which has devolved to the regions in Belgium). The federal government has traditionally veered farther right than the Brussels and Walloon Region, and federal lawmakers have adopted the so-called “Anti-squatting Act” that upsets the balance maintained until now.89 Basically, simply staying in a building “without the residents’ permission” is now a criminally punishable offence, even in the absence of any forced entry, violence, or physical damage. The law provides for a fine and prison sentence (which can be as high as 1600 euros and one year in prison, respectively, if the defendants refuse to submit to the expulsion order). Most importantly, the decision to expel the unwanted party may henceforward be taken by the King’s Prosecutor, rather than a judge, and in an extremely short time span (one week). What is more, the King’s Prosecutor may dispense with hearing the squatters’ arguments first “if it is not possible to hear them because of the specific circumstances of the case.” Besides violating the constitutional right to housing, this law, which was adopted in reaction to a specific and highly marginal case in practice (someone who occupied a property in Ghent that was already lived in90—quite an unusual case), will penalise

86

Cf. Bernard (2018b). Art. 41, 16°. 88 Law of 30 November 1998 modifying certain provisions of the Judicial Code regarding procedures in renting things and the law of 30 December 1975 concerning property found outside private properties or put out in the street in the execution of expulsion orders, M.B., 1 January 1999. 89 Law of 18 October 2017 regarding the illegitimate penetration into, occupation of, or stay in someone else’s property, M.B., 6 November 2017. 90 The owners were away on holiday for a few weeks. 87

76

D. Misonne and M.-S. de Clippele

the entire sector and appears to be disproportionate. Of course, it remains to be seen whether it will be enforced in actual practice. In an exception to usual procedures in the field, it will be possible to prosecute this new offence only if a complaint is lodged.

2.2

Nature

Hamid, Heba, and their two children used to spend many weekends walking and playing in one of the few green areas at the outskirts of the city where they live. The land belongs to a private owner who lives in a small house near the lake. Corporation C acquires the green area and converts it into a members-only country club. Hamid and Heba sue. A local environmental group also sues claiming access to what they consider a natural commons.

2.2.1 2.2.1.1

Analysis of the Case Administrative Authorization for Changing the Assignment of the Property

Corporation C needs an administrative authorization in order to change the assignment of the public property: transformation of a house and garden dedicated to housing into a private country club. Furthermore, especially because the land is located in a ‘green area,’ the land also probably falls under the special protection offered by planning instruments (structural plans) or environmental instruments (Natura 2000), which will also need to be analysed. One must also assess the specificities of the ‘country club.’ If transformed into a restaurant, swimming pool, or nightclub, it shall create nuisances and it is therefore submitted to the prior obtaining of an environmental permit. At the occasion of the request for authorization(s), all citizens, including NGOs, will be offered a possibility to react to the public inquest and share thoughts on the new project, with public authorities and representatives of Corporation C being present at a public hearing, if needed. Such meeting is foreseen in the administrative procedures, a request the respect of which is severely controlled, should the compulsory conditions (deadlines, display) not be respected. The family or the association can try to convince Corporation C not to enclose the land. If the authorization(s) are delivered by the public authorities, there are different possibilities of appeal before administrative courts, in order to check the legality of the procedures. However, on the substantive aspect, the privatization of a land previously used as a common but owned by a private person and with no special planning affectation (green area only), we do not see any avenue against that privatization in the current state of the law, except for two aspects:

Property Meeting the Challenge of the Commons in Belgium

77

• in relation to the protection of walking-through paths • in relation to an access to the lake and to the banks of that lake, should it pertain to the public domain

2.2.1.2

Privatization, Except for Paths and Access to the Lake

The right to enclose (Art. 3.61 of the new Civil Code) is not absolute. The public can enjoy a right to pass on private land, under conditions. If Hamid, Heba, and their two children can demonstrate that people actually used to cross that land for years, and that a right to pass has actually been acquired through the ages, they can sue Corporation C before the justice of the peace in order to contest the legality of fences and of the restricted access. It would be easier for the environmental group to sue the private owner, if that association aims at protecting the common heritage, a notion the protection of public paths is part of and recognized as such. In the Walloon Region, clarification has been brought by a law of 2014, one of the main tools being the revival of an atlas of most small paths that are deemed to be kept accessible to the general public for the sake of the general interest. The public right to pass on private land can be established either by the public authority—by a regulatory decision (at local level, with an appeal procedure before the Government; see the Walloon Decree of 6 February 2014 on vicinal roads) or by a convention between the owner and the local authority (see Art.10 of the same Decree)—or acquired by public easement, as a consequence of the regular passage by any person of the general public during the last thirty years. The use of the path (accessible to all) is distinct from the ownership of the piece of land on which the right to pass has been granted actively (though designation, inscription on an atlas) or passively (through regular passage by non-owners). The role of citizens in the protection of such ‘commons’ or ‘common heritage’ has long been decisive. At local level, non-governmental associations aiming at the protection of cultural heritage, including these rights to pass and to walk, have existed for decades, and can be quite successful, starting by inviting people to keep walking in order to entertain the servitude. Hamid, Heba, and the local NGO should organize regular walks and sitting in order to reclaim the path before it is enclosed. The Walloon Decree of 2014 on vicinal roads reckons on public participation, either through public enquiries or via the constitution of specific ad hoc local experts’ groups, in order to facilitate inventories and to enhance the protection of existing rights. That new Act enhances the protection of vicinal paths, as it makes their suppression more difficult. The local association should subscribe to such initiatives and participate in the ad hoc expert group.

78

D. Misonne and M.-S. de Clippele

2.2.1.3

Access to the Lake and to the Lakebanks

The status of the lake can play a role in the issue of access. If the lake pertains to the public domain, it should be deallocated by a ruling from the competent authority (see Sect. 1.5).

2.2.2

Policy Questions

The maintenance of the right to pass on private land, and as a consequence of a ‘right to walk though,’ is an important dimension of ‘the resurgence of the commons’ in Belgium for a long time, but also more recently, due to a renewed interest in all the forms of slow mobility at large (eg, the ‘Ravel’ of the transformation of old railways and riverbanks into cycle paths). Still, the issue of passage on private land, for the mere sake of walking or enjoying the benefit of a shortcut, remains contentious. Intimidation cases are not rare (‘interdiction,’ ‘no passage,’ ‘traps,’ ironwire, etc). In that context, the role of associations remains crucial: they play a decisive role of guardian and watchdog, especially where the local public authority remains deficient, or where the citizen facing such threats and abuse is less well informed.

2.3

Territory

Yellowriver is a small village sitting within a large and remote forest area. The government grants to Gold Masters Corporation permission to dig seeking for gold in order to develop a nearby mine. Aware of the high polluting risks of gold extraction to the nearby river, villagers erupt in protest and attempt to stop the project by legal means. Do they have any available action to protect the river— either as individuals or as an endangered community?

2.3.1

Analysis of the Case

Mining is a regionalized competence in Belgium, as far as environmental impact is concerned. For the purpose of this case, we consider that Yellowriver is a small village located in the Walloon Region. Mining operations, including in the exploration phase, must request prior permission in Belgium. Such permits are delivered at regional level, based on a specific

Property Meeting the Challenge of the Commons in Belgium

79

legislation on mining91 (Regional Act of 7 July 1988 on Mines, partly cancelled by the Constitutional Court92 but updated in 2008 with regard to environmental crime,93 and a Regional Decree of 26 July 1990 dedicated to research activities). According to those old texts, a research permit can be granted by the Government for a maximum period of five years, after a consultation of the public (without any precision) and a formal request of the opinion of the Council of State (art. 6). Such a research permit can be renewed. Once confirmed, the development project requires another type of authorization, named a ‘concession,’ with financial guarantees offered to the owners of the surface. A concession shall only be granted in respect of specific procedural conditions. A public enquiry must be made, which respects criteria that are imposed to any environmental permit according to the Environmental Code, Book 1. As far as substance is concerned, developers are required to respect the content of general specifications. But none has been written so far in relation to gold mining, due to the lack of relevance in Belgium. Specifications on other mining activities include consideration of the impact on water (Regional Governmental Decree of 2003 on water and coal mining). All effluents must comply with specific conditions (pH, temperature, components), which are not elaborated. The exploration or concession titles can be withdrawn by the public authorities when general or specific conditions are not complied with. The entire regional body of legislation on mining and exploration is outdated. Current regulation of mining is weak in the Region today, due to lack of contemporary applications. Mining has also always been separately regulated and the relevant legislation did not evolve much, in contrast to other sectors such as quarries. Gold mining would today be framed within the implementation of European Union Law, a law that needs to be translated into regional texts, the update and appropriateness of which, with regard to mining operations, would need verification. That framework includes legislation on the facilities (the 2010/75 Industrial Emissions Directive of 2010: production and processing of metals, and its ‘best available techniques’), on management of extractive waste (the 2006/21/EC Directive on the management of waste from the extractive industries), on major-accident hazards (Directive 2012/18 on the control of major-accident hazards), on water quality (Water-Framework Directive), on impact assessment (Directive 85/337), on the need to prevent or repair damage to the environment (Directive 2004/35 on Environmental Liability, applicable to ‘environmental damage caused by any of the occupational activities listed in Annex III, and to any imminent threat of such damage occurring by reason of any of those activities,’ that includes most discharges into water resulting from industrial facilities). The river and the nearby forests could also benefit from a specific status of protection according to the Habitat Directive.

91

A different legislation from that applicable to quarries. Mines differ from quarries, not based on the type of activity, nor on the fact operations occur in open air or not, but based on the kind of resource. Seeking for gold means mining. 92 C.A. 5/90, 8 February 1990. 93 Regional Act of 5 June 2008.

80

D. Misonne and M.-S. de Clippele

Villagers and other plaintiffs could sue the Government or the Corporation, either in order to prevent the damage or to ask for reparation. Preventive action could include: • an action before an administrative jurisdiction, in order to challenge the permits, either on procedural or substantive grounds, and obtain a suspension or cancellation. This action would raise the question of the compatibility of the current regional legislative framework with European Union law, through a request for a preliminary ruling before the European Court of Justice; • an urgent action before the tribunal of first instance in order to prevent the occurrence of an imminent damage, based on a law of 12 January 1993 that allows the Tribunal to give an injunction to stop the occurrence of imminent damage to the environment, upon request made by an association, a local administration, or even the inhabitants of the village; • an administrative action based on texts of the Environmental Code, Book 1,94 implementing the Directive on Environmental Liability and allowing the public authority to impose urgent preventive action upon the developer. Action after the damage has occurred could include: • an action brought before a civil jurisdiction, raising the question of the fault of the developer or of the public authority, possibly also in relation to the Liability Directive and its implementation; • an action brought before a penal jurisdiction, for breach of compliance with the conditions of the permit (or operations without permitting), or for breach of compliance with other legislation, such as the protection of water quality and the prevention of damage to water. In direct relation to mining, trespassers are liable to a penalty of 100 EUR to one million EUR, or imprisonment for up to three years, with a minimum of 8 days.95

2.3.1.1

Locus standi

Due to the growing impact of the Aarhus Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters, locus standi for associations has considerably expanded in recent decades in Belgium, but to a certain extent only (no actio popularis on environmental matters), with differentiation according to the type of jurisdiction (administrative/judiciary). An association aiming at defending the river could act against the permits before an administrative court, in order to obtain their suspension or cancellation. Such locus standi depends upon the raison d’être of the association; the protection of the river must fall within its legitimate goals. A contrat de rivière (river contract)—a

94 95

Art. D.112, etc. Walloon Code for the Environment, Book 1.

Property Meeting the Challenge of the Commons in Belgium

81

collective structure (through a Convention with the Walloon Region and the allowance of a subvention) that gathers around the different functions of a river and the need to protect them, various interests (anglers, walkers, industry, etc)—would probably be most appropriate in order to ease access to Court. Inhabitants can also try to provoke an urgent reaction from the Tribunal of First Instance, based on a Law of 1993 on urgent actions in environmental matters, even against the authorities of the village if they decide not to react.

2.3.2 2.3.2.1

Policy Questions Endangered Community

The concept of ‘endangered community,’ as such, is not applicable in Belgium, in relation to rivers or forests.

2.3.2.2

Rivers Do Not Have Legal Personality

Rivers do not fall into the category of persons under Belgian Law. They do not have a legal personality. They pertain to the public domain. As a consequence, except their relation to the public domain, they are not connected to a specific community that could play a role of guardianship or tutorship. However, a community can emanate from a conventional procedure that a priori resorts to the field of gentleman’s agreement: the river contract.96 Launched in the nineties, river contracts are an interesting way of raising the interest of riparians in the ‘resource’ they all share, including with public authorities. The main objective is to inform and to facilitate dialogue on how to reach a good water status. Partners can decide to adopt and allocate specific objectives, based on respective competencies. There are 16 river contracts active today in the Region (see http://environnement. wallonie.be/contrat_riviere), with an involvement of public authorities.

2.3.2.3

No Gold Mining

Mining legislation in Belgium is obsolete. By contrast to the regime applicable to quarries, which has been aligned with contemporary legal requirements, mining legislation, by lack of application, is not up to date. Gold is not topical in Belgium; however, mining could return due to a worldwide competition for getting access to rare minerals. A regional Act of 10 July 2013 implements recent EU law on carbon storage, in a brand new type of legislation.

96

Water Code, D.32 and administrative guidelines (the last one in 2007).

82

D. Misonne and M.-S. de Clippele

2.3.2.3.1

Investment Protection

Would Gold Masters Corporation be deprived of its authorization due to risks to the environment or non-compliance with the conditions of a permit; could it sue the Walloon Region for breach of investment protection? This all depends on whether the company is protected, as a foreign company, under a bilateral investment protection treaty (eg, CETA), and how the issue of indirect expropriation is settled, including the possible impact of a closure for breach of environmental requirements.

2.3.2.4

Gold and Mercury

The future impact of the content of the 2013 Minamata Convention on mercury (which entered into force on 16 August 2017), as far as artisanal gold mining is concerned, needs to be considered in assessing the future of all applicable environmental regimes worldwide.

2.4

Culture

State funding to a nonprofit local theater is cut in response to austerity measures; as a result the theater will be sold to a private company that wants to operate the theater at a profit. Evgenia, Misha, and Katia are actors, and along with other concerned citizens that protest the sale and other workers, they occupy the theater, and continue the theater’s programming for the public through a combination of volunteer work and donations. The municipality brings suit to evict against Evgenia, Misha, Katia, and the other actors. Consider whether it would make a difference if this was a historic theater of cultural relevance both in that the building is a historical building and history of offering public performances. Variation: Assume that the actors obtain permission to stay and to use the theater provided that they run it as a commons in the interest of culture and future generations. What legal form should they use to this purpose?

2.4.1 2.4.1.1

Analysis of the Case Occupation of the Theater

As discussed in Sect. 2.1 relating to housing, occupation of buildings, especially empty buildings, is since recently more strictly regulated in Belgian law than before. Occupying as such is not a crime in our Penal Code, even though burglary is (Article 468 of the Penal Code). The domicile, however, is protected, as article 15 of our Constitution provides:

Property Meeting the Challenge of the Commons in Belgium

83

The home is inviolable; no visits to the home may be made except in the cases provided for by law and in the form prescribed by law. Le domicile est inviolable; aucune visite domiciliaire ne peut avoir lieu que dans les cas prévus par la loi et dans la forme qu’elle prescrit.

But an owned building that is not the domicile of someone—such as the theater— cannot so easily be protected against squatting (i.e., illegal occupation) by a homeless person seeking to live in an empty building. If the building is empty and if there is no offense or infringement when entering, the occupation may become legal, although less easily since the law of 18 October 2017. There are not that many legal actions the owner may undertake to evict those squatters, besides going before the juge de paix and requesting an order of expulsion on the grounds of Article 591, 1° of the Judiciary Code or through the law—yet to be set out in practice—of 18 October 2017, as mentioned in Sect. 2.1 for housing. In the case of the theater it is somehow different because Evgenia, Misha, Katia, and other actors don’t occupy the theater in order to live there but rather to continue working there. However, it may be argued that the building was probably left empty after the decision to sell the theater and that these actors will probably still have the keys to access the building without committing any offenses. From that perspective, they may be considered under Belgian law to occupy legally the building and their eviction may prove difficult, especially if the situation is happening for a certain period of time (a few months/years rather than a few days/weeks).

2.4.1.2

If the Theater—Public Property of the Municipality—Is Public Domain

An important aspect for this case concerns the property issue: local authorities own the theater. Under Belgian law, this theater would probably be in the public domain because it serves the public and is put to use for all by giving access to culture. In principle, the local authority cannot sell this building and certainly not to a private actor: the theater is inalienable. By doing so, it will probably lessen the public service the authority is supposed to render. If the sale of a public good is nonetheless going to happen to a private actor the public owner must first unilaterally decide to deaccess the good, and this decision may be challenged by the supervisory authority (the Regions, in our case).

2.4.1.3

If the Theater Is Historic and of Cultural Relevance

If the theater were a protected monument under one of the three regional legislations and the decree of the German Community,97 it wouldn’t really change the principles outlined before. It would probably heighten the duty of the State to take good care of 97

Flemish Region: Onroerenderfgoeddecreet, 12 July 2013;

84

D. Misonne and M.-S. de Clippele

it and diminish the possibility to “get rid of it” by selling it to a private actor. In other words, it’s more the argument of the public domain that may halt the sale than the fact that the theater is a historic building.

2.4.1.4

Variation: If the Actors Obtain Permission to Stay and to Use the Theater Provided That They Run It as a Commons in the Interest of Culture and Future Generations, What Legal Form Should They Use?

Classical figures of private law may provide sufficient legal structure to a commonly run theater. The most obvious would be to form a nonprofit organization (association sans but lucratif) where the way the theater will be run is outlined in the statutes. Another option might be creating a similar form of nonprofit organization, the foundation, centred on goods rather than people, which could then be the maintenance of the theater. Other legal structures are more oriented towards profit (société) and can be useful, but they might relinquish the spirit of running a theater in common in the interest of culture and future generations.

2.4.2

Constitutional Right to Culture

Another way of approaching this question is through State responsibility under Article 23 of the Constitution, which provides: Everyone has the right to lead a life in accordance with human dignity. To this end, the law, decree or rule referred to in article 134 shall, taking into account the corresponding obligations, guarantee economic, social and cultural rights and determine the conditions for their exercise. These rights shall include in particular: . . . 5° the right to cultural and social development Chacun a le droit de mener une vie conforme à la dignité humaine. À cette fin, la loi, le décret ou la règle visée à l’article 134 garantissent, en tenant compte des obligations correspondantes, les droits économiques, sociaux et culturels, et déterminent les conditions de leur exercice. Ces droits comprennent notamment: . . . 5° le droit à l’épanouissement culturel et social

Brussels Region: Code bruxellois d’Aménagement du Territoire et d’Urbanisme, Article 206 and following; Walloon Region: Code wallon du Patrimoine, Article 185 and following; German Community: Dekmalschutzdekret of 23 June 2008.

Property Meeting the Challenge of the Commons in Belgium

85

In other words, cultural rights are protected in the Constitution. The State has therefore the duty to ensure the implementation of those rights. Doctrine divides the right to culture into three categories: the right to protect, the right to respect, and the right to fulfil, each one’s entailing negative or positive obligations toward the State (Romainville 2014). Cutting funding of a public theater could be seen as a reduction of the protection of the right to culture and could be challenged before the courts. The doctrine of standstill, theorized in Belgium by Isabelle Hachez in her PhD work (Hachez 2008), prohibits a public actor to regress in the level of human rights protection unless justified by imperial motives of general interest. Lack of budget is not enough to justify such a regression. The actors could go before the administrative court, the Conseil d’État, and challenge the legality of the decision to cut funding with regards to article 23, 5° of the Constitution. The action may be twofold: suspend the decision (and also the decision to sell) if there is a serious prejudice and imperative motives to do so in the first place, and later on obtain the annulment of the decision if it were illegal.

2.5

Climate

Diletta, Flavio, and Antonella became aware of the reality of climate change when their school teacher decided to work on reading materials that were circulated at the time of the 2015 Paris Agreement on Climate Change. Although just turned 18 years old, all the three of them took the information quite seriously and started to worry about the gloomy expectations they learnt about: dangerous rise in the global temperature, water scarcity, droughts, forest fires, possible displacement of populations, etc. After the scandal involving the Popcar Corporation, concerning the manipulation of computer system for the control of emission in cars, Diletta, Flavio, and Antonella are struck by the quite feeble sanctions inflicted to the car manufacturer—not only in their jurisdiction. For this reason Diletta, Flavio, and Antonella decide to take action in the interest of future generations. They sue their government and the global corporation Popcar.

2.5.1

Analysis of the Case

We must first ascertain under which jurisdiction and based on which legal framework Popcar, the car manufacturer, has been sanctioned.

2.5.1.1

A Collective Action in Relation to Consumer Protection

Actions against corporations are eased in Belgium since September 2014, and the entry into force of a new Code of Economic Law, that introduces a possibility of

86

D. Misonne and M.-S. de Clippele

collective action where consumer interests are violated. The conditions for such collective action are: • all plaintiffs must qualify as a consumer, and suffer from the same kind of reprehensible practices; • victims are represented by one person, meeting certain conditions. That person may be a recognized association or a well-known organization acting in favor of the protection of consumer interests;98 • the procedure must proceed before the judicial jurisdictions in Brussels; • the incrimination must concern a breach of a contract, European regulation, or national law listed in the Code, including the chapter on fair market practices (cheating is forbidden: the manipulation of a computer system in order to transform information on emissions would fall within the scope of the Code) and the main legislation on consumer protection. It does not expand on specific legislation on cars, except for insurance protection and mileage measurement provisions; environmental provisions are not mentioned. Another condition is that the collective action is supposed to be more efficient than a normal action, based on generally applicable provisions (torts, for instance). Can Diletta, Flavio, and Antonella qualify as a consumer, and be among the plaintiffs that would be represented by an association? The consumer is, according to the Code on Economic Law, any physical person who acts in order to defend interests that do not fall within a professional, industrial, craftlike, or liberal sphere. It does not entail, as a consequence, that our three young people must be the owners or users of a car. Of course, they must be impaired by the same kind of reprehensible practices, but one does not know yet, by lack of case law, the determinants of the collective prejudice. The aim of the collective action is to obtain and negotiate the reparation of the collective damage, not to impose sanctions (in the sense of a fine or imprisonment).

2.5.1.2

Breach of Criminal Law

Actions before criminal courts are kept separate from such collective actions.99 The transformation of a computer system in order to favor unfair and illegal practices falls within the Code of Economic Law and its penal provisions. Unfair practices are condemnable. But if the problem is an impact on climate change, the possibility for our three young adults to act as a plaintiff in the general interest is, as far as we know, vain. On the environmental side, the regulation of the control of emissions in cars is highly Europeanized in Belgium, meaning it is ruled under EU law as implemented under Belgian Law. Sanctions and prosecutions remain the resort of national law,

98 99

Art. XVII.39, Code of Economic Law. Art. XVII.67.

Property Meeting the Challenge of the Commons in Belgium

87

except for the type of incrimination. The unlawful discharge of emissions into the air is a criminal offence and must be established as such in the law of Member States, according to Directive 2008/99 on the protection of the environment though criminal law. General legislation on car emissions100 is listed among the provisions the infringement of which constitutes an unlawful conduct. EU legislation is evolving on these aspects, including on measurement and reporting requirements of car emissions. Emissions of cars, when a condition of access to the Belgian market, for environmental reasons are a federal jurisdiction. On the environmental aspects, it is mainly governed by the Federal Law of 21 December 1998 on product legislation, and related regulations, including those implementing the regulation of information on CO2 emissions from cars. But its application is intertwined with provisions of the Code of Economic Law, especially as far as fairness in market practices is concerned. Control of the general information, as provided for by the car manufacturer to the general public, is the resort of the Economic Inspectorate.101 To our knowledge, the Belgian Government has never taken action against a car manufacturer or importer in order to contest the breach of regulatory requirements on emissions information and control. Enforcement is widely recognized as the weak dimension of EU air quality policies at large. Diletta, Flavio, and Antonella could add their voices to the many complaints already made to the Commission that breaches of EU Law on emissions by cars should force the Commission to bring a case for non-compliance before the European Court of Justice. As already mentioned, even if the control is national, emissions from cars and information on these emissions is a highly Europeanized subject. As a consequence, any national action should be informed by an interpretation of EU applicable law, including the Lisbon Treaty provisions and Charter of Fundamental Rights, according to which a high level of protection of health and the environment must be ensured through all EU policies. New CO2 emissions targets are currently being discussed at the EU level. On 8 November 2017, the European Commission published its clean mobility package. A proposal on the reduction of CO2 emissions from passenger cars between 2020 and 2030 is at the core of that package. The issue is highly sensitive. Discussions focus on the level of ambition, i.e. the level of severity of the proposed targets, which is considered as not sufficient by consumer associations (Beuc, for instance). Via a Commission Regulation adopted in execution of Directive 2007/46/EC of the European Parliament and of the Council of 5 September 2007 establishing a framework for the approval of motor vehicles and their trailers (and of systems, 100

Council Directive 70/220/EEC of 20 March 1970 on the approximation of the laws of the Member States on measures to be taken against air pollution by emissions from motor vehicles; Council Directive 72/306/EEC of 2 August 1972 on the approximation of the laws of the Member States relating to the measures to be taken against the emission of pollutants from diesel engines. 101 Royal Decree of 5 September 2001 on information on car consumption and greenhouse gas emissions.

88

D. Misonne and M.-S. de Clippele

components, and separate technical units intended for such vehicles), new technical rules on monitoring CO2 emissions were also adopted, which remain a contentious issue due to the sensitivity and acuteness of the air pollution problem. Diletta, Flavio, and Antonella could try to convince a Member State or an Institution like the European Parliament to sue the European Commission for breach of the Treaty, based on the weak ambition of these different regimes, in relation to the need to protect a high level of health and environmental protection.

2.5.2

Policy Questions

The main national consumer protection association, Test-Achats, launched different actions against Volkswagen in the aftermath of Dieselgate, not in relation to climate change (greenhouse gases) but due to unfair practices in relation to the prevention of emissions of NOx into the air. The problem that is being raised is a problem of fraud: a fraud due to the difference between the information on emissions that is proposed to the buyer and real emissions on the road. The consumer must assume a higher fuel consumption than what was predicted. Even after a refit process, the car does not suit the requirement of the EURO 5 standard, due to an excess of NOx. The first type of action is a collective action brought before the Tribunal of First Instance in Brussels. That collective action gathers consumers who bought their cars after the entry into force of the new regime, i.e. starting on 1 September 2014. For other consumers who bought their car before that date, Test-Achats acts as the representative of each individual separately, on a case-by-case basis. In the collective procedure, the judge decided in December 2017, after months of proceedings, that the collective action, as proposed by Test-Achats, is indeed admissible and confirmed the locus standi. On climate change and the absence of progressive effort made so far by the Belgian Authorities, a civil suit has been introduced before the Tribunal of 1st instance in Brussels, in April 2015, by an association called Klimaatzaak, based on the model of the Urgenda case (still pending at that time). The case is filed against all competent powers in solidum: the federal state and the three regions (Walloon Region, Flemish Region, Brussels Region). The claim of negligence is based on general civil law: art. 1382 (fault), art. 743 (res communes; interpreted as a right to use non-owned resources). It also raises issues of Constitutional law, among which are art. 23 and the right to a healthy environment which, in Belgium, does not have yet a direct effect. It also claims a breach of the human right to life, of the principles of prevention and precaution at large. The action is described on the website of the case (https://affaire-climat.be) as a ‘collective action that aims to force the government to respects its commitments,’ in relation to climate change. Belgium’s particularity, however, is that climate change is a transversal issue, that falls within the exclusive competence of both the Federal State and the three Regions. An action in solidum leads to the question of the appropriateness of the choice of the language of the procedure (can the Flemish Region be sued, in French, before a Brussels Court?). The case is now referred, on

Property Meeting the Challenge of the Commons in Belgium

89

that procedural aspect, to the Court of Cassation (higher level), which might take quite a while. The Klimaatzaak action focuses on insufficient reduction of greenhouse gases, by comparison to what science requests and to what the EU commitments at that time (2014–15) entailed. One of the features of that case is beyond the judiciary. It is characterized by high impact of communication to the general public: like other similar cases in the world, communication is central here. The association Kimaatzaak is not a renowned classic NGO but a specific association funded by TV stars and other celebrities, with ambassadors of the cause (artists, writers), and trying to bring on board as many co-plaintiffs as possible, with a possibility to join online, and also with explicit requests to contribute to funding. More than 31,400 people have joined the action so far: an action that cannot enjoy the status of a collective class action under Belgian Law, as it does not exist beyond the sphere of the Code of Economic Law and Consumer Protection. The easiest avenue for Diletta, Flavio, and Antonella would be to join the action—by a simple click on their computers—and see what happens.

References Bernard N (2014) Précis de droit des biens. Anthemis Editions, Louvain-La Neuve Bernard N (2015) L’article 23 de la Constitution: pas une botte secrète, mais pas non plus dénué de tout effectivité (judiciaire). Revue de jurisprudence de Liège, Mons et Bruxelles 2015(23): 1080–1089 Bernard N (2017) Les limites de la propriété par les droits de l’homme. In: La propriété et ses limites / Das Eigentum und seine Grenzen: Congrès de l’Association Suisse de Philosophie du Droit et de Philosophie Sociale, 26 septembre 2015, Université de Genève / Kongress der Schweizerischen Vereinigung für Rechts- und Sozialphilosophie, 26 September 2015, Universität Genf = Das Eigentum und seine Grenzen. Franz Steiner Verlag, Stuttgart Stuttgart, pp 55–130 Bernard N (2018a) Le community land trust comme nouveau paradigme de l’habitat acquisitif (ou les communs appliqués à la propriété du logement). Revue interdisciplinaire d’études juridiques 81:243–266 Bernard N (2018b) Les occupations précaires: Guide juridique et pratique. Jurimpratique 2017/2. Larcier, Bruxelles Bernard N, Defraiteur V (2020) La réforme 2020 du droit des biens: La modernisation dans la continuité (1re partie). Journal des tribunaux 20:413–420 Bollier D (2014) Think like a commoner: a short introduction to the life of the commons. New Society Publishers, Gabriola Island Carette A (1997) Herstel van en vergoeding voor aantasting aan niet-toegeëigende milieubestanddelen. Intersentia Rechtswetenschappen, Antwerpen Carette A (1998) Een subjectief recht op een volwaardig leefmilieu? Tijdschrift voor privaatrecht:821–888 Centre d’études sur la coopération juridique internationale (ed) (2012) Les modèles propriétaires au XXIe siècle: actes du Colloque international organisé par le CECOJI à la Faculté de Droit et des Sciences sociales de l’Université de Poitiers, 10 et 11 décembre 2009: en hommage au professeur Henri-Jacques Lucas. L.G.D.J, Paris Chardeaux M-A (2006) Les choses communes. L.G.D.J, Paris

90

D. Misonne and M.-S. de Clippele

Coriat B (2013) Le retour des communs. Revue de la régulation: Capitalisme, institutions, pouvoirs Dardot P, Laval C (2014) Commun: Essai sur la révolution au XXIe siècle. La Découverte, Paris de Broux P-O, Portelli M (2014) La réglementation du cycle de l’eau potable. Revue du droit des industries et de réseau 1:23–32 De Clerck P (2018) Habiter avant la règle: quelques nouvelles d’une mise en chantier de l’institution à Notre-Dame-des-Landes. Revue interdisciplinaire d’études juridiques 81:267–295 Delnoy M (1999) Les répercussions en droit civil du « nouveau » CWATUP: patrimonialisation du territoire wallon, information par le vendeur, droit de préemption et indemnisation des dommages de plans, REDRIM 42–53 Draye AM (2020) Wegen in het Vlaamse Gewest, Wolters Kluwer. Wolters Kluwer, Mechelen Frison C (2018) Redesigning the global seed commons: law and policy for agrobiodiversity and food security. Routledge, New York Gutwirth S (2018) Quel(s) droit(s) pour quel(s) commun(s)? Revue interdisciplinaire d’études juridiques 81:83–107 Gutwirth S, Stengers I (2016) Le droit à l’épreuve de la résurgence des commons. Revue interdisciplinaire d’études juridiques:306–343 Hachez I (2008) Le principe de standstill dans le droit des droits fondamentaux: une irréversibilité relative, 1. éd. Sakkoulas, Athènes Jadot B (1995) L’article 714 du Code civil et la protection de l’environnement. In: L’actualité du droit de l’environnement, Actes du colloque des 17 et 18 novembre 1994 organisé par la Faculté de droit de l’Université libre de Bruxelles et l’Institut de Gestion de l’Environnement et d’Aménagement du Territoire. Bruylant, Bruxelles, pp 53–72 Jadot B (2018) Rameaux de jurisprudence pour le patrimoine commun. In: Cartuyvels Y (ed) Le droit malgré tout: Hommage à François Ost. Presses de l’Université Saint-Louis, Bruxelles, pp 735–751 Ost F (2003) La nature hors la loi: L’écologie à l’épreuve du droit. La Découverte, Paris Pâques M, Vercheval C (2015) Droit wallon de l’urbanisme: Entre CWATUPE et CoDT. Larcier, Bruxelles Piron J (2017) Constitutionnaliser les communs | Etopia. https://etopia.be/constitutionnaliser-lescommuns/. Accessed 22 Aug 2020 Romainville C (2014) Le droit à la culture, une réalité juridique: Le régime juridique du droit de participer à la vie culturelle en droit constitutionnel et en droit international. Bruylant, Bruxelles Romainville C, de Stexhe F (2020) L’action d’intérêt collectif. J Trib 11:189–201 Sambon J (2012) Commentaire de l’article 1er. In: Commentaire systématique du nouveau CWATUPE. Kluwer, Bruxelles Strowel A (2018) Omnia sunt communia: des opera au Big Data. Revue interdisciplinaire d’études juridiques 81:177–209 Tanas A, Gutwirth S (2020) Une approche ‘écologique’ des communs dans le droit: Regards sur le patrimoine transpropriatif, les usi civici et la riviere-personne. In Situ: Au regard des sciences sociales 17p Tulkens F, Pijcke G (2007) L’action en cessation environnementale exercée par les habitants: une action populaire consacrée par la Cour constitutionnelle? Amén:205–212 Van de Voorde J (2020) Het nieuwe goederenrecht en het milieu. Tijdschr Voorr Milieurecht:272–303

Property Meeting the Challenge of the Commons in Common Law Canada Lionel Smith

Abstract Although Canadian common law lacks a statutory definition of the commons, the common law has several concepts and institutions that embody different dimensions of the commons. These can be found in Crown property as well as private property. Examples include highways, rights in relation to water and bodies of water, rights of common derived from the English legal tradition, and aboriginal rights and title. The topic of the commons has historically attracted scant interest in English-language Canadian legal literature, although the eminent political scientist C.B. Macpherson addressed the topic in the 1970s. However, there has been some resurgence of interest in the commons in the aftermath of the 2008 financial crisis and the related 2011 case Batty v. Toronto concerning the occupation of a public park by protesters.

1 Introduction Canada is a federation, with legislative competence shared between the federal Parliament and the ten provincial legislatures.1 Private law belongs mainly to the provincial level.2 One province, Quebec, has a civilian system of private law,

I thank my research assistant Laura Alford for her excellent work. 1

The spheres of competence are set out in ss. 91-5 of the Constitution Act, 1867. There are also three territories, which exist by virtue of federal legislation, but which are treated for most purposes as separate jurisdictions at the provincial level. They have their own legislative assemblies and legislate by delegation from the federal government in areas that belong to the provincial level. 2 Constitution Act, 1867, s. 92(13). There are some particular private law matters (for example, bankruptcy, banking and bills of exchange) that are assigned to the federal level. L. Smith (✉) University of Cambridge, Cambridge, United Kingdom e-mail: [email protected] © The Author(s), under exclusive license to Springer Nature Switzerland AG 2023 U. Mattei et al. (eds.), Property Meeting the Challenge of the Commons, Ius Comparatum - Global Studies in Comparative Law 59, https://doi.org/10.1007/978-3-031-25218-1_3

91

92

L. Smith

derived from the customary French law that was applied during the time that it was a colony of France. The other provinces and the territories have adopted the tradition of English common law. Cities and towns that are incorporated are creations of provincial legislation, and hold their powers by delegation from a provincial or territorial government. Civil procedure also belongs to the provinces, with the result that procedural rules can and do vary from one province to another. Criminal law and criminal procedure, however, belong to the federal level and are therefore uniform across Canada. The Canadian Constitution has been interpreted as drawing a distinction between ‘true criminal offences’ and ‘regulatory offences’. The provinces are competent to create regulatory offences and they have created an enormous range of them. These may include, for example, offences related to the use of public roads, to the environment, or to securities regulation. These offences can carry as penalties fines and imprisonment for a period less than two years. Towns and cities can also create offences and attach financial penalties for non-compliance. The Supreme Court of Canada has the role of unifying the common law of Canada across the common law provinces. In this it differs from the Supreme Court of the United States. As far as Quebec civil law is concerned, the Supreme Court of Canada is the highest court of appeal, but since there is only one civilian jurisdiction in Canada, the Court does not have a unifying function.3 Because Canadian legislatures have inherited the Westminster parliamentary tradition, it is typical in the common law provinces and at the federal level to describe the executive part of the government as the Crown. The same label is applied to the legal person that represents the State, and which acts through the executive. Thus Canada has multiple Crowns: the federal government is the ‘Crown in right of Canada’ but there is also a ‘Crown in right of Ontario’, ‘in right of Alberta’ and so on. In Quebec, today it is more usual to refer to the ‘State’ than the ‘Crown’; this is the terminology, for example, of the Civil Code of Quebec. The distinction between Crown and State, however, is a matter of preference and custom, not of law.

3

By s. 6 of the Supreme Court Act, R.S.C. 1985, c. S-26, at least three of the nine judges of the Supreme Court of Canada must be appointed from Quebec. By convention, the number of Quebec judges is three.

Property Meeting the Challenge of the Commons in Common Law Canada

93

2 Questionnaire: Part I 2.1

What Legal Categories in Your Legal System Correspond to the Notion of the Commons as Deployed in the Introduction?

Canada is the second-largest country in the world by area. Less than 11% of Canada’s land is held under private ownership. Of the rest, 41% is federal Crown land, and 48% is provincial Crown land.4 The following is a non-exhaustive list of examples in Canadian common law in which common rights exist to a greater or lesser extent. These are situations in which citizens have some measure of a right ‘not to be excluded’ from the use or benefit of a particular good.5

2.1.1

Unowned Property

Unowned property (res nullius) that belongs to the first taker can be understood as a kind of common property, inasmuch as anyone can take it and become the owner. There is no land that falls into this category, because in the common law all land is owned by the Crown. Although the Crown may grant estates, which are the economic equivalent of ownership, even in that case the Crown retains the underlying ownership.6 Air and the water in the sea fall into this category. Fresh water is often unowned, although there are limits as to how much can be taken.7 The ownership of the beds of tidal waters is in the Crown, and it has been held that the right to fish in those waters remains forever in the public domain and cannot be granted by the Crown to any single individual.8 The ownership of the beds of non-tidal waters can, however, be granted to a private person and in this case the right to fish belongs to that person.9 4

Neimanis VP (2011/2013) Crown land. In: The Canadian Encyclopedia, Available via www. thecanadianencyclopedia.ca/en/article/crown-land. Accessed 19 Jun 2022. 5 In that sense, this definition follows C.B. Macpherson’s understanding of common property (discussed in Sect. 2.3). 6 As we will see below, ‘Crown land’, in which no estate has been granted, can be seen as a kind of commons; but it is not unowned. 7 These limits are discussed in Sect. 3.4. As that answer notes, in some provinces fresh water belongs to the provincial Crown, in support of licencing regimes. 8 Rose v. Belyea (1867), 12 N.B.R. 109 (N.B. C.A.), explained in Tadenac Club Ltd. v. Hebner (1957), 9 D.L.R. (2d) 282 (Ont. H.C.) where the earlier case did not apply because the water was not tidal; Re British Columbia Fisheries, [1914] A.C. 153 (P.C.); Lynn Shellfish Ltd. v. Loose, [2016] UKSC 14, at [33]–[34]. Although the normal principle is that the Crown can grant any rights in land, it gave up the right to make exclusive grants of the right to fish in tidal waters (including the right to collect shellfish from the foreshore) in Magna Carta in 1215. It is possible that such grants could be made in legislation, which in Canada would have to be federal. 9 Re British Columbia Fisheries, ibid.

94

L. Smith

Wild animals are also unowned in common law;10 in general this includes animals living in the sea or in fresh water. However, governmental licences are often required for both commercial and non-commercial hunting, trapping and fishing.11

2.1.2 2.1.2.1

Crown Property Introduction

Some Crown property can operate as a kind of commons. For example, there are very large expanses of Crown land in Canada. Crown land refers to land that belongs (as all land ultimately does in Canada) to either the federal Crown or a provincial Crown, but in respect of which the Crown has not made any grant to a private person. Very often, access to this land is not controlled (although licences may be required to take things from the land, such as animals, timber, and so on).12 But the Crown can restrict the use of its property and can exclude others from its property. Thus, the general public cannot access a military base or a judge’s office in a courthouse. In between these extremes are various possibilities, such as park land and roads, where access may be restricted in various ways such as licencing, fees, and so on. Moreover, even where the Crown seeks to control access in one way or another, its right to do so is not absolute. The government is not in the same position as a private owner, since it holds the property not for its own benefit but for that of the public. State action is restricted by the Canadian Charter of Rights and Freedoms: the government may not use its right of ownership for purposes which impede the exercise of fundamental rights or freedoms. The most often-invoked Charter freedoms in the property context are in s. 2: the freedoms of conscience and religion; of thought, belief, opinion, and expression; of peaceful assembly; and of association.13

10

Nakhuda v. Story Book Farm Primate Sanctuary 2013 ONSC 5761, 368 D.L.R. (4th) 753. In English common law, wild swans and whales belonged to the Crown as ‘royal’ animals (Case of Swans (1572) 7 Co. Rep. 15b, 77 E.R. 435), but it is not clear that these rules apply in Canada. 11 As with water, in some provinces the ownership of some wild animals, including in some cases wild fish, is vested in the provincial Crown in support of the licencing regime. The result is that if an animal is unlawfully killed or caught, it does not belong to the unlicensed hunter or fisher, as it would in common law. Conversely, when the animal is lawfully killed or caught, it belongs to the licensed hunter or fisher. Wildlife Act, R.S.A. 2000, c. W-10, s. 7(1); Fish and Wildlife Act, S.N.B. 1980, c. F-14.1, s. 3(1); Wildlife Act, R.S.N.S. 1989, c. 504, s. 4(1); Wildlife Conservation Act, R.S.P.E.I. 1988, c. W-4.1, s. 2(1); Wildlife Act, 1998, S.S. 1998, c. W-13.12, s. 23. Fish: Fisheries Act, C.C.S.M. c. F90, s. 14.2; Fish and Wildlife Act, S.N.B. 1980, c. F-14.1, s. 3(1); Fisheries Act (Saskatchewan), 1994, S.S. 1994, c. F-16.1, s. 3(1). 12 By legislation, every jurisdiction creates an offence of trespass on Crown land for persons making unauthorized use of Crown land. In most cases of undeveloped Crown land, uses such as hiking, camping or gathering would not be unlawful, while living or building on it, or dumping garbage, would be unlawful. 13 Examples of how these freedoms have been invoked are discussed below.

Property Meeting the Challenge of the Commons in Common Law Canada

2.1.2.2

95

Highways

The Crown has ownership of public roads, and any person is permitted to exercise a public right of passage.14 In the context of highways, the courts have recognized the primacy of the public’s right to travel over them, and that the rights and duties of municipalities respecting highways are conferred in view of this public right.15 The right of public passage cannot be interfered with even by the Crown itself,16 and, while a legislature can by statute modify or abolish that right, the will of the legislature must be unequivocally expressed.17 Still, the broad right of access is subject to regulation for the safety of all and for the maintenance of those public roadways. The legislature has the right to enact regulations and statutes for the safe use of the roads.18 These laws are always subject to challenge under the Charter. Ontario passed a Safe Streets Act,19 which regulates aggressive begging on public streets and solicitation of motorists in stopped vehicles on roadways. The Ontario Court of Appeal found the legislation valid and not contrary to the Canadian Charter of Rights and Freedoms.20 In R. v. Topaloski,21 a protester was acquitted of a criminal charge of causing a disturbance during the 2015 Grand Prix, partly on the ground that freedom of expression in the streets is protected by the Charter. In Vancouver v Zhang, protestors set up posters, a billboard and a hut on a city street as part of a campaign to raise awareness of the persecution of a certain religion in a foreign country.22 The city invoked its by-laws to demand the removal of these things. The BC Court of Appeal held that the protestors were exercising their Charter-protected freedom of expression. The relevant by-law was found to be unconstitutional.

2.1.2.3

Parks

There is a wide range of parks owned by all three levels of government: national, provincial and municipal. Some are for a whole range of outdoor activities, like

14

In cities and towns which are incorporated, roads, parks, schools, and so on will usually belong to the city or town. 15 Sanderson v. Sophiasburgh (Township) (1916), 38 O.L.R. 249 (C.A.); Pittaluga v. Sidney (Township) (1998), 49 M.P.L.R. (2d) 253 (Ont. Div. Ct.). 16 Ontario (Hydro-Electric Power Commission) v. Grey (1924), 55 O.L.R. 339 (C.A.). 17 Ontario (Hydro-Electric Power Commission) v. Grey, ibid; Big Point Club v. Lozon [1943] O.R. 491 (H.C.). 18 R. v. Kaasgaard 2011 MBQB 256. 19 Safe Streets Act, 1999, S.O. 1999, c. 8. 20 R. v. Banks 2007 ONCA 19. 21 2017 QCCM 90, especially [74]–[77]. 22 Vancouver v. Zhang 2010 BCCA 450.

96

L. Smith

camping and skiing, while others are small city parks with playgrounds. The public’s access to and use of parks is limited by regulations, which may authorize opening and closing hours and access fees, and may forbid certain activities. These spaces are dedicated to the public for their benefit, education and enjoyment, and the parks must be maintained and made use of so as to be enjoyed by future generations.23 In Victoria v. Adams,24 about 70 homeless persons set up tents and shelters in a city park in Vancouver, when the number of homeless persons exceeded the places available in public shelters. The city sought to enforce a by-law that forbade the setting up of any shelter in a public park. The homeless persons argued that this infringed their Charter right to life, liberty and the security of the person (s. 7). The British Columbia Court of Appeal upheld that argument, and found the by-law to be unconstitutional. In Batty v. Toronto,25 the Ontario Superior Court upheld a trespass and eviction notice that the City of Toronto issued against protesters who had put up a tent city in a city park as part of the Occupy movement. The protesters challenged the city’s by-laws, invoking the Charter freedoms of conscience, expression, peaceful assembly, and association, but were unsuccessful. Mr. Justice Brown concluded that by appropriating the park for their own use, the protesters unjustly excluded other members of the public: ‘The Charter offers no justification for the Protesters’ act of appropriating to their own use—without asking their fellow citizens—a large portion of common public space for an indefinite period of time.’

2.1.2.4

Water

As mentioned earlier, in common law water in its natural state is unowned. In some provinces, ownership of water is vested by statute in the provincial Crown.26 The ownership of the beds of tidal waters vests in the Crown. The beds of non-tidal waters may be in private or public ownership, depending on the precise wording of the original Crown grant. When these grants are interpreted, the common law has a presumption that a grant of land adjacent to a non-tidal river or stream includes the bed, to the mid-line of the watercourse. The presumption always gives way to clear wording to the contrary in the original grant.

23

See e.g. Canada National Parks Act, S.C. 2000, c. 32, s. 4(1); Territorial Lands Act, R.S.C. 1985, c. T-7, s. 23(b); see also legislation for provincial parks, e.g. (Manitoba) Provincial Parks Act, C.C.S.M. c. P20, s. 4. 24 2009 BCCA 563. 25 2011 ONSC 6862. 26 See for example Water Act, R.S.A. 2000, c. W-3, s. 3(2): ‘The property in and the right to the diversion and use of all water in the Province is vested in Her Majesty in right of Alberta except as provided for in the regulations.’ Similar legislation exists in British Columbia, Manitoba, and Saskatchewan.

Property Meeting the Challenge of the Commons in Common Law Canada

97

On navigable waters, whether tidal or not, the public has a right of navigation, that has been recognized as paramount and superior to all others.27 When the water freezes, the right of navigation becomes a right of passage over the ice.28 The public right of passage on navigable waters does not carry a public right of way across private land. Thus where a lawful dam prevented canoeists from passing along a river, this did not give them a right to enter upon the private property of a landowner to go around the dam.29 The right of navigation, being only a right of way, does not warrant roving or rambling over the fishing or fowling parts of navigable waters, where the beds are privately owned. The right of navigation, where it exists, is to be used so as not to disturb or interfere unnecessarily with the enjoyment of the subordinate private rights of fishing and shooting.30

2.1.2.5

Publicly-Owned Facilities That Are Open to the Public

In Committee for the Commonwealth of Canada v. Canada,31 the Supreme Court of Canada held that the federal government could not rely on federal regulations to stop members of the public from distributing leaflets in an airport.32 The Crown’s ‘right to exclude’ was subject to the Charter-protected freedom of expression (s. 2). The Court noted that the public’s right to express itself on Crown property was not unlimited.33

2.1.2.6

Conclusion

Much Crown property is factually open to all, although some activities may be regulated. As a starting point, all access to Crown property is subject to the Crown’s right to exclude, which can be expressed in a wide variety of regulations; however, that right to exclude is always subject to the Charter of Rights and Freedoms.

27

Arsenault v. R. (1916), 16 Ex. C.R. 271; Esson v. Wood (1884), 9 S.C.R. 239; Caldwell v. McLaren (1884), L.R. 9 App. Cas. 392 (Ontario P.C.); Moore v. R. (1915), 16 Ex. C.R. 264. 28 Lake Simcoe Ice & Cold Storage Co. v. McDonald (1900), 31 S.C.R. 130; Cullerton v. Miller (1894), 26 O.R. 36 (Q.B.). 29 Canoe Ontario v. Reed (1989), 69 O.R. (2d) 494 (H.C.). 30 Beatty v. Davis (1891), 20 O.R. 373 (Ch.); Canoe Ontario v. Reed, ibid. 31 [1991] 1 S.C.R. 139. 32 The airport was in Montreal and so the applicable property law was Quebec law, but the Charter principles apply nationally. 33 For example, L’Heureux-Dubé J. gave the examples that the public could not demonstrate in the air traffic control tower, in prison cells or in a judge’s offices.

98

2.1.3

L. Smith

Private Property

2.1.3.1

Right to Exclude

In general, a private owner can exclude any and all trespassers, including those who are for all practical purposes harmless.34 In the common law, every invasion of private property, no matter how minute, is an actionable trespass, without any need to show damage or loss. Trespass is a private wrong, and is one of the most important torts since it protects both moveable and immovable property.35 Under provincial legislation in some provinces, however, a trespass to land can also be a provincial offence once the trespasser has been told to leave.36 This means that a landowner can call upon the police to enforce his or her rights, including by arresting a trespasser. 2.1.3.1.1

Highways

In ordinary English, a ‘highway’ is road that is publicly owned and maintained, and the word is more likely to be used in relation to a large road as opposed to a city street. However, the word has a more technical meaning in the common law. If a landowner has let the public pass over his land, in common law this may create a public right of way, which is traditionally called a ‘highway’ (although there is no requirement that it be paved or marked). This requires (a) dedication by the owner and (b) acceptance by the public. Dedication and acceptance can both be implicit, and in practice they are usually both proved by long and open use. These principles are not found in a statute, and there is no fixed time for the period of use that allows the finding that they have occurred. In Canada, it has been accepted that these principles can give rise not only to a right to pass over private land (as is usual in a ‘highway’) but also a public right of use of private land for recreational purposes.37 However, if the dedication and acceptance are not clear and express, an inference that they have occurred will usually require the passage of a substantial amount of time.38 34

Maras v. Milianis 2014 ONSC 3449. As for the liability of the owner or occupier of the land to an injured non-owner, the old common law drew distinctions between different classes of visitors to property; they were invitees, licensees, or trespassers. In the case of trespassers, it was almost impossible to make the occupier liable even if he was careless (for example in creating an unfenced pit). All common law provinces now have ‘occupier’s liability’ statutes, based on an English model, that eliminate the distinctions between visitors and demand reasonable care on the part of the owner or occupier. For an example, see Simmons v. Yeager Properties Inc. 2014 BCCA 201. 36 E.g. Trespass to Property Act, R.S.O. 1990, c. T.21. 37 Gibbs v Grand Bend (Village) (1996), 26 OR (3d) 644 (CA); two of three judges based their reasoning on dedication of a privately-owned beach to public recreational use. Compare the English case of R v. Doncaster Metropolitan Borough Council, ex parte Braim (1986) 57 P & CR 1 (QBD), in which a common belonging to a town was found to have been dedicated to public recreation; from the fact of long use by the public, the court inferred the creation of a trust for the public. 38 In Gibbs the use was for almost a century; in Doncaster, even longer. 35

Property Meeting the Challenge of the Commons in Common Law Canada

2.1.3.2

99

Rights of Common

If the word ‘commons’ has any technical meaning in the common law tradition, it is probably to refer to certain rights that are held by a fluctuating group of persons to take some product or thing of value from privately owned land.39 English law recognizes a whole range of such rights, including rights to graze animals, to fish, or to take wood or peat for fuel or other purposes.40 These are part of the category known as profits à prendre (an expression from old French law), which are rights to take something from land that one does not own. Unlike in a highway, the benefit of the right does not belong to the general public, but usually to a local group such as the inhabitants of a manor or village. In England, most of these rights have been established by their use since time immemorial. This is understood to be impossible in common law in Canada. The reason is that a claim to use since time immemorial will be defeated if the defendant can prove that the right was not exercised at some time after the year 1189. Since European colonists only arrived in the sixteenth century, such claims could not work except in relation to claims of aboriginal right or aboriginal title, and in Canada these claims are not understood as belonging to common law conceptual categories such as profits à prendre or easements. They are proved according to their own principles, which are discussed below. It is possible to create profits à prendre by express grant in common law in Canada, but probably not as a commons. A person can grant to another a right to take fish, or wood, or other things of value.41 Such a right is called a ‘several profit’, being a kind of profit à prendre that is held by a single person. This is not a commons. It is not possible to make an express grant to a fluctuating group of persons. Since rights of commons cannot be created by grant, and since in Canada they cannot be established by use since time immemorial, they are not found in Canada as they are in England.

2.1.3.3

Freedom of Expression on Privately Held Land

In Harrison v. Carswell,42 an employee of a business that was a tenant in a popular shopping centre was charged for the provincial offence of trespass, for peacefully

39

Cousins and Honey (2012), pp. 55–60; Bridge et al. (2019), pp. 1170–1176. A right to take water is not understood to fall into this category. It can be the subject matter of an easement, but an easement exists between two adjacent plots of land and benefits the holder of one of them from time to time; it does not belong to a group of persons or to the public. 41 This could include minerals if they are in private ownership. Most Crown grants in Canada, except some very old ones, reserve to the Crown all mineral rights so that the surface owner does not have the mineral rights. They can be dealt with separately by the Crown, usually through a licensing arrangement that is not an outright transfer, and which therefore allows the Crown to stipulate for a royalty on the minerals that are extracted. For typical statutes regulating the exploitation of minerals, see the (Alberta) Mines and Minerals Act, R.S.A. 2000, c. M-17; (Ontario) Mining Act, R.S.O. 1990, c. M.14. 42 [1976] 2 SCR 200. 40

100

L. Smith

picketing outside her employer’s premises.43 It was not the employer but the owner of the shopping centre that brought the complaint. The police arrested the employee and the question was whether the employee had acted lawfully. The Supreme Court of Canada upheld the trespass conviction, by a majority of 6-3, with the majority saying (partly on the basis of a binding precedent) that a shopping centre is private land and the owner has the right to exclude whomever he or she wishes. The majority declined the invitation to consider the social values at stake. There was, however, an impassioned dissent written by Chief Justice Laskin, who argued that in the modern world a shopping centre is a kind of public space: The considerations which underlie the protection of private residences cannot apply to the same degree to a shopping centre in respect of its parking areas, roads and sidewalks. . . . This is a use of theory which does not square with economic or social fact under the circumstances of the present case.44

The case is still considered an important illustration of the limits of private property and the different perspectives that can be taken on the question.45 The case was decided before the advent of the Charter, with its protection for freedom of expression.46 The Charter cannot generally be used to control the actions of private persons, and does not generally change private law. But it can control the validity and interpretation of penal legislation that protects private property rights. In this sense, the use of provincial legislation creating an offence of trespass, as in Harrison itself, can cut both ways: landowners may find it quicker to invoke such legislation than to bring private law actions, but legislation is always subject to Charter scrutiny. In a later case involving a labour dispute, the judge held that the trespass legislation infringed the accused’s Charter freedoms of expression and association.47 In principle this would leave the shopping centre owner free to enforce its private law rights in trespass, but without the assistance of the police. A case in another province held that in the absence of legislation making trespass an offence, a shopping centre owner could not withdraw permission to enter from some picketers, while allowing it to other members of the public.48 In Ontario, rules of labour law have been used against mall owners to prevent them from excluding picketers.49 There have also been questions as to whether property law has been used to unlawfully exclude members of racialized communities from shopping centres.50

43 See Section 3 (a) above, for how provincial legislation in some provinces can turn the private law tort of trespass into a provincial offence. 44 At 207-8. Laskin CJC also invoked the civilian idea of abuse of right. 45 Litman (1991), p. 361; Girard and Phillips (2010), p. 249; Loader (1992), p. 254. 46 The Charter came into force in 1982 (s. 15, on equality rights, in 1985). 47 R. v. Layton (1986) 38 CCC (3d) 550 (Ont. Prov. Ct. Crim. Div.). 48 Bramalea Ltd. v. Stevens [1980] 2 W.W.R. 638 (Sask. Q.B.). 49 RWDSU v. T Eaton Co. (1986) 10 Can LBR (NS) 289, aff’d 71 OR (2d) 206 (CA). 50 Parkdale Community Legal Services (1997), p. 819.

Property Meeting the Challenge of the Commons in Common Law Canada

2.1.4

101

Aboriginal Proprietary Interests

An important example of communally-held interests in land, or relating to land, exists in the context of Aboriginal law as it has developed in Canada. ‘Aboriginal title’ is by definition a communally-held interest in land. Aboriginal title, as it is understood in Canada, emerged over time in a series of Supreme Court of Canada decisions, and the first declaration of Aboriginal title over land occurred in 2014.51 Aboriginal title and Aboriginal rights are recognized and affirmed in s. 35 of the federal Constitution Act 1982. Recent case law reveals a more expansive recognition of aboriginal title and aboriginal rights than has occurred in the past. However, many scholars, including scholars who self-identify as members of First Nations, argue that the case law still reveals the influence of colonialist assumptions.52

2.1.4.1

Aboriginal Title

While Aboriginal title in Canada was first described in the nineteenth century as a ‘personal and usufructary right’,53 over time it has come to be understood as a more robustly protected interest. Aboriginal title is now defined as a sui generis interest in land whose source is the physical fact of occupation before the assertion of Crown sovereignty over the land in question. Aboriginal title is not equivalent to a fee simple estate, which is the most expansive estate in land recognized by the common law and economically equivalent to civilian ownership. Aboriginal title is held communally, and it includes the right of exclusive use and occupation of land.54 The right is common not in the sense that it is available to anyone; rather, it is a right held in common by an aboriginal community, based on historical continuity. Aboriginal title further bears the following limits: it is inalienable except to the Crown,55 and has an ‘inherent limit’ such that lands held pursuant to Aboriginal title cannot be used in a manner irreconcilable with the nature of the group’s attachment to the land.56 The full contours of Aboriginal title’s ‘communal’ nature have not been outlined in detail by the Supreme Court of Canada. The test for establishing Aboriginal title requires the proof of three elements relating to occupation: sufficient occupation before the colonial occupation; continuous occupation since that time; and exclusive occupation by the claiming community.57

51

Tsilhqot’in Nation v. British Columbia 2014 SCC 44, [2014] 2 S.C.R. 257. Borrows (2015), p. 701. 53 St. Catherine’s Milling and Lumber Co. v. The Queen (1888) 14 App. Cas. 46 (P.C.), at 54. 54 Delgamuukw v. British Columbia, [1997] 3 S.C.R. 1010 at [114]–[117]. 55 Delgamuukw, ibid., at [129]. 56 Delgamuukw, ibid., at [117], [128]. 57 Delgamuukw, ibid., at [143]–[159]; Tsilhqot’in Nation v. British Columbia, [2014] 2 S.C.R. 257, 2014 SCC 44, at [24]–[50]. 52

102

L. Smith

The State’s relationship to Aboriginal peoples is constrained by two concepts: (1) the ‘honour of the Crown,’58 and (2) the Crown’s fiduciary obligations to Aboriginal peoples.59 The honour of the Crown requires that the Crown act in good faith in all dealings and negotiations; it is a concept that is understood to infuse every treaty and the performance of treaty obligations.60 Accordingly, a duty to consult emerges whenever the Crown—federal or provincial—is or should be aware that the contemplated state action could adversely affect an Aboriginal claim or right.61 The Crown’s fiduciary obligation requires that when the Crown is dealing with land in which Aboriginal persons have rights, it must act in what it perceives to be their best interests. Aboriginal title is not absolute; it may be impaired, diminished or extinguished by a valid exercise of government power.62 Since Aboriginal title is constitutionally protected, however, such a government action is subject to judicial review to ensure that it is lawful. The Crown is under a duty to consult the affected group before acting to impair their rights. In order to effectively override Aboriginal title, the Crown must show that it complied with its duty to consult; that its actions were aimed at the achievement of a ‘compelling and substantial’ governmental objective; and that the governmental action is consistent with the Crown’s fiduciary obligation to the group.

2.1.4.2

Aboriginal Rights

Aboriginal rights are rights to conduct certain activities, rather than rights in the land. They are activities that are elements ‘of a practice, custom or tradition integral to the distinctive culture of the aboriginal group claiming the right.’63 Such rights could include hunting, trapping, logging, and fishing. Where the test for Aboriginal title is not met, Aboriginal rights may nonetheless exist.64 In other words, an Aboriginal community may have the right to hunt or trap on certain land, even though they do not have Aboriginal title to that land. Like Aboriginal title, Aboriginal rights are not absolute but may be impaired, diminished or extinguished by a valid exercise of government power.65

58 R. v. Van der Peet, [1996] 2 S.C.R. 507, at [24]; Manitoba Metis Federation Inc. v. Canada (Attorney General), [2013] 1 S.C.R. 623, 2013 SCC 14. 59 Guerin v. The Queen, [1984] 2 S.C.R. 335. 60 Mikisew Cree First Nation v. Canada (Minister of Canadian Heritage), [2005] 3 S.C.R. 388, 2005 SCC 69. 61 Haida Nation v. British Columbia (Minister of Forests), 2004 SCC 73, [2004] 3 S.C.R. 511; Tsilhqot’in Nation, ibid. 62 Tsilhqot’in Nation, ibid., [77]–[88]. 63 R. v. Van der Peet, at [46]. 64 R. v. Van der Peet, ibid.; see also R v Côté, [1996] 3 S.C.R. 139. 65 R. v. Sparrow, [1990] 1 S.C.R. 1075, affirmed in Tsilhqot’in Nation, [77]–[88].

Property Meeting the Challenge of the Commons in Common Law Canada

2.1.5

103

Intellectual Property

In Canada, most aspects of intellectual property rights are governed by federal legislation.66 There are some aspects of intellectual property rights that can be considered to be commons.

2.1.5.1

Public Domain

This expression to some extent merely refers to an absence of intellectual property rights; it can be applied whenever intellectual property rights expire, or have been renounced. For example, under current legislation, copyright works enter the public domain 50 years after the author’s death. The Supreme Court of Canada incorporates concern for a robust public domain in its copyright decisions. In Théberge v. Galerie d’Art du Petit Champlain inc., Binnie J. identified the importance of ‘copyright balance,’ writing: ‘Excessive control by holders of copyrights and other forms of intellectual property may unduly limit the ability of the public domain to incorporate and embellish creative innovation in the long-term interests of society as a whole, or create practical obstacles to proper utilization.’67 Other forms of intellectual property have different terms.

2.1.5.2

Fair Dealing

Fair dealing is a limitation on existing copyright prerogatives. It allows the public to make some uses of copyright material without needing to seek the permission of the copyright holder. The fair dealing exception to copyright infringement has been given a relatively robust and broad protection in Canada due to reforms to the Copyright Act68 and in judicial opinions. Categories of use falling under the ‘fair dealing’ exception are identified in Sections 29, 29.1 and 29.2 of the Copyright Act. These include: research, private study, education, parody or satire (s. 29); criticism or review (s. 29.1); news reporting (s. 29.2). Fair dealing is considered to fall under the category of ‘users’ rights,’ whose importance was recognized by the Supreme Court in a leading case.69

66

Federal law governs patents, copyright, trademarks, industrial designs and integrated circuit topographies. Provincial law governs trade secrets, and also contractual aspects such as licensing. 67 At [32]. 68 R.S.C. 1985, c. C-42. 69 CCH Canadian Ltd v, Law Society of Upper Canada [2004] 1 S.C.R. 339; see also Théberge at [30]: ‘The Copyright Act is usually presented as a balance between promoting the public interest in the encouragement and dissemination of works of the arts and intellect and obtaining a just reward for the creator. . . . The proper balance among these and other public policy objectives lies not only in recognizing the creator’s rights but in giving due weight to their limited nature.’

104

L. Smith

2.1.5.3

Compulsory Licensing

Compulsory licensing is a limitation on existing patent law protections. It allows the government to require a patent holder to licence its patent to another person. It is available only on extraordinary humanitarian grounds or on the grounds of patent abuse.70

2.2

Is There Today or Was There in the Past a Concept of the Commons in Your Legal System? In the Affirmative, Is It Statutory, Jurisprudential, Doctrinal or Customary?

In the Canadian common law, there is no statutory definition of ‘commons’, nor is there a single common law meaning. The concept is typically used in a non-technical way, and occurs in a variety of contexts. That is, there are many structures that are legally diverse but that might reasonably be called commons, or cases of common property. These are discussed in the previous answer.

2.3

Is There an Academic Debate on the Notion of Commons in Your System?

There is not a large body of literature specifically on the topic of common property. In 1978, the political scientist C.B. Macpherson identified three types of property: common property, private property, and state property. He defined common property as ‘the guarantee to each individual that he will not be excluded from the use or benefit of something.’71 In addition to formulating a definition, Macpherson made two important claims regarding common property. For Macpherson, common property ‘turns out to be the most unadulterated kind of property.’72 Secondly, his definition of common property had broader implications for citizens in liberaldemocratic societies: ‘When property is so understood, the problem of liberal democratic theory is no longer a problem of putting limits on the property right, but of supplementing the individual right to exclude others by the individual right not to be excluded by others.’73 70

Patent Act, R.S.C. 1985, c. P-4, ss. 21.01-21.19, 65–66. Macpherson (1978), p. 5. 72 Ibid at 6: ‘For common property is always a right of the natural individual person, whereas the other two kinds of property are not always so: private property may be a right of either a natural or an artificial person, and state property is always a right of an artificial person.’ 73 Ibid at 201. 71

Property Meeting the Challenge of the Commons in Common Law Canada

105

There has been a resurgence in interest around common property since the financial crisis and the Batty case.74 One author argued for a view of government property as held in trust.75 Another author provided a broader appraisal of theoretical conceptions of common property, drawing on Macpherson, Ostrom, Rose, Epstein, and others.76 There is a great deal of literature on Aboriginal title and Aboriginal rights, and on the justification and limits of intellectual property rights. In addition to Canadian works in English, civilian authors and conceptions of property can influence the Canadian common law. Also, American authors such as Elinor Ostrom, Carol Rose, David Lange, Richard Epstein, and Joseph Sax have had an important influence. Aside from academic literature, the second important strain of debate has been developed through Charter challenges to the state management of public property. Many of the cases are mentioned above (Sect. 2.1).

2.4

Is There Any Kind of Public Property in Your Legal System That Is Absolutely Not Alienable?

In the common law, the label ‘public property’ may refer to unowned property, or to property owned by the Crown. Air and the water in the sea are unowned, although they may be appropriated and so owned privately and alienated. Fresh water is often unowned, although there are limits as to how much can be taken.77 Most government property can be alienated to private owners. However, the beds of the sea and of tidal waters are vested in the federal Crown, and these might be inalienable. It has been held that the right to fish in those waters remains forever in the public domain and cannot be granted by the Crown to any single individual, except perhaps by legislation.78

74

Discussed in Sect. 2.1.2.3. Hamill (2012), p. 365. See also Hamill (2017), p. 157. 76 Robertson (2016), p. 563. 77 These limits are discussed in Sect. 3.4. As that answer notes, in some provinces fresh water belongs to the provincial Crown, in support of licencing regimes. 78 See note 9. 75

106

2.5

L. Smith

Are There Remedies in Your Legal System for Someone to Challenge a Government That Decided Privatization of the Commons?

Government action is always reviewable for its conformity with the law. The government has the authority to dispose of or lease Crown land according to statute.79 The disposition of Crown land may take place pursuant to a variety of processes, including for example application, public auction, public notice of tender, drawing of lots, and more.80 The Crown may also impose terms or conditions with regard to the land: for example, requirements that the applicant personally occupy and reside on the land; restrictions on the purposes for which the land may be used or sold; or a prohibition of the sale of the land for a certain period of time.81 As for other assets, they can also be sold by the government. If the proper procedural steps are taken by the government, the only recourse on the part of those who object to a privatization is likely to be political. A recent example is the current Liberal government’s off-and-on consideration of the privatization of airports82 and seaports,83 which continue to generate public debate and concern. In Canada, the term ‘Crown corporation’ is used to refer to a corporation that is controlled by one of the Crowns.84 These have an important influence on Canada’s economic, transportation and energy infrastructure. At the federal level, they are governed by the Financial Administration Act, the Government Corporations Operation Act, and their enabling statutes. Being a Crown agency does not necessarily mean that a Crown corporation is carrying out a governmental function and subject to the Charter, so a court will adjudicate behaviour on a case-by-case basis.85 Where there is a question of the privatization of crown corporations, recourse is likely to be political. Notable examples of crown corporation privatizations include: Air Canada (1988); Canadian National Railway (1995); Ontario Hydro (1999); Potash Corporation of Saskatchewan (1989); and the Saskatchewan Wheat Pool (1996). In 1999 the federal government transferred air traffic control from a

79

See, e.g., (Federal) Federal Real Property and Federal Immovables Act, S.C. 1991, c. 50; (Federal) Territorial Lands Act, R.S.C. 1985, c. T-7; (Alberta) Public Lands Administration Regulation, Alta. Reg. 187/2011; (BC) Land Act, R.S.B.C. 1996, c. 345; (Nova Scotia) Crown Lands Act, R.S.N.S. 1989, c. 114. 80 See, e.g., (BC) Land Act, R.S.B.C. 1996, c. 345, s. 13(1). 81 See, e.g., (Alberta) Public Lands Act, R.S.A. 2000, c. P-40, s. 22(1)(a). 82 See Chong (2017). 83 CBC News (2017). 84 For information on federal Crown corporations, see Government of Canada (2019), Inventory of Federal Organizations and Interests at https://www.canada.ca/en/treasury-board-secretariat/ services/reporting-government-spending/inventory-government-organizations.html. Accessed on 22 June 2022. 85 McKinney v. University of Guelph (1987), 63 O.R. (2d) 1 (C.A.).

Property Meeting the Challenge of the Commons in Common Law Canada

107

government agency to a private corporation, called Nav Canada; however, although private, this corporation is not-for-profit.86 Canada is one of the most active markets in the world for public-private partnerships. Long-term contractual partnerships between the public and private sectors are increasingly being used to finance infrastructure projects. Recently, there has been an increase in transportation-related projects, particularly suburban highways and light-rail transit projects. Wastewater treatment, waste management plants, and power transmission lines are also being developed. It is possible that the expansion of PPPs will influence the future management of property to which ‘common’ rights might be attached.

2.6

Are There Remedies in Your Legal System for Someone to Challenge in Court a Government That Decided Nationalization of the Commons?

As explained above (Sects. 2.1 and 2.4), a great deal of property that would be considered commons in Canada is vested in one or another government. In this sense, commons are already nationalized. There is no ownership ‘by the people’ that is juridically distinct from ownership by the State, in one or another manifestation.87 This question could be answered however by considering a situation in which some asset of the State were transferred into the domain of a publicly-controlled entity. For example, a provincial government might create a water utility company to distribute and charge for fresh water; or, the federal government might take unregulated Crown land and turn it into a national park, requiring the payment of fees to enter. In these cases, if the proper procedural steps are taken by the government, the only recourse on the part of those who object is likely to be political. If the commons at issue were already in some kind of private ownership, then nationalization would require expropriation. It is possible for governments to expropriate private property, putting it to a more communal use. Legislation governs any attempt by the Crown to acquire any interest in land that is required for a public work or other public purpose.88 The expropriation of property is one of the ultimate exercises of governmental authority. To take all or part of a person’s property constitutes a severe loss and a very significant interference with a citizen’s private property rights. It follows that the power of an

86 It has no shareholders. Its board is elected or appointed by stakeholders including the government, the airlines, the air traffic controllers’ union and other stakeholders. Its operations are funded by fees collected from airlines and passed on to passengers. Nav Canada (2015). 87 One exception may be the right to fish in tidal waters, which the Privy Council held is not dependent on ownership of the bed or any proprietary right: see note 9. 88 Expropriation Act, R.S.C. 1985, c. E-21, s. 4(2) to 4(7). The provinces have their own legislation.

108

L. Smith

expropriating authority should be strictly construed in favour of those whose rights have been affected.89

There is no constitutionally-protected right to the enjoyment of property in Canada. A pre-Charter federal statute, the Canadian Bill of Rights,90 guarantees the right to enjoyment of property and the right not to be deprived thereof except by due process of law (s. 1(a)). Thus citizens are guaranteed ‘notice and some opportunity to contest a governmental deprivation of property rights only in the context of an adjudication of that person’s rights and obligations before a court or tribunal,’91 but this is a procedural right. It does not guard against the expropriation of property by the passage of valid, unambiguous legislation.92 If it is found to be in the public interest to expropriate lands held by First Nations, the Crown is bound by its fiduciary duty to ‘expropriate or grant only the minimum interest required in order to fulfill that public purpose, thus ensuring a minimal impairment of the use and enjoyment of Indian lands by the band.’93 As for governmental extinguishment of Aboriginal title or Aboriginal rights, this is possible but requires consultation and minimal impairment.94

2.7

To What Extent Private Property Is Considered a Fundamental Right in Your Legal System, and What Other Constitutional Rights Could Defeat It in a Balancing Test?

As mentioned in Sect. 2.6, property rights are not constitutionally protected, except by a procedural requirement. Thus governments can, if they follow correct procedures, override private property rights. As explored Sect. 2.1.2, the government’s rights in relation to its property are always subject to the constitutional rights of citizens. These contests necessarily involve a balancing test, particularly because under the Charter’s s. 1, the government can attempt to justify infringements; under that provision, all Charter rights and freedoms are subject to ‘such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.’

89

Toronto Area Transit Operating Authority v. Dell Holdings Ltd., [1997] 1 S.C.R. 32 at [20]. S.C. 1960, c. 44. The Canadian Bill of Rights is technically only a statute and could be repealed, but it is understood by most to have some quasi-constitutional status. 91 See Authorson v. Canada (Attorney General), [2003] 2 S.C.R. 40 at [5], [51] and [63]. 92 Ibid at [42]. 93 See Osoyoos Indian Band v. Oliver (Town), [2001] 3 S.C.R. 746 at [52]. 94 See Sect. 2.1.4. 90

Property Meeting the Challenge of the Commons in Common Law Canada

2.8

109

Private Property Is an Institution Aimed at Allowing Exclusion from Land. Is There Any Limit to Such a Power of the Owner to Exclude Justified by a Right of Access of the Private Non-owner?

Generally the answer is ‘no.’ Aside from examples such as the right of navigation across navigable waters, or the right of use of a highway as explained above (Sect. 2.1), there is not a developed notion of ‘access’ in the Canadian common law. Nova Scotia’s Angling Act provides for a right to go upon land, river streams, or lakes for the purpose of fishing, subject to the duty to compensate the owner for any damage caused.95 There was a recent attempt to introduce similar ‘right to roam’ legislation in the province of British Columbia.96 The Bill responded to the increasing enclosure of privately-owned wild areas and forests in BC, the effect of which is to block access to public lakes and lands.97 Taking its example from Nova Scotia and other jurisdictions (notably the UK, Sweden, Norway, Maine, and Washington), Bill M 223 would have permitted recreationalists to travel on foot along waterbanks, uncultivated and Crown lands, and guaranteed compensation to landowners for any damage. After a first reading in the Legislature, the Bill failed to garner political support. Among the concerns raised in the debate around ‘access’ in Canada is occupier’s liability, which means the liability of the owner or occupier of land to those who are on the land. Occupier’s liability is governed by statutes which differ from province to province, and the rules pertaining to recreationalists or other categories of persons seeking access are complex. These statutes were passed during the twentieth century as a reaction against the old common law rules which made it very difficult for a person on another’s land to recover for injury, even if the landowner had been careless.

95

See Angling Act RSNS 1989 c 14, s.3: (1) Any resident of the province shall have the right to go on foot along the banks of any river, stream or lake, upon and across any uncultivated lands and Crown lands for the purpose of lawfully fishing with rod and line in such rivers, streams or lakes. (2) Any resident of the Province shall have the right to go on, upon or across any river, stream or lake in a boat or canoe or otherwise, for the purpose of lawfully fishing with rod and line in such rivers, streams or lakes. (3) The rights conferred by this Section shall not in any way limit or restrict the right of any owner or occupant to compensation for actual damages caused by any person going upon or across such lands for the purpose aforesaid, and shall not be construed to give the right to build any fires upon such lands. 96 See Bill M 223 – 2017 Right to Roam Act, 2017, available online: https://www.leg.bc.ca/ parliamentary-business/legislation-debates-proceedings/40th-parliament/6th-session/bills/first-read ing/m223-1. Accessed on 25 June 2022. 97 As far back as 1962, a Special Committee on Public Access to Private Roads recommended consideration of a Public Access Act. The report is available as an appendix to Litman and Hulse, “Enhancing Public Access to Privately Owned Wild Lands” (2016), available online: http://www. elc.uvic.ca/publications/enhancing-public-access-to-privately-owned-wild-lands/. Accessed on 9 January 2023.

110

L. Smith

Aside from creating a positive right of access, another means of promoting access to land would be to modify occupiers’ liability legislation to exclude liability for injury to recreational users.98 Paradoxically, this would be a partial return to the old rules that favoured the sanctity of ownership against the security of the person of the visitor.

3 Questionnaire: Part II 3.1

Housing

John, Orri, Sekela and Satoshi, desperate to find a home at an affordable cost, together with their families (including several children) inhabit homes in a development project, suspended due to delayed authorizations. The four friends and their families work on both the buildings and the land to enhance their living conditions (for instance, by painting the walls and adding a little garden). After a couple of months, the legal manager of the land discovers the four families and attempts to remove them. The families refuse to leave and the manager brings a claim against them. J, O, Se, and Sa likely have no defence. A person who holds an estate in land has a better right to occupy the land than someone who occupies the land without right. Although the civil procedure framework will be different in the various provinces, in common law we frequently use the old name ‘ejectment’ for a claim to recover land. Unless the limitation period has passed, which typically requires twelve years or more of open and continuous possession by the non-owner, the landowner can eject J, O, Se, and Sa. It is no defence that they do not have another place to live, and it is no defence that they have made improvements. J, O, Se, and Sa might claim for the value of the improvements. This could be made as a counterclaim to the ejectment claim, and then would be resolved with it in one proceeding. Such a claim would be considered a claim in unjust enrichment. It is unlikely to succeed. Some provinces have a statute that provides some relief for improvers to land, but these statutes only operate in a case of mistake, that is, where the improver thought that he held an interest in the land; moreover, they require lasting improvements. In general, the common law does not offer any relief to an occupier who improves land without the request or acquiescence of the landowner. Large cities in Canada have temporary shelters for homeless persons. The availability of subsidized or otherwise affordable housing is variable, and is a matter of ongoing political debate. Some cities have made this part of their urban planning

98

See, for example, (BC) Occupiers Liability Act, R.S.B.C. 1996, c. 337, s. 3, amended in 2012 so that the landowner is not liable to one who enters rural land for recreational activity (without paying a fee), unless the landowner acts with reckless disregard or creates a danger for that person.

Property Meeting the Challenge of the Commons in Common Law Canada

111

and may make development approvals for new construction conditional on the creation of some affordable units.

3.2

Health Care

Together with other people from her neighborhood, Emanuela has organized a volunteer non-profit medical clinic in what appeared to be an abandoned building offering free services to irregular migrants who have no health insurance. Soon after, Syntech Corporation, the owner of the building, realizing that the market value of the building has increased since they acquired it, decides to sell it at a profit. Syntech would like Emanuela and her volunteers out of the building within a few days in order to sell it, and initiates an eviction action. Many people in the area are upset by this news. Emanuela defends. The principles mentioned in Sect. 3.1 apply. E has no defence. The use she wishes to make of the building does not change the landowner’s right to evict her. How quickly the eviction can proceed depends mainly on the terms of her agreement with S Corp (which may be a lease or a licence), and also on civil procedure, which varies by province. Eviction is likely to be quicker in a case where no one is actually living in the building. Under the Canadian Charter of Rights and Freedoms, there is a right to ‘life, liberty and security of the person’ and this has implications for health care. This right is held by every person physically in Canada, regardless of their immigration status.99 Health care is provided by the provinces via a universal public health system that also receives substantial funding from the federal government. In support of the public system, the private provision of basic medical services for payment is generally banned by each province. However, this ban itself was held to be a violation of s. 7 where it meant that patients were suffering because of long waiting lists in the public system.100 In other words, patients had a right to purchase private health care services, to the extent that the public system was not providing timely treatment.101 The decision was made by a 4-3 majority, and one of the four judges in the majority based her decision on the Quebec Charter, with the result that there was not a clear majority on the effect of the federal Charter. For this reason, the effect of the holding in other provinces is unclear. It is also unclear to what extent s. 7 may require the provision of services to people who cannot afford to pay for them. The Charter has generally not been read as requiring positive governmental action, and the Supreme Court of Canada has

99

Singh v. Minister of Employment and Immigration, [1985] 1 S.C.R. 177. Chaoulli v. Quebec (Attorney General), [2005] 1 S.C.R. 791, 2005 SCC 35. 101 The implication is that the ban on private services is not necessarily unconstitutional; it could be lawful if the public system is operating adequately. 100

112

L. Smith

said that s. 7 does not provide a ‘free-standing’ right to health care.102 Each province has a public health insurance regime that covers basic services, but visitors and recently-arrived persons are not eligible. If they do not have their own insurance, they must pay the public system for medical services. The federal government has had, since the 1950’s, an Interim Federal Health Program that provides limited, temporary coverage of health care to refugees and refugee claimants, while they are not covered by a provincial system. When the previous government made cuts to this coverage in 2012, a group of doctors challenged the cuts. The Federal Court refused to hold that the cuts were in violation of s. 7; the court held that the current state of the law is that s. 7 does not include a positive right to state funding for health care.103 The Court, however, went on to hold that the cuts were a violation of s. 12 of the Charter, which prohibits ‘cruel and unusual treatment or punishment’.104 The changes were also found to violate s. 15, which prohibits discrimination, because they drew distinctions based on country of origin. The current government, elected in 2015, restored the program and improved its coverage in some respects. There are a small number of clinics offering free medical services to those without insurance. They receive some governmental funding, but the main support is from volunteers.105

3.3

Food

Marta, Mattias, and Madison, together with their families and neighbors, cultivate a communal garden on a vacant plot of land as a food source. Max Corporation, the owner of the plot of land, discovers the three families and tells them to leave. Max Corporation brings a claim against the three families for their removal and the removal of the food grown by the families on its land. Mar, Mat, Mad et al. do not have any defence and must leave (see Sect. 3.1). As for the food, growing plants are considered part of the land and belong to the landowner.106 Mar, Mat, Mad et al. therefore do not have the right to remove

102

Chaoulli, ibid., [104]. Canadian Doctors for Refugee Care v. Canada (Attorney General) 2014 FC 651, [571]. 104 Canadian Doctors for Refugee Care, ibid.: [689] ‘For these reasons, I have concluded that while is it open to government to assign priorities and set limits on social benefit plans such as the IFHP, the intentional targeting of an admittedly poor, vulnerable and disadvantaged group takes this situation outside the realm of ordinary Charter challenges to social benefit programs.’ [691] ‘I am also satisfied that this treatment is “cruel and unusual”, particularly, but not exclusively, as it affects children who have been brought to this country by their parents.’ 105 The Canadian Centre for Refugee & Immigrant HealthCare (accessed on 9 January 2023) estimates that it has provided over $20 million of volunteer time since it was founded in 1999. Médecins du Monde Canada (accessed on 9 January 2023) has provided free medical care in Montreal since 1999. 106 Levandoski v. Levandoski, 2004 MBQB 101. 103

Property Meeting the Challenge of the Commons in Common Law Canada

113

growing plants.107 If they have already done so, the food still belongs to Max Corp., because the removal of plants does not change the ownership, even if it changes the nature of the property right.108 The food must either be returned to Max Corp. or Mar, Mat, Mad et al. can be made liable to pay compensatory damages. Max Corp. can use different types of claim depending on whether it wishes to secure damages measured by the value of the food at the time of its removal (conversion) or at the time of trial (detinue).

3.4

Water (Rural)

Maya, Malik, and Mei depend on the water of Flumia, a nearby river. The three villagers together with other villagers in the area build aqueducts and an irrigation canal from the river to their respective homes and fields. After a few years, a private corporation diverts the water of the Flumia River. Soon after, Maya, Malik, and Mei realize that water no longer flows to the aqueducts and irrigation canal from the river. Maya, Malik and Mei sue. Under the common law, a person who holds an estate in land that adjoins a river (often called a ‘riparian owner’) can divert flowing water from a river for purposes connected with the use of their land.109 Thus, if one of May, Mal or Mei holds an interest in land adjoining the Flumia, that person may divert water as long as it is for purposes connected with the land. As to the amount that may be diverted, the common law distinguishes between ordinary uses, which include domestic use and watering animals, and extraordinary uses, which include manufacturing and irrigation. If the use is extraordinary, then in order to protect those downstream the flow of the river cannot be substantially reduced in either quantity or quality.110 If none of May, Mal or Mei holds any interest in land adjoining the Flumia, they have no right to divert water from it unless they hold an easement that allows them to

107

Where crops are grown by person with an interest in the land (such as a life tenant or a lessee), that person has the right to remove the crops that they have sown, and holds ownership of the crops once removed. In this context the crops are called ‘emblements’: Bridge et al. (2019), p. 65. But a trespasser has no right to emblements: Davis v. Eyton (1830), 7 Bing. 154, 131 E.R. 60 (C.P.). See however R. v. Tschetter, [1918] 1 W.W.R. 934 (Sask. C.A.), in which a trespasser was acquitted of theft when she planted a crop and harvested it. 108 Davis, ibid; Martin v. Porter (1839), 5 M. & W. 351, 151 E.R. 149 (Exch. of Pleas) (coal removed by trespasser belongs to landowner). I say it ‘changes the nature of the property right’ because in the common law, a landowner holds an estate in the land (such as a fee simple estate) but there are no estates in moveable things. 109 See Ziff (2014), pp. 112–113; for a detailed historical study, Getzler (2004), esp. chs. 3 and 6. 110 Conversely, this means that an upstream owner who is only making ordinary uses of the water can in principle consume the whole flow: this was suggested in McCartney v. Londonderry & Lough Swill Ry. Co., [1904] A.C. 301, 307.

114

L. Smith

take water from another’s land. An easement exists between two plots of land, a dominant tenement and a servient tenement, and its benefit and burden fall on the subsequent owners. It can be acquired by prescription as well as by express grant. The law on acquisition by prescription is somewhat complicated. As in the UK, there is acquisition by prescription under statute law, and also via the judge-made doctrine of ‘lost modern grant’.111 The rules are complex but can be summarized as follows. During the whole relevant time period, the use must have been open (not secret); peaceful (not contested); continuous and uninterrupted; and it must have been ‘as of right’, which means that it must not have been with the permission or indulgence of the holder of the servient tenement. ‘Lost modern grant’ requires proof of a period of 20 years of use that fits these requirements; it could be, for example, from 30 years ago until 10 years ago. Under statute, what is required is use that fits these requirements during the 20 years immediately before an action is brought. In either case, if there is proof of permission, even oral, from the holder of the servient tenement, then the period is interrupted. If however the easement has been enjoyed in this way for 40 years before action is brought, it will be established by statutory prescription unless there is a written permission of the holder of the servient tenement. If the villagers have an easement, then the previously discussed limits apply: the diversion must be for purposes connected with the use of the land, and if the uses are extraordinary the quality and quantity of the flow must be maintained. Under some provincial statutes, the common law rules have been replaced by a system that requires governmental permits for the diversion of running water, or for diverting more than a specified amount, which may be defined in relation to a purpose. These statutes exist in British Columbia, Manitoba, Saskatchewan, and Newfoundland and Labrador. They vest the ownership of water in the provincial Crown, and in general they also abolish the possibility of acquiring an easement to take water by prescription.112 In most, a permit is always required unless the water is

111

Establishment by enjoyment since time immemorial, which is recognized by English common law, is understood to be impossible in common law in Canada. Such a claim is defeated if the defendant can prove that the right was not exercised at some time after 1189. Since European colonists only arrived in the sixteenth century, such claims could not work except in relation to claims of aboriginal right or aboriginal title, and in Canada these claims are not categorized into common law conceptual categories such as easements. They are proved according to their own principles (see answer to Sect. 2.1.4). 112 BC: Water Sustainability Act, S.B.C. 2014, c. 15, s. 5; Alberta: Water Act, R.S.A. c. W-3, s. 3; Saskatchewan: Water Security Agency Act, S.S. 2005, c. W-8.1, ss. 38, 40; Manitoba: Water Rights Act, C.C.S.M. c. W80, s. 2; Newfoundland and Labrador: Water Resources Act, S.N.L. 2002, c. W-4.01, s. 9. The statutes of Alberta and Manitoba do not expressly abolish the acquisition by prescription of a right to take water. Note that two other provinces which do not have this comprehensive licensing legislation have also abolished the acquisition by prescription of a right to take water: New Brunswick: Clean Water Act, S.N.B. 1989, c. C-6.1, s. 9; Nova Scotia: Environment Act, S.N.S. 1994-95, c. 1, s. 108(1).

Property Meeting the Challenge of the Commons in Common Law Canada

115

diverted for domestic purposes.113 In Alberta, a permit is needed unless the water is for household purposes (up to 1250 cubic metres of water per year) or if it is for agricultural purposes and the amount is no more than 6250 cubic metres per year.114 Since the villagers seem to be using the water for farming, they would probably need a permit in these provinces. The same principles apply to the private corporation. Assuming it holds an interest in land adjacent to the river, in common law it can divert water for purposes connected with its land. Here the corporation has stopped the flow downriver. Even if the uses are connected to its land, such a diversion is unlawful in common law if it is for manufacturing uses, which are extraordinary uses. Under the statutes mentioned above, the corporation must have a permit and if it does not, it is acting unlawfully. Those among May, Mal and Mei who are riparian owners, or who hold an easement of water, or who have a licence to extract water, can get damages and probably a permanent injunction to stop unreasonable diversion. If the corporation is acting lawfully, for example because it is making ‘ordinary’ use such as watering animals or because it has a permit, and if the villagers are also acting lawfully, there is a problem of priority. Under the common law, if all uses are lawful, priority goes to the upstream riparian owner. Under the statutory regimes, in some provinces precedence among competing permits is determined by use, with priority going to domestic uses over agricultural or commercial uses.115 The BC system gives priority to the first permit granted.116

3.5

Water (Urban)

Jose, Jasmine, and Horatio are three friends that inhabit an apartment together in a city, Flumiapolis. Following a large increase in the price of water (200% in one year), the three friends fail to pay their water bills. After failing to pay the third bill, the water management cuts off their access to the water supply. Jose, Jasmine and Horatio sue. In general, water in cities is supplied by public utilities, which are legal persons that are controlled by the city or municipality. These utilities are allowed to cut off water supply for non-payment, after giving the required amount of notice. If Jose, Jasmine and Horatio are renting the apartment, the water account is probably in their landlord’s name. In this case, the landlord is the one liable to pay 113

BC: s. 6; Manitoba: s. 3; Saskatchewan: s. 57; Newfoundland and Labrador: s. 4. The BC Act also exempts water extracted to fight a fire. 114 ss. 1, 19, 21. Ontario does not have a comprehensive licensing regime, but a permit is required for any person to take more than 50,000 litres of water per day: Ontario Water Resources Act, R.S.O. 1990, c. O.40, s. 34 (with an exception for fighting fire, and higher limits for domestic purposes and watering animals). 115 Alberta: ss. 27–31; Manitoba, ss. 8–9; Newfoundland and Labrador: s. 15. 116 BC: s. 22. The Saskatchewan statute does not address the point.

116

L. Smith

the bill and cannot cut off water or any other vital service, for non-payment or for any other reason. It is possible, however, for a renter (tenant) to have the utility bill in his or her own name. In that case, the tenant is liable to pay the bill and the utility can cut off supply for non-payment, after giving the required amount of notice.

3.6

Nature

Hamid, Heba, and their two children used to spend many weekends walking and playing in one of the few green areas at the outskirts of the city where they live. The land belongs to a private owner who lives in a small house near the lake. Corporation C acquires the green area and converts it into a members-only country club. Hamid and Heba sue. A local environmental group also sues claiming access to what they consider a natural commons. Ha, He et al. have no recognized rights in this situation unless possibly a substantial amount of time has passed. They have not been in possession of the land as if they were owners, and so the rules regarding acquiring an estate in the land by passage of time do not apply. They might try to establish an easement; it is possible to have an easement over another’s land which allows one to use the land for recreation.117 Moreover, it is possible to acquire an easement by prescription, but this requires a substantial amount of time.118 However, an easement can only exist between two adjacent (or nearly adjacent) plots of land, and it is not clear that Ha, He et al. hold interests in land that is adjacent to the green area. If a landowner has let the public pass over his land, in common law this may create a public right of way, technically called a ‘highway’ (although there is no requirement that it be paved or marked). This requires (a) dedication by the owner and (b) acceptance by the public. Dedication and acceptance can both be implicit, and in practice they are usually both proved by long and open use. These principles are not found in a statute, and there is no fixed time for the period of use that allows the finding that they have occurred. In Canada, it has been accepted that these principles can give rise not only to a right to pass over private land (as is usual in a ‘highway’) but also a public right of use of private land for recreational purposes.119 However, if the dedication and acceptance are not clear and express, an

117

Re Ellenborough Park, [1956] 1 Ch. 131 (C.A.). Q 4a. 119 Gibbs v. Grand Bend (Village) (1996) 26 O.R. (3d) 644 (C.A.): by different lines of reasoning, it was held that a privately-owned beach had been dedicated to the public. Compare the English case of R v. Doncaster Metropolitan Borough Council, ex parte Braim (1986) 57 P. & C.R. 1 (Q.B.D.): a common belonging to a town was found to have been dedicated to public recreation; the court inferred the creation of a trust for the public. 118

Property Meeting the Challenge of the Commons in Common Law Canada

117

inference that they have occurred will usually require the passage of a substantial amount of time.120

3.7

Territory

Yellowriver is a small village sitting within a large and remote forest area. The government grants to Gold Masters Corporation permission to dig seeking for gold in order to develop a nearby mine. Aware of the high polluting risks of gold extraction to the nearby river, villagers erupt in protest and attempt to stop the project by legal means. Do they have any available action to protect the river— either as individuals or as an endangered community? The most promising means of protecting the environment would be through political action. Permits of this kind are only granted after public consultation and environmental assessment. Many permits are denied when public opposition is voiced at the approval stage. If such a permit has already been granted, then there are unlikely to be legal means to stop the project (although peaceful protests on public land are constitutionally protected, as explained in Sect. 3.1). If the operation of the mine by Gold Masters substantially and unreasonably affects the use and enjoyment of their homes by others nearby, this may constitute a private nuisance which is actionable in private law.121 Like any private law claim, a nuisance claim could be pursued by class action, although a class action will not be allowed if the effect on different members of the plaintiff class is different.122 An activity may be a nuisance even though it complies with applicable permits. It is not necessary to prove fault or negligence. The common law also recognizes public nuisance, which lies on the boundary between public and private law. It is public law inasmuch as ‘common nuisance’ constitutes a criminal offence.123 But public nuisance is also a civil wrong. It is committed by a defendant whose use of their land unreasonably interferes with the public’s interest in questions of health, safety, morality, comfort or convenience. As with private nuisance, a defendant may commit the civil wrong of public nuisance

120

In Gibbs the use was for almost a century; in Doncaster, even longer. Antrim Truck Centre Ltd. v. Ontario (Transportation), [2013] 1 SCR 594, 2013 SCC 13. 122 Baker v. Rendle, 2017 BCCA 72. 123 Criminal Code, R.S.C. 1985, c. C-46, s. 180(2): 121

(2) For the purposes of this section, every one commits a common nuisance who does an unlawful act or fails to discharge a legal duty and thereby (a) endangers the lives, safety, health, property or comfort of the public; or (b) obstructs the public in the exercise or enjoyment of any right that is common to all the subjects of Her Majesty in Canada.

118

L. Smith

even if it has complied with all relevant regulations.124 Public nuisance is unusual because it is actionable both by the Crown (acting through the Attorney General) and by private citizens. In fact, there are two distinct ways in which private citizens can act. The Supreme Court of Canada has held that it falls primarily to the Attorney General to bring action to abate a public nuisance, including in the context of the protection of the environment.125 If the Attorney General does not exercise such a claim, it is possible in common law for a private citizen to bring suit in the name of the Attorney General. This procedure, called a ‘relator action’, is little used today. The citizen must bear the costs of the suit but, because she is asserting a right of the Attorney General, that official can discontinue the action. The other alternative is that private citizens may be able to sue in public nuisance in their own right, rather than by enforcing the rights of the Attorney General. A private citizen can bring action if he or she can show ‘peculiar’ or ‘special’ damage.126 What this means is somewhat unclear, but the plaintiff must have suffered either a different type of damage from the public at large, or a higher level of damage not suffered by most others.127 Unlike in private nuisance, the ability to sue in public nuisance is not confined to landowners or those whose use and enjoyment of their own property has been affected by the nuisance. Monitoring the state of the river may allow the villagers to be aware of any unlawful act on the part of Gold Masters, such as a violation of the terms of its permit or of general environmental law. In Canada, it is possible for a private citizen to bring a private criminal prosecution where another citizen is alleged to have committed an offence. In such cases, the government prosecutor must be given notice, and can take over the prosecution, either to continue it or to discontinue it. 128 In 2016, following a spill of mining waste into freshwater rivers, MiningWatch Canada filed a private prosecution against the mining company and against the province of British Columbia, alleging violations of the federal Fisheries Act.129 However, the federal prosecutor discontinued the prosecution.130

124

Ryan v. Victoria (City), [1999] 1 SCR 201. British Columbia v. Canadian Forest Products Ltd., [2004] 2 SCR 74, 2004 SCC 38. 126 Ryan v. Victoria (City), [1999] 1 SCR 201. 127 George v. Newfoundland and Labrador, 2016 NLCA 24. 128 See R. v. McHale, 2010 ONCA 361, in which the prosecutor’s decision to withdraw the charge was ruled to be premature. 129 MiningWatch Canada (2016). 130 Lapointe v. Mount Polley Mining Corporation, 2017 BCPC 140. 125

Property Meeting the Challenge of the Commons in Common Law Canada

3.8

119

Culture

State funding to a nonprofit local theater is cut in response to austerity measures; as a result the theater will be sold to a private company that wants to operate the theater at a profit. Evgenia, Misha, and Katia are actors, and along with other concerned citizens that protest the sale and other workers, they occupy the theater, and continue the theater’s programming for the public through a combination of volunteer work and donations. The municipality brings suit to evict against Evgenia, Misha, Katia, and the other actors. Variation: Assume that the actors obtain permission to stay and to use the theater provided that they run it as a commons in the interest of culture and future generations. What legal form should they use to this purpose? I read the question as implying that the theatre belongs to the municipality, since it is seeking eviction in order to sell. In this case, the principles discussed under Sects. 3.1–3.3 must be slightly modified, because the municipality, as an emanation of the State, is bound by the Canadian Charter of Rights and Freedoms. We also assume that the municipality’s decisions, to cut funding and to sell the theatre, have been made according to proper procedures, so that there is no legal ground for challenge on the basis of public law. In Committee for the Commonwealth of Canada v Canada,131 the Supreme Court of Canada held that the federal government could not rely on federal regulations to stop members of the public from distributing leaflets in an airport.132 The Crown’s ‘right to exclude’ was subject to the Charter-protected freedom of expression (s. 2). The Court noted that the public’s right to express itself on Crown property was not unlimited.133 In Vancouver v Zhang,134 protestors set up posters, a billboard and a hut on a city street as part of a campaign to raise awareness of the prosecution of a certain religion in a foreign country. The city invoked its by-laws to demand the removal of these things. The BC Court of Appeal held that the protestors were exercising their Charter-protected freedom of expression. Under the Charter, when a Charter right or freedom has been infringed, the government or state agency can invoke s. 1, which provides: 1. The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.

131

[1991] 1 S.C.R. 139. The airport was in Montreal and so the applicable property law was Quebec law, but the Charter principles apply nationally. 133 For example, L’Heureux-Dubé J. gave the examples that the public could not demonstrate in the air traffic control tower, in prison cells or in judge’s offices. 134 2010 BCCA 450. 132

120

L. Smith

The BCCA held that the by-law was not saved by s. 1 of the Charter. The limits on freedom of expression could have been tailored more carefully to be less intrusive on that freedom. The relevant by-law was found to be unconstitutional. Two other well-known cases concerned parks. In the first one, about 70 homeless persons set up tents and shelters in a city park, when the number of homeless persons exceeded the places available in public shelters.135 The city sought to enforce a by-law that forbade the setting up of any shelter in a public park. The homeless persons argued that this infringed their Charter right to life, liberty and the security of the person (s. 7). The British Columbia Court of Appeal upheld that argument, and found the by-law to be unconstitutional. More recently, members of the Occupy movement occupied a city park in Toronto, setting up a camp that featured more than 300 tents with cooking facilities and portable toilets.136 The city sought to evict them, on the ground that it had the right to close the park at night according to its by-laws. The protestors argued that the city by-laws were invalid; they invoked their Charter-protected freedoms of conscience and religion; freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication; freedom of peaceful assembly; and freedom of association (all in s. 2). The judge accepted that all of these freedoms were infringed. Applying the case law under s. 1, however, the judge decided that the infringements were justified. In particular, in this context, he took account of the interests of other citizens who were not necessarily content to find that the local park had been occupied. He also noted that the closing of the park each night did not impose any absolute ban on the plaintiffs’ freedoms. It affected the times at which they could exercise them, and the ways they could exercise them, but he concluded it was a reasonable limit, prescribed by law, that had been demonstrably justified. Applying these principles to our case, we can say the following. It would be very difficult to challenge the decision to cut funding to the theatre company, on the basis that this infringes freedom of expression (or other Charter freedoms). Courts are reluctant to dictate to public bodies how they should spend public funds. As mentioned earlier (Sect. 3.2), this makes it unclear even whether the State is obliged to provide health care without charge, and arguing for State support of culture would be even more difficult. E, M, K et al. might have more success framing their freedom of expression argument in terms of access to public space, as in Committee for the Commonwealth. But it seems clear that a municipality that owns a theatre can control access to it. It can demand that spectators have tickets, and it can insist that theatre companies book the space and use it accordingly. If Batty is correct, E, M, K et al. cannot simply take over the theatre. The other possibility would be for E, M, K et al. to challenge the decision of the municipality to sell the theatre, arguing that this decision infringes their Charter

135 136

Victoria v Adams 2009 BCCA 563. Batty v Toronto 2011 ONSC 6862.

Property Meeting the Challenge of the Commons in Common Law Canada

121

freedoms. A key question would probably be what other spaces are available for the free expression of ideas? If the result of the sale of the theatre would be that there would be no other comparable venue, it is (just) possible that a court would view this as infringing a Charter right. Of course, theatrical performances could be mounted in parks and other spaces. Again, even if a Charter violation is found, the municipality could argue s. 1, although in this situation the burden is on the State agency to show that the established infringement is a reasonable limit that is prescribed by law and that has been demonstrably justified in a free and democratic society. We were asked to consider whether it would make a difference if the theatre were historic and culturally relevant. While this might assist the actors in their political fight, it is unlikely to be legally relevant.137 If the building is protected as architectural patrimony, then the municipality must follow the relevant norms, but while those rules are likely to control changes to the building’s appearance and destination they are unlikely to prevent its sale.

3.8.1

Variation

Determining an appropriate legal form would require more information about the scope of the enterprise and about the sources of funding that the actors foresee for their activities. Unincorporated forms (associations, partnerships) may be easier to create and less regulated, but may attract a higher risk of personal liability for contractual and extracontractual liabilities that may arise in the operation of the theatre. Moreover, if the actors anticipate obtaining funding through granting agencies, these unincorporated forms might not be eligible for all granting programs. Incorporated forms include not only business corporations but also co-operatives and corporations without share capital. In Canada, corporate forms can be created either under provincial law or federal law. In co-operatives and corporations without share capital, voting (e.g. for directors) will be conducted on the basis that each member has one vote, rather than on the business corporation model that each share carries one vote. These forms may therefore be more suitable than business corporations for not-for-profit activities. Two provinces (British Columbia (2013) and Nova Scotia (2016)) have recently created hybrid corporate entities that aim to combine elements of the business corporation with social aspirations of not-forprofit entities. They do issue shares and engage in economic enterprise, but they may only distribute some of any profits that they make to shareholders. Remaining profits must be applied to the entity’s declared community purposes. Similar restrictions apply to the distribution of assets if the corporation is wound up. 137

Two Montreal theatres, both belonging to the City, can serve as examples. The Empress Theatre is a historic theatre built in 1927. It has been closed since 1992 and the City’s response to all non-profit proposals is that they must be self-financing. The Snowdon Theatre is an art deco structure from 1937. It was converted into a shopping centre in 1990 and closed in 2013. In 2017 it was sold to a private enterprise.

122

L. Smith

Whatever form it takes, so long as it is not a form that distributes profits to investors, the actors may be able to register their enterprise as a charitable entity. This will allow the enterprise to give charitable receipts to donors, which means that each donor gets an income tax credit for part of the gift. It also means that the enterprise itself will be exempted from paying sales and other taxes. To have this status, the enterprise must be engaged in one of the activities that were traditionally considered charitable by the common law. In Canada, the performing of artistic works is considered a charitable activity.138 A charitable enterprise cannot engage in political activities except in a minor or ancillary way; if it does, charitable status may be revoked.

3.9

Climate

Diletta, Flavio, and Antonella became aware of the reality of climate change when their schoolteacher decided to work on reading materials that were circulated at the time of the 2015 Paris Agreement on Climate Change. Although just turned 18 years old, all the three of them took the information quite seriously and started to worry about the gloomy expectations they learnt about: dangerous rise in the global temperature, water scarcity, droughts, forest fires, possible displacement of populations, etc. After the scandal involving the Popcar Corporation, concerning the manipulation of computer system for the control of emission in cars, Diletta, Flavio, and Antonella are struck by the quite feeble sanctions inflicted to the car manufacturer—not only in their jurisdiction. For this reason Diletta, Flavio, and Antonella decide to take action in the interest of future generations. They sue their government and the global corporation Popcar. The question does not state the legal basis for the claims against the government and Popcar. It is not obvious what claim could be made against the government. It is possible to sue the Crown using private law claims, but outside of contract or other express undertakings, this requires the infringement of a protected interest, usually personal injury or property damage. Disagreement with the Crown’s decisions as to the enforcement of laws does not create a claim. The common law has a tort of ‘misfeasance in public office’. It can be committed by a public officer who acts with deliberate malice, or by one who knew that his exercise of public powers was illegal and was likely to cause harm.139 Recklessness can also suffice, which means that the tort’s scope is wider than truly deliberate conduct. But unless D, F and A can prove this kind of deliberate abuse of public power, there is not likely to be any legal claim against the government.

138

Canada Revenue Agency (2012). Three Rivers District Council v. Bank of England, [2000] 2 A.C. 1 (H.L.); Odhavji Estate v. Woodhouse, [2003] 3 S.C.R. 263.

139

Property Meeting the Challenge of the Commons in Common Law Canada

123

As for Popcar, a class action would be easier in relation to those who are or were owners of the relevant cars, and who might therefore allege breaches of contract, deceit, or other legal wrongs leading to pecuniary loss. Many such class actions have been launched against Volkswagen in Canada. But for plaintiffs who did not own the relevant car, it is harder to know what private wrong could be alleged. If one or more of D, F and A could prove that Popcar’s conduct had caused them harm or loss, there might be a private law claim, say in negligence. If the case involves Popcar’s cars producing more emissions that have been disclosed by Popcar, this seems unlikely. Private nuisance (discussed under Sect. 3.6) is not relevant, since it protects the use and enjoyment of land. Public nuisance (discussed under Sect. 3.6) requires proof of an unreasonable interference with the public’s interest in questions of health, safety, morality, comfort or convenience. As noted in the earlier discussion, enforcement lies primarily with the Attorney General (though the Attorney General’s claim can be asserted via a relator action). Private citizens can sue in public nuisance only if they can show special damage. If Popcar committed an offence (probably under environmental protection law), then this is prima facie a public wrong and enforcement lies with the Crown. However, as discussed in the answer under Sect. 3.6, Canadian law does allow private citizens to bring private prosecutions for crimes and offences. If, however, Popcar has already been charged with the relevant offence, and was either convicted or pleaded guilty leading to the sanctions mentioned in the question, it is not possible to bring a second prosecution. This was not allowed in common law and the Canadian Charter of Rights and Freedoms has now turned this into a constitutional guarantee.140 On the other hand, if D, F and A are able to identify some offence which they think Popcar has committed but for which it has not been charged, they could in principle bring a private prosecution. As mentioned above (Sect. 3.6), however, the Attorney General has the power to either take over or to discontinue the prosecution.

References Borrows J (2015) The durability of terra nullius: Tsilhqot’in Nation v. British Columbia. Univ BC Law Rev 48:701–742 Bridge S, Cooke E, Dixon M (2019) Megarry & Wade: the law of real property, 9th edn. Sweet & Maxwell, London, pp 1170–1176 Canada Revenue Agency (2012) Guidance CG-018: arts activities and charitable registration. In: Policies and guidance. Government of Canada. https://www.canada.ca/en/revenue-agency/ services/charities-giving/charities/policies-guidance/guidance-018-arts-activities-charitable-reg istration.html. Accessed 22 June 2022

Section 11: ‘Any person charged with an offence has the right . . . (h) if finally acquitted of the offence, not to be tried for it again and, if finally found guilty and punished for the offence, not to be tried or punished for it again; . . .’ 140

124

L. Smith

Canadian Centre for Refugee & Immigrant HealthCare (2020) Our impact. In: About us. https:// www.healthequity.ca/about-us/#our-team. Accessed 22 June 2022 CBC News (2017) New report says privatizing Canada’s ports could generate significant revenue. CBC/Radio-Canada. https://www.cbc.ca/news/canada/british-columbia/new-report-saysprivatizing-canada-s-ports-could-generate-significant-revenue-1.4168873. Accessed 22 June 2022 Chong J (2017) Airport governance reform in Canada and abroad. In: Research publications. Library of Parliament. https://lop.parl.ca/sites/PublicWebsite/default/en_CA/ ResearchPublications/201717E. Accessed 22 June 2022 Cousins EF, Honey R (2012) Gadsden on commons and greens, 2nd edn. Sweet & Maxwell, London Getzler J (2004) A history of water rights at common law. Oxford University Press, Oxford Girard P, Phillips J (2010) A certain ‘malaise’: Harrison v. Carswell, shopping centre picketing, and the limits to the post-war settlement. In: Fudge J, Tucker E (eds) Work on trial: Canadian labour law struggles. Irwin Law for the Osgoode Society, Toronto, pp 249–280 Government of Canada (2019) Inventory of federal organizations and interests. In: Reporting of government spending. https://open.canada.ca/data/en/dataset/c05e8a2b-4e8b-4da7-b6f3-33f4 848d3c09. Accessed 22 June 2022 Hamill SE (2012) Private rights to public property: the evolution of common property in Canada. McGill Law J 58(2):365–403 Hamill SE (2017) Of malls and campuses: the regulation of university campuses and section 2(b) of the Charter. Dalhousie Law J 40(1):157–187 Litman MM (1991) Freedom of speech and private property: the case of the mall owner. In: Schneiderman D (ed) Freedom of expression and the Charter. Thomson, Toronto, pp 361–410 Litman G, Hulse M (2016) Enhancing public access to privately owned wild lands. In: Publications. University of Victoria Environmental Law Centre Society. https://bit.ly/2DtrDPk. Accessed 22 June 2022 Loader L (1992) Trespass to property: shopping centres. J Law Soc Policy 8:254–281 Macpherson CB (1978) The meaning of property. In: Macpherson CB (ed) Property, mainstream and critical positions. University of Toronto Press, Toronto, pp 1–14 Médecins du Monde Canada (2020) Médecins du monde Canada. https://www.medecinsdumonde. ca/. Accessed 22 June 2022 MiningWatch Canada (2016) Background: MiningWatch Canada charges against B.C. government and Mount Polley mine. In: Blog. MiningWatch Canada. https://miningwatch.ca/blog/201 6/10/18/background-miningwatch-canada-charges-against-bc-government-and-mount-polleymine. Accessed 22 June 2022 Nav Canada (2015) The test of time: how Nav Canada really works. In: Publications. Nav Canada. https://www.navcanada.ca/EN/media/Publications/Test%20of%20Time-EN.pdf. Accessed 12 July 2020 Neimanis VP (2011/2013) Crown land. In: The Canadian encyclopedia. Historica Canada. https:// www.thecanadianencyclopedia.ca/en/article/crown-land. Accessed 22 June 2022 Parkdale Community Legal Services (1997) Submissions to the task force on the law concerning trespass to publicly used property as it affects youths and minorities. Osgoode Hall Law J 35: 819–830 Robertson M (2016) Common property redux. Univ BC Law Rev 49:563–617 Ziff B (2014) Principles of property law, 6th edn. Carswell, Toronto

Property Meeting the Challenge of the Commons in Croatia Tatjana Josipović and Hano Ernst

Abstract The Croatia legal system distinguishes between common goods and public goods. The former are resources that nobody can own, administered by the Republic unless otherwise determined by law, and can be enjoyed by everybody. Examples of this type of goods are the waters in rivers and lakes, maritime domain, and seashore. Public goods, on the other hand, are owned by the State or other public bodies. These include not only financial assets and so-called public goods in public use—goods used by the public administration in fulfilment of their function—but also public goods in common use, such as public roads. There is currently no scholarly debate in Croatia regarding the commons. However, there is a related debate on the legal difficulties transitioning from the understanding of property typical of the socialist era to a strong recognition of private ownership. This concerns, in particular, the privatization of so-called social ownership, a type of collectivistic ownership of certain types of assets such as land and apartment buildings.

T. Josipović · H. Ernst (✉) University of Zagreb, Faculty of Law, Zagreb, Croatia e-mail: [email protected]; [email protected] © The Author(s), under exclusive license to Springer Nature Switzerland AG 2023 U. Mattei et al. (eds.), Property Meeting the Challenge of the Commons, Ius Comparatum - Global Studies in Comparative Law 59, https://doi.org/10.1007/978-3-031-25218-1_4

125

126

T. Josipović and H. Ernst

1 Questionnaire: Part I 1.1

What Legal Categories in Your Legal System May More Closely Correspond to the Notion of the Commons as Deployed in the Introduction? Is There Today or Was There in the Past a Concept of the Commons in Your Legal System? In the Affirmative, Is It Statutory, Jurisprudential, Doctrinal or Customary?

In the Croatian legal order, apart from movables and immovables which may be objects of ownership or of other property rights, there are things which cannot belong to anyone because of their natural characteristics, or by operation of law (common goods, public domain, opća dobra).1,2 Things belonging to common goods are those that are not capable of being objects of ownership or of other property rights.3,4 Common goods include things which, as a result of their properties, may not be individually owned by a natural or legal person, although they may serve to satisfy public needs, i.e. to be used by all (e.g. the air, water in rivers, lakes and the sea, the sea shore). Common goods may be used by everyone. Unless otherwise provided by law, the Republic of Croatia cares for them, administers them, and is responsible for them.5 Economic exploitation of immovables within the regime of common goods is carried out by concessions provided for in separate

1

The main source of the property law in Croatia is the Ownership and Other Property Rights Act (OOPRA) (NN 91/96, 68/98, 137/99, 22/00, 73/00, 114/01, 79/06, 141/06, 146/08. 38/09, 153/09, 143/12, 152/14). Croatian property law is one of the areas of private law which, after the independence of Croatia and transition to a market economy, went through the most radical changes. The new Croatian property law is based both on an individualistic concept of the right to own and on the traditional principles of the regulation of property rights. See generally Josipović (2014). 2 OOPRA art. 3(2). 3 Forces of nature are regarded as things if they are subject to human control (OOPRA art. 2(5)). 4 See generally Gavella (2007), pp. 136–140. 5 OOPRA art. 3(3).

Property Meeting the Challenge of the Commons in Croatia

127

laws.6,7 The legal status of individual common goods is also provided for in separate laws. The Waters Act8 expressly stipulates that waters are common goods enjoying special protection of the Republic of Croatia. Waters (because of their natural characteristics) may not be the objects of ownership rights.9 The Waters Act expressly provides that, under the conditions and within the limits specified in the Act, everyone is allowed to use waters.10 Any water user is obliged to use it in a way and within a scope so as to avoid wastefulness or harmful changes of its quality, without depriving other persons from their statutory right to use water.11 When it comes to the general use of waters, everyone is entitled to use waters to satisfy their personal needs and in a way and in quantities that do not exclude others from equal use.12 Any use of waters exceeding the scope of the common or free use of waters must be subject to a concession agreement or a permit to legally use waters.13 Commercial exploitation of waters is granted by concessions.14 According to the Maritime Domain and Ports Act (MDPA),15 the maritime domain is a common good. Neither ownership nor any other property right may be acquired on the maritime domain on any grounds.16 The maritime domain may not be subject to any legal transaction because no one may acquire ownership over

6

The method of commercial exploitation of immovables considered as common goods and immovables in public ownership (public goods) is provided by the Concessions Act (CA) (NN 69/2017). The CA provides for the process of granting concessions, concession contract, terminating concessions, and legal protection in granting and terminating concessions. A concession contract is a specific administrative contract. A concession contract is entered into, upon a public bidding procedure and a decision on the selection of the most advantageous bidder, by a concession grantor and a concessionaire (a natural or a legal person). A concession grantor may be the Croatian Parliament, the Government of the Republic of Croatia, central state administration bodies on behalf of the Republic of Croatia, the competent bodies of local and regional self-government and legal persons authorised to award concessions under special regulations (CA art. 7(1)). A concession on an immovable may be awarded for economic use of common or other goods, such as the exploitation of mineral raw materials, the exploitation of the public water domain, maritime domain, agricultural land, protected natural areas, public roads, ports and the like (CA art.8(1)). 7 By virtue of a concession on immovables, the concessionaire may own a building or another facility of public domain, but only for the duration of the concession (OOPRA art. 3(4)). 8 Waters Act (WA) (NN 66/2019). 9 See WA art. 8. 10 WA art. 87(1). 11 WA art. 87(3). 12 Common use of waters encompasses in particular the use of surface and underground waters for drinking, cooking, heating, cleaning and for sanitary and other household needs, and the use of surface waters for bathing, sports and recreation and other similar purposes (WA art. 88(2)). 13 WA art. 91. 14 WA arts. 176–193. See also Jug (2011), p. 277. 15 Maritime Domain and Ports Act (MDPA) (NN 158/2003, 100/2004, 141/2006, 38/2009, 123/2011, 56/2016, 98/2019). 16 MDPA arts. 3(1) and 5(2).

128

T. Josipović and H. Ernst

it. The maritime domain enjoys particular protection of the Republic of Croatia.17 It consists of internal sea waters and territorial sea, their seabed and subsoil, and a part of land that is by its nature intended for general use or has been designated as such, as well as anything that is permanently attached to such a part of land on its surface or underneath it. Buildings and other facilities on the maritime domain that are permanently associated with it are considered to be constituent parts of the maritime domain. The maritime domain is managed, and the care and responsibility for it is taken, by the Republic of Croatia directly or through units of regional selfgovernment or units of local self-government.18 Commercial exploitation of the maritime domain is granted through concession agreements and approvals.19 They may be granted to natural and legal persons registered for business activities. Concession holders may be both national and foreign natural or legal persons. Concessions may be granted for a period ranging from 5 to 99 years.20,21

1.1.1

Public Goods in Common Use

Things, movable and immovable, owned by public bodies or the Croatian State, bodies of local government or regional self-government or other legal persons governed by public law are called public goods ( javna dobra).22 They can be objects of ownership or other property rights. The Republic of Croatia and other public law entities, as holders of the right of ownership of public goods, are treated equally with private owners unless otherwise provided by law.23 Disposal, administration and use of certain publicly owned immovables are regulated by separate acts (e.g. acts on agricultural land, forests, waters, public roads and the like). With respect to their purpose, public goods are divided into public goods in common use, public goods in public use and financial assets. Public goods in common use ( javna dobra u općoj uporabi) are things owned by the Republic of Croatia and other bodies governed by public law that are intended to be used by everyone.24 Everyone has the right to use them in a way to achieve such purpose and in the scope determined thereby. Public goods in public use ( javna dobra u javnoj uporabi) are things intended for the direct exercise of the rights and duties of legal persons governed by public law, i.e. by the Republic of Croatia and its bodies and institutions.25 Things considered as

17

MDPA art. 3(1). MDPA arts. 3(2), 5(1), and 10(1). 19 MDPA arts. 16–37, and 38–39. 20 MDPA art. 20(1). 21 See Jug (2011), p. 253. 22 See Gavella (2007), pp. 140–142. 23 OOPRA art. 35(1). 24 OOPRA art. 35(4). 25 OOPRA art. 35(5). 18

Property Meeting the Challenge of the Commons in Croatia

129

public goods in public use are used by the bodies and institutions responsible for their administration in line with their purpose. Things that are publicly owned and that are not intended for either common or public use are deemed to be financial assets ( financijska imovina). They are also owned by the Republic of Croatia or other public law entities and are used in accordance with the purpose determined by the body responsible for such determination.26 The right of ownership of these things is exercised by the body responsible for the determination of their purpose, unless it has delegated this function to another body, institution or person.27 Immovables owned by local self-government units may be alienated or otherwise disposed of only on the basis of a public tendering procedure and subject to the compensation established on the basis of the market value of property, unless provided otherwise by law.28 When discussing the regime of public goods in common use, we distinguish things (most commonly immovables) which under article 52 of the Constitution of the Republic of Croatia29 enjoy special protection of the State, and special acts provide for the legal regime governing such immovables. Because of their purpose and importance for the protection of the environment, nature, national security, people’s health and the like, many pieces of property are proclaimed by separate act to be goods of special significance for the Republic of Croatia. The domains of interest to the Republic of Croatia are the sea, seashore, islands, waters, airspace, mineral resources and other natural assets, as well as land, forests, flora and fauna, other components of the natural environment, property and items of particular cultural, historical, economic or ecological significance. The manner in which any assets of interest to the Republic of Croatia may be used and exploited by holders of rights thereto and by their owners are regulated by law. Some obligations regarding their maintenance are also imposed on the owners, or they are prohibited from behaving in certain ways, so as not to distort the particular characteristics of these things for which they are proclaimed to be of interest to the Republic of Croatia. Owners and persons authorized to exercise other rights related to the aforementioned things may exercise these rights for their use and utilization in accordance with the procedure laid down by law.30 26

OOPRA art. 35(6). OOPRA art. 35(7). 28 OOPRA art. 391(1). 29 The Constitution of the Republic of Croatia, (NN 6/90, 135/97, 8/9, 113/00, 124/00, 28/01, 41/01, 55/01, 76/10). art. 52 of the Constitution states: 27

The sea, seashore, islands, waters, air space, mineral resources, and other natural assets, as well as land, forests, flora and fauna, other components of the natural environment, real estate and items of particular cultural, historical, economic or ecological significance which are specified by law to be of interest to the Republic of Croatia shall enjoy its special protection. The manner in which any assets of interest to the Republic of Croatia may be used and exploited by holders of rights thereto and by their owners, as well as compensation for any restrictions as may be imposed thereon, shall be regulated by law. 30

See generally Gavella (2007), p. 5.

130

T. Josipović and H. Ernst

In the legal regime, there are public goods in common use, such as public waters, public roads, and railway infrastructure. When dealing with public goods in common use, special regulations provide for various specific rules. Usually, when public goods in common use are involved, prohibition against alienation from State ownership is provided. Public roads are public goods in common use owned by the Republic of Croatia.31 Public roads are classified into state roads and county roads depending on their social, traffic or economic importance. Public roads may not be alienated from the ownership of the Republic of Croatia nor may rights be acquired on them, except in cases provided for in the RA.32 The right of easement and the right to build for the purpose of building infrastructural objects (communal, water supply, energy supply, telecommunications and other facilities) may be established on a public road. Easements or the right to build are established for the benefit of the investors of such objects and their transfer is permitted only to persons who are authorized by other law to manage such objects.33 The only way for the commercial exploitation of public roads is by means of concessions. Through a concession, the right of commercial exploitation, construction and maintenance of a state road is acquired, as well as the right of management of motorways and objects and facilities on areas along such roads. Concessions may be granted to domestic or foreign natural or legal persons fulfilling the conditions specified by the holder of a concession in a public bidding procedure.34,35 The water good is a set of land plots which include water-bearing and abandoned channels of inland surface waters, flood-plain areas and islands formed in a waterbearing channel.36 A state-owned water asset is called a public water estate in general use. The public water good is inalienable from state ownership. No one may acquire the right of ownership or any other property right over the public water good by adverse possession or in any other way, except for the right of easement and the right to build.37 The use of the public water good is accomplished by the right of lease, the right of easement or the right to build in accordance with the conditions stipulated by law. Commercial exploitation of waters is granted by concessions.38

31

Roads Act (NN 84/11, 18/13, 22/13, 54/13, 148/13, 92/14, 110/19) art. 3(1). Roads Act art. 3(2). Management, construction and maintenance of public roads are entrusted to companies founded by the Republic of Croatia, or to institutions founded by counties. Public roads are managed by a limited company called Hrvatske ceste d.o.o. (art. 82). Motorways are managed by a limited company called Hrvatske autoceste d.o.o. (art. 81). County roads are managed by the county road administration (art. 107). 33 Roads Act arts. 3(3) and 25(4)-(5). 34 Roads Act arts. 75–80. 35 See generally Josipović (2014), p. 413. 36 WA art. 9. 37 WA art. 12. 38 WA art. 18. See generally Jug (2011), p. 277. 32

Property Meeting the Challenge of the Commons in Croatia

131

Railway infrastructure is owned by the Republic of Croatia, and the immovables constituting railway infrastructure are a public asset in common use.39 Commercial exploitation of railway infrastructure by domestic and foreign legal persons is based on a contractual relationship (an infrastructure management contract).40

1.1.2

Commons and Social Ownership

A specific concept of collectively organized ownership was materialized after 1945 when Croatian law joined the legal circle of socialist countries. The socialist legal order was aimed at the development of a socialist society based on workers’ selfmanagement. The main features of the legal system at the time were collective social ownership, a planned economy and “associated labor” in socially owned enterprises. When Croatia was part of the socialist legal circle, ownership was regulated on the basis of a collectivistic concept. There were two diverse general property law models: social ownership (društveno vlasništvo) and private ownership (privatno vlasništvo). Social ownership was designed as a collectivistic concept. This was based on wholly different principles from ownership relations in continental Europe. Many things, and particularly real property, were socially owned (e.g. building plots, agricultural land, forests, buildings, apartments, and so on). There was no “ownership” of socially owned things. Various legal entities had only specific rights over such things (the right to use, dispose of and manage them), which appear to have been absolute and protected by law. In practice, those rights were frequently referred to as the “new property rights” with third-party effect over socially owned assets.41 The most common definition of social ownership was that socially owned things belonged to everyone and to no one concurrently. After the declaration of independence of Croatia, the Constitution of the Republic of Croatia of 1990 proclaimed the inviolability of ownership as one of the highest values of the constitutional order of the Republic of Croatia and guaranteed the right of ownership as one of the fundamental (human) rights.42 The current Croatian Constitution recognizes only one type of ownership, based on an individualistic concept and on the doctrine of the social function of ownership. After the transition to a market economy, a process of privatization and denationalization was gradually carried out, and the system of social ownership was dismantled. The establishment of a property rights system based on only one type of ownership (private ownership) demanded special transition legislation. The transformation of social ownership over certain things had been carried out by virtue of many acts even before the OOPRA entered into force. It was conducted such that social entities, as holders of rights over socially owned things, changed their status and transformed

39

Railway Act (NN 32/19) art. 71. Railway Act art. 46. See generally Radionov (2011), p. 453. 41 See generally Gavella (2007), pp. 347, 814–816. 42 Constitution art. 3 and 48(1). 40

132

T. Josipović and H. Ernst

themselves into (private) corporations.43 The transformation from social to private enterprises affected the rights that social entities had held over socially owned things, such that these rights were transformed into ownership rights of the same entities who, prior to the process of privatization, had held the right to use the asset. In cases of select types of real property (agricultural land, forest land), social ownership terminated based on various separate acts automatically transferring ownership to the Republic. The process of transformation was also carried out by restitution (denationalization), whereby the assets that had been subject to nationalization and confiscation were returned to their former owners, or their heirs.44 The transition to private ownership was finalized with the OOPRA. The legal effects of the transition were established ex lege, i.e. by the entry into force of the transitional and final provisions of the OOPRA on January 1, 1997. Rights over socially owned things that had not been transformed by other law before OOPRA were transformed into ownership. The rights over socially owned things were transformed into ownership whose holder became known. The owners of things that used to be socially owned (ex lege) now had rights over these things, as did their heirs and other legal successors.45 In practice, however, there are still significant problems with proving the rights the various legal and natural persons had over socially owned things, due to poor records.

1.2

Is There any Kind of Public Property in Your Legal System That Is Absolutely Not Alienable?

Immovables that are common goods (maritime domain) cannot be alienated because there can be no ownership of them or any other property right. When immovables with public goods in common use status are involved, such as public waters, railroad infrastructure, and public roads, it is expressly provided by other law that they may not be alienated from State ownership. Even in cases of public goods not in common use (forests and forest land), alienation from State ownership is sometimes prohibited. State-owned forests and forest land must not be alienated from the ownership of the State except in cases expressly stipulated in the Forests Act.46 A state-owned forest may be transferred to another’s ownership, encumbered with an easement or the right to build in order to be used for a different purpose only if this is in the interest of the Republic of Croatia. State-owned forests may be encumbered by easements and the right to build for the

43

See Act on the Transformation of Socially Owned Enterprises (NN 19/91, 83/92, 94/93, 2/94, 9/95). 44 See Act on the Compensation for the Assets Seized During Yugoslav Communist Rule (NN 92/ 96, 39/99, 42/99, 92/99, 43/00, 131/00, 27/01, 34/01, 65/01, 118/01, 80/02, 81/02, 98/19). 45 OOPRA arts 354–365. 46 Forests Act (NN 68/2018, 115/2018, 98/2019) art. 56.

Property Meeting the Challenge of the Commons in Croatia

133

purpose of building infrastructural objects, and they may be leased for the purpose of carrying out various forest management plans.47

1.3

Is the Commons Today a Topic of Academic Debate in Your Legal System—And in the Affirmative in What Context?

Today, there is no particular academic debate on the commons in Croatia. There is, however, a debate on the problems connected with the privatization and transformation of State ownership, particularly involving the establishment of legal certainty in the course of these processes.

1.4

Are There Remedies in Your Legal System for Someone to Challenge in Court a Government That Decided Privatization of the Commons?

There are no particular remedies challenging governmental decisions privatizing the commons. The remedies challenging such government decisions are subject to the rules on legal remedies available in administrative proceedings under the General Administrative Procedure Act48 and the Civil Procedure Act.49 In the past several years, when privatization or spatial planning interventions were announced, there has been a growing trend of launching initiatives to organize referenda and other forms of personal participation of citizens in government in accordance with the Referendum Act.50 A referendum is a form of voters’ direct decision making on important issues established in the Constitution, or on issues in the self-management scope of activities of local and regional self-government established by law or statute. Other forms of direct decision making by voters are advisory referenda, citizens’ meetings and citizens’ petitions.51 Numerous referendum initiatives have since been launched on various referendum questions, such as

47

Forests Act arts 51, 53, 58–59. See generally Belaj (2011), p. 157. General Administrative Procedure Act (NN 47/09). 49 Civil Procedure Act (CivPA) (NN Sl. list SFRJ 4/1977, 36/1977, 36/1980, 6/1980, 69/1982, 43/1982, 58/1984, 74/1987, 57/1989, 20/1990, 27/1990, 35/1991, NN 53/1991, 91/1992, 112/1999, 129/2000, 88/2001, 117/2003, 88/2005, 2/2007, 96/2008, 84/2008, 123/2008, 57/2011, 25/2013, 89/2014, 70/2019). 50 Referendum and Other Types of Personal Participation in Government, and Local, and Regional Self-Government (Referendum Act) (NN 33/1996, 92/2001, 44/2006, 58/2006, 69/2007, 38/2009, 100/2016, 73/2017). 51 Referendum Act art. 2. 48

134

T. Josipović and H. Ernst

the prohibition to sell state property, airspace, and resources (2013), initiatives launched by environmental protection organizations for a referendum at the local level on building apartment hotel complexes (2013), on oil drilling in the Adriatic Sea (2015), on a coal power plant (2015), and on the monetization of Croatian roads (2014). A referendum decision is binding. The competent body of state authority, a local self-government body, or a body of regional self-government, prior to the expiry of one year following the day of the referendum, is not allowed to adopt any legal act or a decision contrary to the decision reached in the referendum.52 Finally, note that under the Act on the Government of the Republic of Croatia, consultations with the interested public are conducted in the procedures of adopting laws, other regulations and acts.53

1.5

Are There Remedies in Your Legal System for Someone to Challenge in Court a Government That Decided Nationalization of the Commons?

Under article 50 of the Constitution of the Republic of Croatia, [I]n the interest of the Republic of Croatia, ownership may be restricted or taken by law, subject to compensation equal to the market value of the affected property. Free enterprise and property rights may be exceptionally restricted by law for the purposes of protecting the interests and security of the Republic of Croatia, nature and the human environment and human health.54

Under the Constitution, it is only possible to carry out expropriation (condemnation) under the Expropriation and Compensation Act.55 In the interest of the Republic of Croatia, ownership may be taken by law (full expropriation, potpuno izvlaštenje), or it may be limited by the involuntary creation of an easement or lease (inchoate expropriation, nepotpuno izvlaštenje). In such case, the owner is entitled to compensation under expropriation regulations. A decision on the existence of interest in expropriation is rendered by the Government of the Republic of Croatia. Protection in the process of expropriation is provided in conformity with the Expropriation Act. The procedure of nationalization of the commons is not specifically regulated in Croatian law.

52

Referendum Act art. 8. Consultations are conducted online. See https://esavjetovanja.gov.hr. 54 Constitution art. 50. 55 Expropriation and Compensation Act (NN 74/2014, 69/2017). 53

Property Meeting the Challenge of the Commons in Croatia

1.6

135

To What Extent Private Property Is Considered a Fundamental Right in Your Legal System, and What Other Constitutional Rights Could Defeat It in a Balancing Test?

The Constitution of the Republic of Croatia (Ustav Republike Hrvatske) lays down the basic principles for the regulation of property rights relations in the Republic of Croatia. The right of ownership is considered a constitutional right within the framework of economic, social and cultural constitutional rights. In the Constitution, the inviolability of ownership is enshrined as one of the highest values of the constitutional order of the Republic of Croatia.56 Further, the Constitution contains an express provision guaranteeing the right of ownership.57 A person who claims that his or her right of ownership has been violated by an act of a state body (e.g. by a court decision), a body of local and regional self-government, or a legal person with public power, deciding on his rights and obligations, may lodge a constitutional complaint with the Constitutional Court of the Republic of Croatia.58

1.7

Private Property Is an Institution Aimed at Allowing Exclusion from Land. Is There Any Limit to Such a Power of the Owner to Exclude Justified by a Right of Access of the Private Non-owner?

The Constitution provides that ownership implies obligations. Holders of the right of ownership and its users contribute to the general welfare. 59 In the interest of the Republic of Croatia, ownership may be restricted or taken by law, subject to compensation. Property rights may exceptionally be restricted by law for the purposes of protecting the interests and security of the Republic of Croatia, nature and the human environment and human health.60 Ownership may also be restricted in 56

Constitution art. 3. Constitution art. 48(1). The constitutional guarantee of ownership applies to all citizens of the Republic of Croatia. The Constitution guarantees equality of all humans. art. 14(1) of the Constitution stipulates that every person in the Republic of Croatia shall enjoy rights and freedoms regardless of race, skin color, gender, language, religion, political or other beliefs, national or social origin, property, birth, education, social status or other characteristics. Pursuant to article 14(2) of the Constitution, all citizens are equal before the law. Equal rights are guaranteed for members of all national minorities (art. 15). 58 The protection of constitutional rights and freedoms by way of a constitutional complaint is provided in arts 62–80 of the Constitutional Act on the Constitutional Court of the Republic of Croatia (NN 49/2002). See generally Gavella (2007), p. 354. 59 Constitution art. 48(2). 60 Constitution art. 50. 57

136

T. Josipović and H. Ernst

order to protect the sea, seashore, islands, waters, air space, mineral resources and other natural assets, land, forests, flora and fauna, other components of the natural environment, real property and items of particular cultural, historical, economic or environmental significance which are specified by law to be of interest to the Republic of Croatia and enjoy its special protection.61 Any restriction of property right shall be proportionate to the nature of the need for the restriction in each individual case.62 Separate laws provide for the manner in which assets of interest to the Republic of Croatia may be used and exploited by holders of the rights thereto and by their owners. When ownership is restricted to protect the assets of interest to the Republic of Croatia, the owners are entitled to compensation which must be regulated by law.63 OOPRA provides general statutory limitations of ownership.64 General statutory limitations are valid and effective against every owner. In order to exercise her powers, the owner is bound to be considerate to general interests and other people’s interests that are not in contradiction with his right. General limitations particularly oblige the owner not to use her right with the purpose of harming or bothering another (prohibition of abuse). The owner is not authorized to prohibit another’s actions regarding on real property if they are necessary to remove harm immediately threatening another that would be disproportionally greater than the damage the owner would suffer as a result of such actions. The owner is also not authorized to prohibit actions by another person taken at such height or depth at which he has no justified interest to exclude them. The owner may also be limited by statutory limitations laid down in separate statutes. Particular statutory limitations bind only owners of particular immovables. The owners of such particular immovables may exercise their ownership rights only within limitations based on a particular piece of legislation with the aim of protecting the interests and security of the state, nature, the human environment and health.65 Particular statutory limitations of ownership are also laid down in order to protect things proclaimed to be of interest to the Republic of Croatia. The owners of such things may then be bound by law to use such things in a strictly prescribed way.66 If the owner does not act in accordance with the obligations imposed by local selfgovernment bodies, these bodies may take temporary control of the thing by applying the rules on temporary custody.67 OOPRA also lays down a separate right to use another’s immovable to carry out works.68 The owner of an immovable on which works must be carried out to enable

61

Constitution art. 52(1). Constitution art. 16(2). 63 Constitution art. 52(2). 64 OOPRA art. 31. 65 OOPRA art. 32(1). 66 OOPRA art. 32(2). 67 OOPRA art. 32(3). 68 OOPRA art. 106. 62

Property Meeting the Challenge of the Commons in Croatia

137

its use may temporarily use the land of another to complete the works, to erect scaffolding or similar equipment if such works cannot be carried out in any other way. As soon as the need for such works ceases, the user must restore the land to its previous condition and compensate the owner for the damage caused. The owner of the used land is also entitled to compensation for the temporary use of the immovable. It is also permitted to install conduits and other devices (for electricity, sewage, gas, water supply, telecommunication, etc.) on another’s immovable. This is possible when the installation of conduits is in the interest of the Republic of Croatia, or in someone’s private interest.69,70 OOPRA also provides for an easement, a right of way (nužni prolaz).71 This easement is created by the court in non-adversarial proceedings at the request of the owner of an immovable that has no access, or does not have any convenient access to a public road, and if the benefit of making a way of necessity for the use of the immovable is greater than the damage incurred on the used immovable. In its order, the court determines how the neighboring immovable will be used, so that the burden on this immovable is minimized. The court also determines the compensation paid by the owner of the dominant estate to the owner of the servient estate, as the condition for the establishment of the way of necessity is the payment in full of such compensation. The compensation may not be less than what would be paid if the immovable were expropriated.

2 Questionnaire: Part II 2.1

Housing

John, Orri, Sekela and Satoshi, desperate to find a home at an affordable cost, together with their families (including several children) inhabit homes in a development project, suspended due to delayed authorizations. The four friends and their families work on both the buildings and the land to enhance their living conditions (for instance, by painting the walls and adding a little garden). After a couple of months, the legal manager of the land discovers the four families and attempts to remove them. The families refuse to leave and the manager brings a claim against them. The facts of the case are ambiguous as to how the four friends and their families entered the property. They may have been moved into temporary housing set up by the developer, who subsequently delayed the project due to authorization issues. They also may have forcibly entered the property and subsequently continued

69

OOPRA art. 108. When the installation of conduits or other devices is in the interest of the Republic of Croatia, the provisions on the expropriation of immovables apply accordingly. 71 OOPRA art. 224. 70

138

T. Josipović and H. Ernst

occupying it. Additionally, it is not clear from the facts whether the developer is a public or private entity. The available legal claims and defenses differ depending on the mentioned variations, so they are included below. The most immediate remedy for a possessor dispossessed of her property is an action for the restitution of possession (trespass) under OOPRA articles 21 and 22. This action affords protection to a possessor who has been removed from or disturbed in possession of property.72 The claimant must demonstrate that the defendant unlawfully excluded or disturbed the possessor in her property, and must seek (a) a declaration of the disturbing act, (b) a restitution of possession, and (c) an injunction of further disturbance.73 The court should generally issue an order for such relief as soon as possible, in urgent proceedings, wherein it will limit itself to determine the last state of possession and the disturbing act.74 These proceedings will not include any discussion of property rights, legal entitlements to possession, bona fides of the possessor, or concerns “of how the disturbance may have been done for a social, public, or similar interest.”75 Defenses in such cases are limited. The defendant may argue that the claimant was not in possession of the property at the time of the alleged disturbance. In the present case, it is not clear whether the legal manager was in fact in possession of the property or not, and this would have to be determined in the proceedings. The fact pattern mentions a legal manager, who may or may not be the developer. Possession is a matter of fact, so the fact that there is a legal manager employed does not in and of itself make her a possessor (in fact). If the legal manager never acquired possession, but was simply designated as legal manager by the developer, there would be a lack of possession on her side and the claim would fail. If the legal manager obtained possession from the developer, or the legal manager and the developer were the same person, then possession would need to be proven abandoned or lost by the defendants. In principle, possession, once obtained, continues and is presumed to continue until it is proven that it had ceased or was interrupted.76 The developer was clearly in possession of the property at some point in time, so in order to establish that possession had ceased, the defendants would have to prove abandonment. For abandonment, it is not sufficient for the possessor to simply be physically absent from the property, or even demonstrate neglect, because possession is established by control, irrespective of physical presence. If the property was fenced and padlocked, it would thus be sufficient for the possessor to possess the key to be considered “in possession.” If the property was unfenced or unlocked, sign posting such as “DO NOT ENTER,” “PRIVATE PROPERTY,” “NO TRESPASSING,” “PROPERTY OF COMPANY X,” or similar may be sufficient for possessory status. In order to

72

OOPRA art. 21(1). OOPRA art. 22(1). 74 OOPRA art. 22(2). 75 Id. 76 OOPRA art. 19(2). A disturbing act will not cause possession to lapse if the possessor reenters possession. OOPRA art. 21(5). 73

Property Meeting the Challenge of the Commons in Croatia

139

claim abandonment, the defendant would need to show that the possessor had willfully resigned control over the property, which would seem to be difficult under the present fact pattern. Similarly, in order to prove other loss of control, the defendant would need to demonstrate that the previous possessor had lost control over the property by other circumstance (e.g. by ceding control, or by force and willful or neglectful acquiescence to such loss). If the defendants moved into the development project with consent of the possessor, such consent would constitute grounds for their temporary occupation of the property, and would be governed by such initial license. Once the license was revoked, or (in case of lease) the lease terminated, the defendants would no longer hold an entitlement to occupy the property, and would be considered both “unlawful,”77 “vicious,”78 and “ dishonest (mala fide).”79 The crucial characteristic is “vicious” because vicious possession is not protected against claims of the former possessor.80 The viciousness lapses after the earlier of (a) 30 days after the date the possessor learned of the disturbance and the identity of the perpetrator and (b) one year after the date of the disturbing act.81 The present fact pattern states that the legal manager of the land only discovered the occupation a couple of months after supposed entry, which would give a deadline of 30 days from the date of discovery to file a petition to recover possession. Matters may be complicated by several additional factors. First, if the initial entry was by way of license or lease, the lessor would have been considered an indirect (constructive) possessor,82 and the lessee would have been considered a direct possessor83 of the property. This might, in turn, have weight on the outcome of the possessory action. In cases where a possessory dispute arises between a direct and an indirect possessor, the indirect possessor is barred from action if “in order to decide the claim, it would be necessary to discuss their legal relationship.”84 In cases where the terms of the lease, license, or similar agreement constituting grounds for the defendant’s occupation, are complex, ambiguous, or require further heavily factoriented analysis, the court may throw the case out, and relegate the plaintiff to regular (non-urgent) civil proceedings where such matters will be thoroughly analyzed. Second, if the claimant and defendant co-occupied the property, the claimant is barred from action unless (a) the defendant totally excluded or materially restricted the claimant in her co-possession of the property85 and (b) it is not necessary, in

77

OOPRA art. 18(1). OOPRA art. 18(2). 79 OOPRA art. 18(3). 80 OOPRA art. 20(3). 81 OOPRA art. 21(3). 82 OOPRA art. 10(3). 83 OOPRA art. 10(2). 84 OOPRA art. 23(2). 85 OOPRA art. 24 (1). 78

140

T. Josipović and H. Ernst

order to decide the claim, to discuss their legal relationship.86 In order to raise this defense the defendants would need to show that there was co-possession, which would only be possible under the license/lease scenario, with the company retaining control over the entirety of the property (e.g. by being in possession of a key), and by demonstrating that the co-possessors are not in fact preventing the company from enjoying the possession of the property. This would most likely be difficult, unless there was a non-standard arrangement with the company co-possessing the entirety of the property. The company would need to demonstrate its actual intent and effort to co-possess consistent with its previous co-possession. However, the co-possession defense would be successful if the company claimed sole possession, and it wasn’t disturbed in the co-possession of the sort it enjoyed prior to the alleged disturbance, conditioned on co-possession being previously established. The complexity defense might be successful, like in the case of indirect possession, if the co-possessory agreement was complex, ambiguous, or required further heavily factoriented analysis.

2.1.1

Protecting Ownership

Ownership is protected via an action in rei vindication, seeking the surrender of the property to the claimant as owner. In principle, the claimant must thus prove ownership of the property, as well as the defendant’s possession.87 The range of defenses in such cases is wide. Most notably, the defendant may oppose the suit by demonstrating a lack of title, or simply proof thereof, on the claimant’s part, because the cause of action is based on ownership, the dispute involves as much the claimant’s property right, as the defendant’s lack of entitlement. In the case presented, as mentioned earlier, the claimant would have to prove ownership, so, unless the legal manager was also owner of the property (i.e. holder of title), the legal manager’s claim would most likely fail. In case the developer petitioned herself, she would have to prove ownership of the property, usually by submitting land registration records.88 Note that such records may, under certain conditions, be brought into question, so the defendants may still provide proof that the claimant is not owner of the controversial plot. The defendant may also oppose the claim by proving some sort of right authorizing her to possess the property, and consequently refuse surrender89 (e.g. a valid license, easement, lease, or even ownership). The issue of improvements slightly complicates the matter. In such case, the decisive factor is honesty (bona fides) of the defendant. A defendant will be deemed bona fide if she had no knowledge, nor had sufficient reason to suspect she had no

86

OOPRA art. 24 (2). OOPRA art. 162(1). 88 These are public record, and are deemed as correct. 89 OOPRA art. 163(1). 87

Property Meeting the Challenge of the Commons in Croatia

141

right to possess the property.90 A bona fide defendant may claim all necessary and useful expenses and keep the property until such costs have been paid.91 Conversely, a mala fide defendant may claim only expenses that would have been necessary for the owner,92 and must surrender the property immediately, payment notwithstanding.93 The facts presented do not seem to describe the four friends and their families as being bona fide, so they would likely not be able to refuse surrender even if they may have a claim for certain expenses, although this is questionable. The facts presented state that the improvements were not out of necessity, which would have befallen the owner, but in order to enhance their own living conditions. Such improvements would most likely not be considered as necessary under OOPRA art. 164(3) and no claim would likely be available.

2.1.2

Landlord-Tenant

A landlord-tenant analysis is only possible if the underlying relationship between the developer and the four friends and their families was initially a landlord-tenant relationship, which is regulated under contract law in Croatian law.94 In such case, the action may simply proceed under contractual remedies, i.e. eviction would be enforcement of a contractual clause in the lease, irrespective of ownership. As the facts do not suggest a landlord-tenant relationship, this part of the analysis will not be further pursued.

2.1.3

Self Help Remedies

The fact pattern specifically states that the manager brought a claim against the defendants, but note that the OOPRA also provides for self-help remedies. The statute only allows self-help, e.g. forced entry, or removal “if such action is necessary if the aid of the court would be delayed and danger is imminent.” It is not clear what constitutes a sufficiently long delay in judicial action to authorize self-help; however, it may be argued that in the case presented due to a generally-known slow pace of judicial proceedings, including both litigation and enforcement, self-help would be justified under that test. However, self-help is only available if (a) the potential claimant would be granted judicial relief in case the case was tried,95 and

90

OOPRA art. 18(3). OOPRA art. 164(2). 92 OOPRA art. 165(3). 93 OOPRA art. 164(4). 94 See Obligations Act (OA) (NN 35/2005, 41/2008, 125/2011, 78/2015, 29/2018) arts. 550–78, and Tenancy Act (NN 91/1996, 48/1998, 66/1998, 22/2006, 69/2018). 95 OOPRA art. 27(1). 91

142

T. Josipović and H. Ernst

(b) if the applied force is appropriate to the circumstances.96 If the facts of the case are prone to interpretation, and particularly if active resistance may be expected, these additional requirements may provide disincentives to the potential claimant, for fear of having to subsequently pay damages.97 At the same time, note that the state of possession will not be reverted even if the self-help remedy was wrongfully exercised—only damages will be awarded—which may in fact provide incentives to go forward with wrongful self-help actions, if the expected damages are less than the expected gains from repossession.

2.1.4

Adverse Possession

In cases of long-term squatting, the law institutes adverse possession, which automatically transfers ownership of the property to the adverse possessor after the designated period of time (10–40 years, depending on the characteristics of the possessor’s possession and the owner98). As the facts assume a period of only a couple of months, adverse possession would clearly not be available. Additionally, adverse possession is only available to bona fide possessors,99 hence the defendants, who, the facts suggest, knew they held no title to the property, would not be considered adverse possessors. Finally, possession must be “independent” i.e. under a claim of right against the owner, hence possessors who do not claim property as their own, but acknowledge third-party ownership, do not qualify as adverse possessors. The defendants under the presented fact pattern do not seem to claim a right over the occupied property, so they would not meet the independency requirement for adverse possession, other requirements notwithstanding.

2.1.5

Abandonment and Neglect

Physically abandoning real property never extinguishes ownership, and can thus not be grounds for any changes in property rights. Therefore, the fact that the developer abandoned the property by ceasing construction has no legal effect in terms of her property rights. Abandonment is a named statutory ground for the extinguishment of ownership, and is defined, for real property, as the termination of ownership based on the owner’s act of abandonment done in the form appropriate for land registration transfers, and the consequent expungement from the land register.100 Such property

96

Id. OOPRA art. 27(3). 98 See OOPRA arts. 159(2)-(5). 99 OOPRA art. 159(3). 100 See OOPRA art. 133(1). 97

Property Meeting the Challenge of the Commons in Croatia

143

immediately becomes property of the Republic (public property), and is registered as such contemporaneously with expungement of the previous owner.101 Neglecting property is rarely sanctioned. A general provision of the OOPRA provides that only in case an owner is obligated by law to perform some act in respect of her property the local government may sequestrate the property and temporarily manage it in order to meet such obligations.102 An example of statutory duties to maintain property is found in the Agricultural Land Act article 4(4), providing that owners are obligated to cultivate their agricultural land, and are fined in cases of breach of said duty.103 Furthermore, in case of uninhabitable buildings (blight), a municipal services monitor may issue a condemnation order if the building is not used for at least 5 years.104 Similarly, the municipal services monitor may issue orders ordering repairs105 or completing the building’s external appearance.106

2.1.6

Eviction

The eviction of the four friends and their families is only possible after a final judgment has been handed down. Even in urgent proceedings described above, a significant amount of time (roughly 2 years, or more) may lapse before eviction may even be sought, let alone enforced. For the owner, this may cause significant costs, and may incentivize the owner to pursue extralegal remedies, such as settlements or violence. Eviction is sought from the court, which will issue an order for the removal of the occupants from the property, which will be carried out by the judicial enforcement officer with optional police assistance,107 and in presence of two adult witnesses or a notary if the occupant is not present.108 Because enforcement proceedings are separate from the previous litigation, the enforcement order is separately issued and may be attacked independently from the underlying judgment. This may push back actual eviction, because there are procedural mechanisms that may be used by the occupants to delay it. Even though eviction may be carried out before the eviction order is final,109 defendants may ask the court to issue a stay110 under certain defined conditions (e.g. if the eviction order is pending appeal). If the stay is granted, eviction may be significantly delayed.

101

OOPRA art. 133(2). OOPRA art. 32(3). 103 See Agricultural Land Act (NN 9/2013, 48/2015) art. 61. 104 See Building Inspection Act (NN 153/2013, 115/2018) art. 52. 105 See Building Inspection Act art. 53. 106 See Building Inspection Act art. 59. 107 See Enforcement Act (EA) (NN 112/2012, 25/2013, 93/2014, 55/2016, 73/2017) art. 256(1)-(3). 108 See EA art. 47(2). 109 See EA art. 256(2). 110 See EA art. 65. 102

144

2.1.7

T. Josipović and H. Ernst

Right to Respect of the Home

Croatia has a recent history of a socialist property system, which was sensitive to housing as a supreme social issue. In a series of cases relating to the collapsing structures of social ownership designed to guarantee housing—socialist tenancy rights—the ECtHR discussed the right to respect of the home111—as a human right.112 Early cases113 included opinions that, somewhat paradoxically, protected property114 because the applicants were recovering (as opposed to defending) their possession of a home.115 However, once the right for respect of the home was established in this context, it developed independently from—and in contrast to— the property protections in article 1 of Protocol 1 to the ECHR. This line of cases116 included evictees who had an established “home” (understood as an independent construct under the ECHR)117 and who had not held ownership of the property. At best, they held a protected tenancy, at worst they had no possessory right at all.118 These cases had to balance the right for respect of the home against public actors i.e. public property rights, which seems to have been pivotal for the court.119 In Vrzić v. Croatia120 the ECtHR, following Zehentner v. Austria,121 held that the eviction was an interference with the right to respect for the home122 but that it passed the necessity test. This court suggests, citing to J.P. v. France123 and D.P. v. United

The home is defined functionally, independent of property rights, via “sufficient and continuing links” with a dwelling. See e.g. Blečić v. Croatia (App. 59532/00), Zehetner v. Austria (App. 20082/ 02), and Gillow v. UK (App. 9063/80). See Nield (2013), p. 147; Nield and Hopkins (2013), p. 431; Buyse (2006), p. 294. For cases discussing the notion of home in Croatian constitutional law see U-III-2019/2006 (NN 89/09), U-III-530/2008 (2010), U-III-4088/2010 (2012), and U-III-4775/ 2012 (2014). 112 See generally, Maganić (2016), pp. 19–54. 113 See Cvijetić v. Croatia (App. 71549/01) and Pibernik v. Croatia (App. 75139/01). 114 In terms of the ECHR, it is the peaceful enjoyment of possession that is protected in art. 1 of Protocol 1 to the ECHR. 115 See Buyse (2011), pp. 207–209. 116 See Ćosić v. Croatia (App. 28261/06), Paulić v. Croatia (App. 3572/06), Orlić v. Croatia (App. 48833/07), Bjedov v. Croatia (App. 42150/09), Brežec v. Croatia (App. 7177/10), Lemo and oths. v. Croatia (App. 3925/10 et seq.) Škrtić v. Croatia (App. 64982/12), and Tijardović v. Croatia (App. 38906/13). 117 Mihelčić and Marochini Zrinski (2014), pp. 164–192. 118 In further cases dealing with protected tenancies (see e.g. Statileo v. Croatia (App. 12027/10)), the ECtHR held that such tenancies violated art 1 of Protocol 1 to the ECHR. See also HuttenCzapska v. Poland (App. 35014/97) (providing analogous reasoning for cases under Polish law). 119 See Vrzić v. Croatia (App. 43777/13), para. 65 (citing to cases Ćosić, Paulić, Orlić, Bjedov, and Brežec, fn. 87). 120 Id. 121 Zehentner v. Austria (App. 20082/02). 122 Vrzić, para. 59, fn. 90. 123 J.P. v. France (App 26215/95). 111

Property Meeting the Challenge of the Commons in Croatia

145

Kingdom124 (both cases of tenant eviction by owner after the termination of a lease), that the approach in cases where private (as opposed to public) parties are involved is different.125 The distinctions between public and private property suggests that respect for the home must be provided by a public, but not by a private owner. In the case of a private owner the legal structure created by property rights is deemed sufficient and efficient to resolve the conflict and this structure is protected independently via article 1 of Protocol 1.126 The Croatian Constitutional Court adheres to the ECtHR’s case law,127 and this is certainly expected from all courts within the Croatian civil justice system.128 The Constitutional Court has also applied the public vs. private distinction, deferring to property structures as controlling in cases of purely private parties.129 This reasoning is mirrored in the case law of the lower courts.130 This may be relevant for the case presented if the developer is a public entity. The right to respect for the home may be invoked by the defendants, and such a defense may prove successful in case of a public claimant, if the court’s balancing test weighs in favor of the defendants. The fact that the defendants occupied the dwelling for a short period of a couple of months is not favorable; however, whether the eviction is an appropriate measure “necessary in a democratic society” may likely turn on the developers plans to further work on the project, with the defendants obstructing construction, as opposed to idle possession of the property.

124

D.P. v. United Kingdom (App. 11949/86). Vrzić, para. 67, fn. 90. 126 This would further suggest there is no balancing necessary for public property. Similarly, if the analysis is recast entirely within Article 1 of Protocol 1, the same public vs. private divide obviates a balancing test. See e.g. Goshi v. Croatia (App. 32457/05) para. 36. (comparing the Goshi case with cases Panikian v. Bulgaria (App 29583/96), Pincová and Pinc v. the Czech Republic, (App. 36548/ 97), Bečvář and Bečvářová v. the Czech Republic (App. 58358/00), Netolický and Netolická v. the Czech Republic (App. 55727/00), Mohylová v. the Czech Republic (App. 75115/01) and Velikovi and Others v. Bulgaria (App. 43278/98 et seq.) and stating that “[w]hile in the above-mentioned cases concerning Bulgaria and the Czech Republic two conflicting private interests, namely those of the initial owners whose property had been nationalised during the communist regimes and the new owners who bought the nationalised flats, had to be taken into consideration, in the Court’s assessment under Article 1 of Protocol No.1 to the Convention, in the present case no such sensitive balance is at stake” because the property was ab initio socially i.e. publicly owned). 127 See U-III-46/2007 (2010). 128 See U-III-2071/2010 (2014). 129 Cf. cases U-III-405/2008 (NN 38/12), U-III-1422/2006 (NN 68/12), U-III-2073/10 (2014), U-III-869/2015 (2014), U-III-5197/2013 (2014), U-III-3736/2012 (2014), and U-III-3774/2012 (2015) (violation of right to a home) with cases U-III-7534/2014 (2015) and U-III-3317/2015 (2015) (no violation). See generally Marković (2016), supra note 112 at 55–82. 130 See Kontrec (2016), pp. 83–99 (quoting examples from lower court opinions and concluding that a public-private divide is present in their case law). 125

146

2.1.8

T. Josipović and H. Ernst

Political Considerations and Reform

Social pressures caused by a large number of evictions following the financial crisis has spurred grassroots consumer-oriented movements that evolved into political parties who won a number of parliamentary seats. The most prominent is the Živi zid (loosely translated as “The Human Shield”), whose name is derived from the picketing of eviction sites and forming a human shield physically obstructing entry to the site.131 Such eviction scenarios may additionally delay or forestall the actual removal of the defendants from the occupied property. Legislative action has been taken on several occasions since the financial crisis, and novel reforms are currently in the early stages of the legislative process. The most recent reform introduced a special form of housing assistance directly into the Enforcement Act. The Amendment132 introduces a publicly funded right to accommodation for evictees with no alternative for up to 18 months (payable either in cash or by housing provision).133 This amendment partially resolves the issue of homelessness, but only in cases the evictee was evicted from the property that she owned because the property was sold to satisfy a debt.134 The provisions do not attempt to solve the issue of an eviction like the one in the case presented, where the eviction is a consequence of illegal entry, not a forced sale. This omission has not been removed in the currently pending Enforcement Act Bill,135 which contains identical provisions.

2.1.9

Housing Assistance

Homeless people may request temporary housing for up to a year under the crisis management provisions of the Social Care Act.136 All larger cities are required to

131

The other is the SNAGA, closely linked to the Franak, an NGO of consumers who consider themselves victims of systematic violations of consumer rights in the financial services industry (in particular, this concerns Swiss-Franc-denominated mortgage loans). 132 Amendments to the Enforcement Act (NN 73/2017). 133 See EA art. 131(a). 134 Current legislation, after the 2017 Amendments, precludes forced sales of real property if the principal debt is below 20,000 kn (app. 2650 euros), and requires courts to conduct a fair balancing test between the interests of the creditor and the debtor, which includes the fact that the property is the debtor’s home. See EA art. 80.b. The currently pending Enforcement Act Bill (Final Bill of the Enforcement Act, November 22, 2019, available at: https://www.sabor.hr/sites/default/files/ uploads/sabor/2019-11-22/150102/PZE_676.pdf) doubles this amount, but allows a forced sale even in such cases if the creditor proves she attempted but failed at enforcing her debt against other assets of the debtor, and the balancing test shows the balance of interests between the creditor and debtor would not be disturbed. See id. art. 91. 135 Id. 136 See Social Care Act (SCA) (NN 157/2013, 152/2014, 99/2015, 52/2016, 16/2017, 130/2017, 98/2019) art. 89(3).

Property Meeting the Challenge of the Commons in Croatia

147

plan funds for homeless shelters,137 and are required to promote and maintain such activities.138 Particularly in case of homeless families, the local government is always required to secure temporary housing, in order to prevent the separation of children from adult family members.139 Thus, under the facts presented, the families, if homeless in terms of the Social Care Act, would have a right to temporary housing post-eviction.

2.1.10

Procedural Rights Awareness

In a recent survey we conducted on consumer protection in the public utility services industry in Croatia140 participants were asked about basic procedural rights in enforcement proceedings, and over 40% of participants did not know they must file an appeal against an enforcement order if they believe they are not obligated to pay. These results are demonstrative of a general lack of procedural awareness in Croatia, which, unfortunately, results in unexercised rights in many cases. Even though there is access to legal aid,141 such is still not sought in a large number of cases due to poor awareness and a relatively lengthy application process. Hence, in a case of homeless families, such as under the presented facts, it remains highly questionable what rights, if any, whether in litigation, enforcement, legal aid or housing assistance proceedings, would in fact be exercised, even though they are guaranteed by statute. One of the major critiques of the current system lies in a lack of built-in mechanisms that would streamline processes and add automaticity to existing remedies to ensure they are in fact used.

2.2

Healthcare

Together with other people from her neighborhood, Emanuela has organized a volunteer non-profit medical clinic in what appeared to be an abandoned building offering free services to irregular migrants who have no health insurance. Soon after, Syntech Corporation, the owner of the building, realizing that the market value of the building has increased since they acquired it, decides to sell it at a profit. Syntech would like Emanuela and her volunteers out of the building within a few 137

See SCA art. 117(4). See SCA art. 122(1). 139 See SCA art. 122(5). 140 This survey was conducted as part of the project “Civil Law Protection of Citizens in the Financial Crisis” funded by the Croatian Science Foundation, with the assistance of Ipsos Public Affairs. 141 See Act on Free Legal Aid (NN 143/2013, 98/2019). There are currently 55 licensed legal aid providers in Croatia. See full list at: https://pravosudje.gov.hr/istaknute-teme/besplatna-pravnapomoc/ovlastene-udruge-i-pravne-klinike-za-pruzanje-primarne-pravne-pomoci/6190. 138

148

T. Josipović and H. Ernst

days in order to sell it, and initiates an eviction action. Many people in the area are upset by this news. Emanuela defends. Emanuela’s position is similar to the position of the four friends and their families in the housing case above. The same claims and defenses described above are available to both Emanuela and Syntech. Syntech’s wish for “Emanuela and her volunteers out of the building within a few days” is merely wishful thinking in terms of eviction, as it is impossible to evict anyone in such a time frame. Syntech may only resort to self-help remedies, having in mind the caveats described above. Emanuela could not legally organize a clinic if she did not meet the requirements under the Health Protection Act,142 which typically include that, in order to be approved as a health care provider, the applicant must submit proof of having adequate premises.143 An apparently abandoned building would most likely not meet these requirements due to its dilapidated state, and, more importantly, because of the lack of any legal right of the applicant provider (Emanuela) to the property. Under the presented fact pattern, Emanuela would be most likely be banned from continuing her health care provision under HPA art. 213 by order of a health inspector. She would also be severely fined under HPA art. 246 and be criminally indicted under Criminal Code144 art. 184 if she was not a qualified health professional. Furthermore, the fact Emanuela is operating an illegal health care facility may only exacerbate her position in terms of occupancy. Because orders issued by a health inspector are final145 and may be effective immediately146 in case of a health inspection (which may be notified by Syntech), Emanuela could be banned from further activity in a matter of days. Such an order would not legally constitute an eviction order, but would effectively preclude further activity, thus bringing about a de facto eviction of the health providers, as their only use of the building was for purposes of the clinic. The fact pattern notes that the public is upset by Syntech’s actions. Sytech may avoid public criticism by employing the health inspection to shut down the clinic, and thus indirectly resolve the property issue. Public outrage is a function of Emanuela being a non-profit health provider and providing health care to irregular migrants who have no access to regular health care. However, Croatian law provides certain health care plans for illegal aliens who are awaiting deportation under Aliens Act147 art. 101(3), and for certain other categories of aliens that include irregular

142

Health Protection Act (HPA) (NN 100/2018, 125/2019). See e.g., HPA art. 47(1), 51, 55, 67, 72, 74, 76, 77, 103, 213(1)(5), 242(13)-(14), 245(1)(10)(11), 245(1)(11) and 246(1)(13). 144 Criminal Code (NN 125/2011, 144/2012, 56/2015, 61/2015, 101/2017, 118/2018, 126/2019). 145 See HPA art. 216 (allowing judicial review). 146 See HPA art. 215(2). 147 Aliens Act (NN 130/2011, 74/2013, 69/2017, 46/2018, 66/2019). 143

Property Meeting the Challenge of the Commons in Croatia

149

migrants under Aliens Health Protection Act148 art. 17. Even though health care is limited in scope, irregular migrants are not left without any health care services, so Emanuela’s endeavor, albeit laudable, may not elicit as much public support as initially assumed under the fact pattern.

2.3

Food

Marta, Mattias, and Madison, together with their families and neighbors, cultivate a communal garden on a vacant plot of land as a food source. Max Corporation, the owner of the plot of land, discovers the three families and tells them to leave. Max Corporation brings a claim against the three families for their removal and the removal of the food grown by the families on its land. The gardeners’ position is similar to the position of the four friends and their families in the housing case above. The same claims and defenses described above are available to both the gardeners and MaxCo. MaxCo may request removal of the food, but the gardeners are free to take the fruit, vegetables, and plants they have grown, per OOPRA art. 165(5). The fact that the squatters are growing food for their own consumption does not make a legal difference compared to other improvement cases. There is no general or specific “right to food” that would be protected against a property claim. However, because food is of primal value for sustaining life, it might be argued that occupation of the property to grow food was out of “necessity” in legal terms. Necessity is a valid legal defense, under both a possessory action and a property action. In a possessory scenario, necessity would remove the unlawfulness of the possession,149 which in turn would bar the suit. In a property scenario, the defendants would have to argue that the necessity grants them a right to temporarily occupy the property, thus barring MaxCo’s rei vindicatio. Under OOPRA art. 31(1)(2) the owner is not authorized to enjoin actions necessary in order to remove imminent harm that is disproportionally larger than the harm to the owner from such actions, but may only seek damages. If the court found, which is not likely, that the food-growing was an action taken to remove immediate harm (famine) to the gardeners, then it would temporarily bar the suit. This seems, however, more of an academic than a practical alternative, as it would be difficult to construe both imminent famine and the gardening in terms of necessity. Access to food is guaranteed under provisions of the Social Care Act similarly to housing150 discussed above. However, access to food is much greater compared to housing due to a larger number of

148 Act on the Mandatory Health Insurance and Health Protection of Aliens in the Republic of Croatia (Aliens Health Protection Act) (NN 80/13, 15/2018). 149 See OOPRA art. 20(1). 150 See SCA art. 86 and 87.

150

T. Josipović and H. Ernst

extra-governmental entities organizing and running communal meal centers, most notably the parishes of the Catholic Church. Recall that the housing case contains a discussion on the right to respect of the home, which requires the courts, at least in cases of public claimants, to conduct a balancing test to determine the weight of that right as a human right as compared to the public claimant’s right to protection of property. In this case, the facts suggest that the plot is not used as a home, but as a communal food-growing garden. Absent the plot’s home status, no special protection of such kind will be considered by the courts.

2.4

Water Rural

Maya, Malik, and Mei depend on the water of Flumia, a nearby river. The three villagers together with other villagers in the area build aqueducts and an irrigation canal from the river to their respective homes and fields. After a few years, a private corporation diverts the water of the Flumia River. Soon after, Maya, Malik, and Mei realize that water no longer flows to the aqueducts and irrigation canal from the river. Maya, Malik and Mei sue. This is a complex case, and its analysis turns on the underlying property rights. Water is a commons, under WA article ___ , but the riverbed is owned either by the Republic (“public water good”) or is privately owned. If the villagers are also owners of the Flumia riverbed, i.e. if the river flows over their land, they may construct aqueducts and an irrigation canal for their own water consumption,151 taking into account building regulation. In order to use the water, however, they need a water permit.152 The water permit will set out the terms of non-household water and for irrigation, against a set fee.153 If the villagers do not own the riverbed, they are not allowed to construct the system without approval from the owner of the land. The Corporation is not allowed to divert the river; such actions are expressly prohibited in WA article 146. The villagers may notify the local water inspector, which should issue an immediate order to return the flow to its previous state.154 Furthermore, under OOPRA art. 112 any diversion or other change in flow of the river would be prohibited. The villagers could petition the court to order the company to remove the obstruction and return the river to the previous state of flow, and to further refrain from such actions.155 The villagers could file suit by virtue of their possession, irrespective of land ownership.156

151

WA art. 26(7). WA art. 91. 153 WA art. 169. 154 WA art. 146(2). 155 OOPRA art. 100. 156 OOPRA art. 100(2). 152

Property Meeting the Challenge of the Commons in Croatia

151

The facts presented state that the villagers have constructed the system a few years before the diversion. The given time frame is not relevant to the case as far as water use is concerned. Had the villagers constructed the system 10 years ago, the situation would be no different, and they would still require a water permit and concession for their water use, because they continue to use the water and must therefore comply with water regulation. The same would be true if the system was constructed by ancestors some 50 or more years in the past, for the same reasons. As far as river diversion is concerned, the time frame is also irrelevant. The villagers do not have more rights as to the water if more time passes since construction. This is because the act of diverting the river is recent, and they are protected against the recent diversion even if they are recent owners or possessors of the riverbed. The villagers could also construct a well in order to get access to a groundwater source. For groundwater, a permit is not required for household use157 but would be required for irrigation.158

2.5

Water Urban

Jose, Jasmine, and Horatio are three friends that inhabit an apartment together in a city, Flumiapolis. Following a large increase in the price of water (200% in one year), the three friends fail to pay their water bills. After failing to pay their third bill, the water management cuts off their access to the water supply. Jose, Jasmine and Horatio sue. The water supplier is allowed to terminate water service for reasonable cause, according to its general terms and conditions.159 The Water Services Act sets out what “reasonable cause” is, and lists water use for human consumption in quantities exceeding allowed at the time when water use is limited in accordance with the law, use of water services by unregistered users, illegal obstruction or restriction of other users in using water services, causing disproportionately high loss of water in buildings with several units, failure to pay water services bills, and installing or altering internal water supply and drainage system equipment that does not comply with general terms for the delivery of water services.160 In case of unpaid water bills, the Water Services Act restricts the ability of the provider to cut off or restrict service to consumers to cases of a three-month serial default, or a non-serial three-month default within a single calendar year.161 Such actions must be preceded by a notice

157

WA art. 88(2). WA art. 88(3). 159 Water Services Act (NN /2019) art. 4. 160 Water Services Act art. 41(2). 161 Id. art. 41(3). 158

152

T. Josipović and H. Ernst

with a minimum of 15 days allowing payment of all arrears.162 The supplier must, even in cases where water supply is cut off, still supply a minimum of 50 liters daily per household member during an eight-hour period.163 These provisions were enacted recently and are a direct result of developments in case law. Under earlier law it was not immediately clear whether unpaid bills are grounds for water shut-offs, but this issue had been addressed in case law. General terms and conditions, which vary across local communities and local water suppliers, often stipulated that the water supplier is authorized to disconnect service in case of serial default (usually 2–3 successive defaults).164 These conditions are void, and existing case law of the Constitutional Court165 and the High Administrative Court166 both confirm this. It thus seems that the Water Services Act tried to overrule existing case law, or at least find some compromise in allowing partial shut-offs in cases of serial default. Because water service constitutes provision of a public service, the friends could request action from the utility inspection officer under article 158 of the General Administrative Procedure Act and article 114 of the Municipal Services Act,167 which could order restoration of service. Similarly, the friends could request restoration of service under OOPRA provisions protecting possession, which were discussed above in the housing context. Here, the friends would act as claimants seeking judicial protection of their (water-supplied) property against the water company that wrongfully discontinued service. There is recent case law supporting such claims.168 Furthermore, the conditions can be reviewed by courts under general provisions of the Obligations Act,169 which provides that any term is void if it causes, contrary to the principle of fair dealing, an obvious unfairness in the rights and obligations of the parties to the detriment of the non-drafting party, even if they are approved by the competent authority.170 The conditions can be judicially reviewed under the fair dealing standard. The court should take into account all circumstances of the case

162

Id. Id. art. 41(4). 164 See e.g., General and Technical Terms of Water Supply Service art. 102 (Sl. gl. G. Zagreba 17/2013) (City of Zagreb, any two defaulted bills, after notice sufficient for disconnecting). 165 See U-II-1711/2002 (2007) (stating that an internal decision of the water supplier to disconnect service in cases of default is unconstitutional, and in violation of the Municipal Service Act in force at the time, as the supplier had no authority to decide on unilateral termination, but only to seek payment in a judicial proceeding). 166 See Usoz-50/16-7 (2016) (NN 76/16) (stating that general and technical terms of water supply service stipulating disconnecting water service are in violation of the WA, and thus void, unless they are limited to certain technical or technological issues, and not default). 167 Municipal Services Act (NN 68/2018, 110/2018). 168 See ŽS Dubrovnik Gž-1085/10 (2010) and Žs Zadar Gž856/16 (2016) (both ordering restoration of service). 169 Obligations Act (NN 35/2005, 41/2008, 125/2011, 78/2015). 170 OA art. 296(1). 163

Property Meeting the Challenge of the Commons in Croatia

153

before and at the time of contract formation, the nature of the contract, the type of service, other contractual provisions, as well as provisions of linked contracts.171 A notable exception to the review exists for provisions that are taken from existing legislation and regulation.172 Under the present facts, conditions that allow shut-offs would most likely be construed as unfair, and thus void, notwithstanding the Water Services Act, hence the affected party could sue for contract breach, requesting restoration of service as well as damages. It is a general principle of water law that water supply services should be provided at socially acceptable prices.173 The 200% increase as such seems problematic, unless there are special circumstances justifying it. The price of water services is set by the water supplier, in accordance with detailed provisions of the Water Services Act and a decree issued by the Croatian Government,174 and is subject to public notice and comment.175 Furthermore, for socially deprived citizens the price of the minimum amount of household water supplied cannot exceed 60% of the base rate set out by governmental decree.176 Additionally, if the three friends met the applicable poverty criteria set out by the SCA, they would be authorized to request assistance by the city for the full amount of their water bill, claimed as a housing expense.177 Because of the nature of the service as essential, time is critical. The inspection route might be a quick solution, but current case law does not suggest readiness to issue inspection orders. Therefore, it seems that the judicial route would be preferable. The suit must be filed as a possessory suit, requesting immediate action from the judge, due to the urgency of the matter. The court could act immediately, or within a few days, but would have to be ex parte made aware of the gravity and urgency of the situation. Conversely, the contractual route is a slow and costly one, because the affected party (who has no access to water during the proceedings) must sue for breach of contract and require the court first to order resupply, and then again to enforce the order, which would invariably cause an unacceptable delay in access to water. Furthermore, the contractual route faces an issue concerning the interpretation of the Consumer Protection Act.178 This statute provides that public services may not be terminated under a set of conditions, including if the consumer initiated judicial or non-judicial proceedings contesting the bill, and has continued paying future

171

OA art. 296(2). OA art. 296(3). 173 Water Services Act art. 5(1). 174 See Water Services Act art. 42–44. 175 Id. art. 45(3). 176 See Water Services Act art. 44(2) and Decree on the Lowest Base Price of Water Services and Types of Costs Covered by the Price of Water Service (NN 112/2010, 66/19). 177 SCA art. 41. 178 Consumer Protection Act (CPA) (NN 1/2014, 110/2015). 172

154

T. Josipović and H. Ernst

uncontested bills.179 If this provision were read so as to authorize terminating service in all other cases, including those where the bill is uncontested, but unpaid for other reasons, and so as to supersede judicial review of conditions under the OA, then terminating services would be deemed allowed in cases enumerated in the Water Services Act (serial default). Although the CPA does not create a right to terminate service, the Water Services Act does, but with limitations that must be observed (including continuing supply of minimum quantities of water). In other cases, the conditions would be as against the Water Services Act, independent of fair dealing, or the CPA. Disconnecting water service is a major social issue in Croatia. Particularly in the aftermath of the financial crisis, which affected a relatively large population in Croatia, a number of households have been disconnected from water supply after having defaulted on their water bill, irrespective of existing case law. This has, in some cases, caused social unrest, including picketing and protests by activists of the “Živi zid” movement, which has since transformed into a political party, who characterized such actions as unfair and inhumane.180 The right to water as a human right has also recently attracted academic attentions, and an extensive academic discussion specifically on this topic has been recently published.181

2.6

Nature

Hamid, Heba, and their two children used to spend many weekends walking and playing in one of the few green areas at the outskirts of the city where they live. The land belongs to a private owner who lives in a small house near the lake. Corporation C acquires the green area and converts it into a members only country club. Hamid and Heba sue. A local environmental group also sues claiming access to what they consider a natural commons. The legal status of the land as the commons is defined by the property rights attached to it. The facts presented state that the land was always owned by private owners, before and after the conversion. When the family roamed the green area, they trespassed on private property if they were not authorized to access the land by the owner, although the facts suggest the owner acquiesced to such activity. Owner acquiescence could in theory lead to an automatic easement, acquired by adverse possession, but the facts do not support such a conclusion. Adverse possession, as

179

CPA art. 27(1). See “Živi zid u Varaždinu prosvjedovao zbog isključivanja vode dužnicima” (Index, 15. 7. 2015), available at http://www.index.hr/Vijesti/clanak/zivi-zid-u-varazdinu-prosvjedovao-zbogiskljucivanja-vode-duznicima/830866.aspx (newspaper article reporting on protests by activists of the Živi zid movement against a local water company which had disconnected 494 households). 181 See Sarvan (2016). 180

Property Meeting the Challenge of the Commons in Croatia

155

well as possession of an easement, is only available for easements appurtenant, requiring dominant and servient estates,182 which are not present in the fact pattern. Conversely, easements in gross,183 which would be more akin to the facts presented, cannot be adversely possessed, nor protected with possessory remedies. Furthermore, the walking and playing do not fit neatly with any of the defined easement types, which encompass a more clearly defined economic benefit for the holder. The facts presented do not state that the area frequented by the family fell under any special category of property which would be designated as free-access. In fact, the fact that the property was successfully converted into a country club suggests there was no such restriction present, so it is unlikely that any claim of the family or the environmental group would yield success. There is no general “right to roam” in Croatian law, so recreational areas must be designated as such by statute or regulation, not by the functional characteristics of the plot. Croatia has many recreational areas which are most often publicly owned and managed. Private owners can exclude others from access to their property by virtue of their ownership. There are however wide exceptions, most notably under the Nature Protection Act184 for certain property types. Areas designated as “protected areas” under NPA art. 111, including strict reserves, national parks, special reserves, nature parks, regional parks, natural monuments, important landscapes, forest parks and monuments of park architecture. In principle, everyone is allowed to visit protected areas,185 and owners must allow access.186 Other exceptions include hunting areas under the Hunting Act.187 Hunting areas may be public, but may also include privately owned plots in case of communal hunting areas.188 Owners of plots included in such areas cannot exclude licensed hunters from entry, but are paid compensation for such restrictions.189 Owners of certain other types of property are also restricted, such as mineral and fossil sites.190 Protected areas are designated as such via the political process, hence the family and the environmental group could use democratic instruments to issue a designation. For national parks and nature parks it is by act of Parliament,191 for strict and special reserves it is by act of Government,192 for regional parks and important landscapes, as well as park forests and monuments of park architecture, it is by act of

182

See OOPRA art. 229. See OOPRA art. 199. 184 Nature Protection Act (NPA) (NN 80/2013, 15/2018, 14/2019, 127/2019). 185 NPA art. 146(2). 186 NPA art. 147(1). 187 Hunting Act (NN 99/2018, 32/2019). 188 See Hunting Act art. 17. 189 See Hunting Act art. 19. 190 See NPA art. 109(6). 191 NPA art. 123(1). 192 NPA art. 123(2). 183

156

T. Josipović and H. Ernst

the local or regional council.193 All proposals are made publicly available, and everyone can review and comment, whereafter the comments are addressed by the drafters before a final vote. On the other hand, certain activities traditionally associated with outdoor recreation are strictly regulated, most notably mushroom picking. It is generally prohibited,194 but the local forestry does issue a mushroom-picking license,195 which allows certain amounts and types of mushrooms to be picked for personal consumption. Such regulation, albeit designed for forest preservation, has attracted some public attention, and was not favorably received.196

2.7

Territory

Yellowriver is a small village sitting within a large and remote forest area. The government grants to Gold Masters Corporation permission to dig seeking for gold in order to develop a nearby mine. Aware of the high polluting risks of gold extraction to the nearby river, villagers erupt in protest and attempt to stop the project by legal means. Do they have any available action to protect the river— either as individuals or as an endangered community?

2.7.1

Inspection Orders

This case is a complex pollution case set in a gold mining context. The first line of defense in pollution cases would be inspection orders. Due to the mining context, the villagers may inform and request action from a mining inspector. Such action is also a legal duty of any employee working on a mining operation.197 The mining inspector may inspect the operation, and if it determines that anti-pollution measures are inadequate may order appropriate measures,198 prohibit further mining

193

NPA art. 123(3)–(4). Forests Act art. 38(2). 195 Forests Act art. 33(3). 196 See e.g., “Najskuplje gljive: Kazne za branje bez dozvole čak do 7000 kuna!” (Večernji list, 20. 9. 2013), available at: https://www.vecernji.hr/zagreb/najskuplje-gljive-kazne-za-branje-bezdozvole-cak-do-7000-kuna-616417 (newspaper article outraged at fines for illegal mushroom picking exceeding $1100.). 197 Mining Act (NN 56/2013, 14/2014, 52/2018, 115/2018, 98/2019) art. 155. 198 Id. art. 45 and 159. 194

Property Meeting the Challenge of the Commons in Croatia

157

operations and/or order the removal of buildings, or equipment,199 revoke a mining exploration permit,200 and revoke a mining permit.201 The villagers may also request relief under water law, asking the water inspector to issue immediate orders to stop polluting, and/or to take appropriate measures to remove pollution.202 The villagers may additionally request relief under general environmental protection legislation. Similar to mining inspections, environmental inspectors may issue immediate orders ordering the operator to take any measure necessary to prevent harm to the environment,203 or cease all operations,204 and perform a cleanup, on pain of severe fines.205

2.7.2

Tort Law

The general rules of tort law set out in the Obligations Act offer a remedy available to everyone called a “claim to remove risk of harm.”206 Under OA art. 1047(1), anyone may request the removal of a source of risk of major harm to oneself or others, as well as refraining from activity causing such risk if the harm cannot be prevented by appropriate measures. The major restriction under these provisions is that if the activity is a socially useful one, and is supported by a valid permit, only socially justified preventive measures may be ordered, and damages in excess of the usual limits may be sought.207 The Croatian wording of the restrictive provision connotes that in order to be “socially useful” the activity must be useful for all members of the society. Social usefulness is not a defined legal term, and it remains unclear whether gold mining for profit could be considered as such. Another particularly difficult interpretation issue concerns the availability of both “appropriate measures” or source removal, and “socially justified preventive measures” in cases where permitting includes the application of certain preventive measures (which it routinely does). Under the present facts, Gold Masters may argue that no source removal or any other measure may be ordered by the court because the general rules under the OA don’t apply as special legislation supersedes it. However, given that OA art. 1047(3) specifically refers to a permit, it could be argued that the provision goes beyond the permitting requirements, otherwise there would be no added value of the provision. The court’s ability to overreach permitting

199

Id. art. 158. Id. art. 46. 201 Id. art. 90. 202 WA art. 217(2)(5)-(6). 203 Environmental Protection Act (NN 80/2013, 153/2013, 78/2015, 12/2018, 118/2018) (EPA) art. 184. 204 Id. art. 230(1), 231(4), and 232. 205 Id. art. 235. 206 See OA art. 1047. 207 OA art. 1047(3). 200

158

T. Josipović and H. Ernst

requirements would, under that interpretation, make the entirety of permitting requirements opaque, and subject to additional substantive judicial review, with no prescribed criteria. Furthermore, because the overreaching interpretation refers only to socially useful activities, it would be difficult to sustain that permitted activities which are not also socially useful are beyond judicial review, as such activities would arguably merit less protection than socially useful ones. Because the OA provision is extremely broad, and given the large body of special rules governing mining and environmental protection, an overreaching claim would likely fail, as OA art. 1047 would be restricted in interpretation as applicable only to hypothetical situations where no preventive measures were initially available and ordered. As far as damages are concerned, the polluter is strictly liable for all damages under EPA article 177 and 178(1), as well as under Mining Act articles 44, 69, and 165. The damages aspect will not be further elaborated, as the fact pattern is focused on directly protecting the resource (the river).

2.7.3

Property Law

General property law includes statutory provisions on nuisance,208 which may be applied to environmental matters in a limited fashion.209 Nuisance is generally prohibited, either if direct210 or indirect, but excessive.211 A nuisance is always excessive if it violates regulatory requirements,212 but also if it causes major harm. The plaintiffs in a nuisance suit are owners or possessors213 of neighboring or other property affected, so in the case presented the villagers would need to show their properties (owned or possessed) were in fact affected by pollution. The fact that the river is affected is not sufficient for a nuisance complaint, if the pollution has no harmful or potentially harmful effect on other property. If the villagers’ properties were affected, they could petition the court to order appropriate measures for future prevention of the nuisance, or harm, or for their reduction, as well as damages,214 assuming Gold Masters had a valid permit for their operations. If there was no valid permit, the villagers could, other law notwithstanding, request the removal of nuisance sources, injunction against actions that caused the nuisance, appropriate preventive measures, as well as damages.215 If the villagers’ properties were not affected, but they could show there is foreseeable risk of nuisance that would

208

See OOPRA art. 110. See Josipović (2017), p. 53 (noting that the limited application stems from the nuisance provisions being designed to protect private property, and not the environment). 210 OOPRA art. 110(4). 211 OOPRA art. 110(2)–(3). 212 OOPRA art. 110(1). 213 OOPRA art. 100(4). 214 OOPRA art. 110(3). 215 OOPRA art. 110(2). 209

Property Meeting the Challenge of the Commons in Croatia

159

otherwise be prohibited, they could still petition the court to order preventive measures.216 Note, however, that nuisance complaints are secondary to remedies under other law, by express statutory language,217 that allows such complaints only “if other remedy is unavailable.” It has been argued that this restriction does not include administrative measures that are designed to be initiated and carried out by the regulator or other public authority.218 This would still allow the villagers to pursue a nuisance complaint irrespective of potential inspections discussed above.

2.7.4

Policy Questions

In order to operate a gold mine, Gold Masters requires a “mineral exploitation concession” (mining permit).219 Issuing such concessions is a complex process which requires the applicant to submit appropriate documentation, including a remediation plan.220 The mining exploration and exploitation project is carefully monitored and permitted gradually, via a series of reports, inspections, and orders that are too complex to review in this paper. As discussed above, such monitoring allows the mining authority to order appropriate measures, including those aimed at environmental protection, at any point during the project. Additionally, the WA requires a water permit for water emissions,221 and the EPA requires that any operation that may cause industrial emissions must be permitted via an environmental permit.222 Operations must at all times comply with the permit,223 and permits may be revoked in certain cases of breach.224 Croatia is party to the Aarhus Convention,225 and it has been implemented in domestic legislation, namely the EPA. Hence, current environmental protection legislation extends the potential range of parties in all proceedings that may impact the environment. Anyone who demonstrates probable cause, in terms of protecting her right to a sustainable environment or protecting the environment as such, may challenge any act or omission of the relevant public authority in administrative or judicial proceedings under EPA article 19(2). Probable cause is presumed for anyone who may show a breach of rights due to the location and/or nature and effect of the

216

OOPRA art. 110(5). OOPRA art. 100(2). 218 See Josipović (2017), p. 65. 219 Mining Act art. 19. 220 Mining Act art. 30(1)(6). 221 WA art. 164–66. 222 EPA art. 95(2). 223 EPA art. 117. and 168. 224 EPA art. 118. 225 See Act on Ratification of the Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters (NN MU 1/2007). 217

160

T. Josipović and H. Ernst

operation,226 and independently for registered environmental NGOs.227 In judicial proceedings, the extent of judicial review is broadened, such that the court may order either the operator, the polluter, or the public authority to take any measure deemed appropriate, including ceasing all operations.228 This means that, in the presented case, the villager may have participated in earlier administrative proceedings connected with issuing all necessary permits to Gold Masters, as well as initiate judicial review of administrative orders, or lack thereof. Similarly, the villagers could have sought assistance from environmental protection NGOs who could have participated in or initiated similar proceedings. Note that judicial review is only available against an administrative decision, or lack thereof, meaning that potential claimants must primarily use administrative proceedings, and only if unsuccessful seek judicial assistance. There is no environmental personhood under Croatian law. Rivers do not have rights, only humans do. The polluted river is hence an issue of protecting the human right to a clean environment or to be free of pollution, and not a river’s right. The human right to a clean environment is set out as a corollary of the human right to a healthy life, guaranteed in article 70 of the Constitution.

2.8

Culture

State funding to a nonprofit local theater is cut in response to austerity measures; as a result the theater will be sold to a private company that wants to operate the theater at a profit. Evgenia, Misha, and Katia are actors, and along with other concerned citizens that protest the sale and other workers, they occupy the theater, and continue the theater’s programming for the public through a combination of volunteer work and donations. The municipality brings suit to evict against Evgenia, Misha, Katia, and the other actors. As a variation assume that the actors obtain permission to stay and to use the theater provided that they run it as a commons in the interest of culture and future generations. What legal form should they use to this purpose? The facts suggest that the theater is a public theater, owned and managed by the municipality. The actors’ occupation of the theater is wrongful, notwithstanding their noble intentions of continuing free production. Their legal position and availability of defenses is similar to the one of the four friends and their families, discussed above. The fact that the occupied building is a theater, and that the actors

226

EPA art. 167(1). EPA art. 167(2). See Maganić (2017), pp. 21, 28 (criticizing the probable cause standard as restricting access). Even though the Croatian Civil Procedure Act (NN) does contain provisions on collective actions in arts. 502a–502h, these do not support such actions in environmental matters. Id. at 45. 228 EPA art. 170. 227

Property Meeting the Challenge of the Commons in Croatia

161

are acting out of concern for public interest is of no additional merit. Recall that under the OOPRA in trespass cases there is an express provision instructing the court to disregard any social, public, or similar interest.229 The municipality’s position in a property dispute will, of course, depend on its ownership. It may be the case that the municipality is not the owner of the building, but that the owner is the public theater, as a public institution.230 In such case, only the theater could sue as owner, not the municipality, even if it controlled the theater. Under the varied set of facts, the actors are allowed to continue production. In order to do so, they would need a change in business organization, because private non-profit theaters must be organized as institutions or art organizations.231 Institutions have a more complex organizational structure,232 so an art organization would be more apposite for a micro-scale non-profit theater. Art organizations are regulated under the Act on Independent Artists’ Rights and the Encouragement of Cultural and Artistic Creativity.233 As such, they must be registered with the Art Organization Register run by the Ministry of Culture.234 In order to acquire the building, they would need to transfer ownership from the former owner (the public theater), most likely by way of gift and land registration. In order to ensure that the building is in fact used as a theater, the gift may include a restriction such that the donee is obligated to use the building for the production of theatrical works freely accessible to the public.235 The donor could revoke the gift if the donee would not comply with the restriction.236 The facts presented suggest the public theater is to be privatized. Legally this would most likely require a change of business organization, as private for-profit theaters must be organized as corporations.237 The building would need to be transferred to the theater corporation, most likely by way of sale. This would somewhat complicate matters if the building was owned by the municipality. A sale of real property owned by municipalities is only available by public tender at fair market value,238 unless the buyer is a legal entity owned by a municipality or the Republic, and the sale is in the interest of general economic and social progress of its constituents,239 hence the sale would require a public tender, and a fair market value.

229

OOPRA art. 21(3). Theaters Act (TA) (NN 71/2006, 121/2013, 26/2014, 98/2019) art. 7. 231 TA art. 22(1). 232 See Institutions Act (NN 76/1993, 29/1997, 47/1999, 35/2008, 127/19). 233 Act on Independent Artists’ Rights and the Encouragement of Cultural and Artistic Creativity (NN 43/1996, 44/1996, 127/2000, 127/2000, 177/2004) (AIA). 234 AIA art. 15. 235 See OA art. 484. 236 OA art. 485(4). 237 TA art. 8(1). 238 OOPRA art. 391(1). 239 OOPRA art. 391(2). 230

162

T. Josipović and H. Ernst

Under the varied set of facts, as mentioned above, the change in business organization would result in the formation of an art organization (or institution), which would fall under the same OOPRA public tender restrictions, even if the intended transaction was one of gift, meaning that no donation would be possible. This, however, only applies to situations where the building is owned by the municipality, not the public theater, so the public theater would need to transfer the building to the new entity prior to liquidation. Note that in case of a gift with a restrictive covenant, it is questionable whether the covenant could be recorded in the land register because, even though the Land Registration Act240 does contain a general provision on registering restrictions on ownership in article 35(2), this provision has not been generally interpreted to include any possible restriction, but only such that is enumerated by statute.241 The restriction in question is expressly provided in the OA, so it could be argued that it may be recorded to run with the land. However, other interpretations are possible, whereby the restriction could not be recorded, because neither the LRA nor the OOPRA contains any mention of the land registration entry of that type, beyond LRA art. 35(2). The case could be complicated if the theater building was protected as a cultural heritage site under the Cultural Heritage Protection and Preservation Act.242 In such case, the municipality, the county, and the Republic would all have statutory preemption rights, obligating the owner-seller to first offer the building to the municipality, the county, and the Republic, in that order.243 A violation of statutory preemption rights authorizes the option holders to have the sale judicially voided, no later than five years after the sale.244 Furthermore, the municipality could, in its privatization plan, instead of selling the building, issue a commercial concession to the theater corporation.245 It does not seem that this model would be available for the art organization under the varied fact pattern, because concessions are designed for commercial activity, and are thus issued against compensation.246

240

Land Registration Act (NN 63/2019). See e.g., conditional transfers under LRA art. 36(4)–(5). 242 Cultural Heritage Protection and Preservation Act (CHEPPA) (NN 69/1999, 151/2003, 157/2003, 100/2004, 87/2009, 88/2010, 61/2011, 25/2012, 136/2012, 157/2013, 152/2014, 98/2015, 44/2017, 90/2018). 243 See CHEPPA art. 37. 244 See CHEPPA art. 39. 245 See CHEPPA art. 43a. 246 See CHEPPA art. 43d and CA art. 57. 241

Property Meeting the Challenge of the Commons in Croatia

2.9

163

Environment

Diletta, Flavio, and Antonella became aware of the reality of climate change when their school teacher decided to work on reading materials that were circulated at the time of the 2015 Paris Agreement on Climate Change. Although just turned 18 years old, all the three of them took the information quite seriously and started to worry about the gloomy expectations they learnt about: dangerous rise in the global temperature, water scarcity, droughts, forest fires, possible displacement of populations, etc. After the scandal involving the Popcar Corporation, concerning the manipulation of computer system for the control of emission in cars, Diletta, Flavio, and Antonella are struck by the quite feeble sanctions inflicted to the car manufacturer—not only in their jurisdiction. For this reason, Diletta, Flavio, and Antonella decide to take action in the interest of future generations. They sue their government and the global corporation Popcar.

2.9.1 2.9.1.1

Analysis State Liability for Emissions Reduction

The fact pattern is not clear as to the cause of action against either the government or Popcar, and it seems they would be different as to both defendants. The claim against the government could be construed generally, as an Urgenda-type case, which would require mitigation action from the Republic in order to enhance, or rather meet the required duty of environmental protection in terms of gas emissions. The claim in the Urgenda case was that “the State acts unlawfully if it fails to reduce or have reduced the annual greenhouse gas emissions in the Netherlands by 40%, in any case at least 25%, compared to 1990, by the end of 2020”247 The crux of the dispute revolved around the fact “that it is currently very probable that within several decades dangerous climate change will occur with irreversible consequences for man and the environment.”248 The State acknowledged that this is a serious problem and that it is also necessary to avert this threat by mitigating greenhouse gas emissions, hence the “dispute between the Parties therefore does not concern the need for mitigation, but rather the pace, or the level, at which the State needs to start reducing greenhouse gas emissions.”249 The court found the State’s duty of care in terms of mitigation, and ordered the claimed reduction, after a brief discussion on the separation of powers.250

247 Urgenda Foundation v. The State of the Netherlands, C/09/456689/HA ZA 13-1396 (2015), available in English at: https://elaw.org/system/files/urgenda_0.pdf. 248 Id. para. 4.32. 249 Id. para. 4.32. 250 See id. paras. 4.94–4.102.

164

T. Josipović and H. Ernst

An Urgenda-type case under Croatian law would not be available. Under Dutch law, namely under Book 3, Section 303a of the Dutch Civil Code, “a foundation or association with full legal capacity may also bring an action to the court pertaining to the protection of general interests or the collective interests of other persons, in so far as the foundation or association represents these general or collective interests based on the objectives formulated in its by-laws.”251 A similar remedy exists under Croatian Civil Procedure Act article 502a. However, as noted earlier, this remedy is only available under authority of an express statutory provision,252 not by virtue of CivPA art. 502a itself. As there is no such statute, there would be no standing available to an Urgenda-type organization before Croatian courts. If such standing were available, the legal discussion involving principles of tort law (duty of care, damages etc.) would likely be similar under Croatian tort law. Furthermore, as mentioned earlier, EPA article 168(2) does provide for an NGO’s access to justice in terms of appealing or seeking judicial review of an administrative decision, or lack thereof. Under the facts presented, it would be difficult to construct a case such that it would involve the Republic as the party failing to reduce emissions beyond existing regulation. If such a case could be procedurally designed, the court could theoretically issue any appropriate order under EPA art. 170, including an Urgenda-type reduction order.

2.9.1.2

State Liability for Popcar Emissions Manipulation

The other type of claim would concern governmental inaction in the Popcar case. The availability of such claim would depend on the Republic’s ability to reach Popcar. Given that it is framed as a “global” corporation, the Republic’s authority over Popcar’s actions (manipulation of car computer system for the control of gas emissions) directly depends on the link between Popcar’s operations and Croatia, i.e. whether Popcar is headquartered in Croatian, whether it manufactures cars in Croatia, etc., as well as the action or lack thereof of the competent Croatian authorities. There is a vast regulation on compliance of vehicles with technical standards,253 and the breach of such compliance is sanctioned primarily via administrative and criminal law measures.

2.9.1.3

Popcar’s Liability

The claim against Popcar could be construed under a large number of headings, similar to those employed in various countries against Volkswagen AG in the

251

Id. para. 4.4. CivPA art. 502a(1). 253 See e.g., Regulation on Technical Standards for Vehicles in Road Traffic (NN 85/2016, 24/2017, 70/2019). 252

Property Meeting the Challenge of the Commons in Croatia

165

aftermath of the diesel emissions scandal, including class actions, individual civil law suits in contract or tort, consumer protection, and criminal liability. The facts presented, however, position the three teenagers as plaintiffs in a suit against Popcar. Remedies would differ depending on whether they were in effect Popcar car owners, or not. If they were owners of a Popcar affected vehicle, they could use civil litigation as a means of seeking compensation in contract or tort, which would most likely be successful. Such litigation would, however, be no legal remedy in terms of the pollution, with which the teenagers seem most concerned. The action under OA 1047, discussed above, would be applicable in that respect, with the limitations, also discussed above. Immediately effective measures would, however, be inspection orders under the Air Protection Act254 by application whereof Popcar vehicles could be banned from the market.255

Case Law • European Court of Human Rights – – – – – – – – – – – – – – – – – – – – – –

254 255

Bečvář and Bečvářová v. the Czech Republic (App. 58358/00) Bjedov v. Croatia (App. 42150/09), Blečić v. Croatia (App. 59532/00) Brežec v. Croatia (App. 7177/10) Cvijetić v. Croatia (App. 71549/01) Ćosić v. Croatia (App. 28261/06) D.P. v. United Kingdom (App. 11949/86). Gillow v. UK (App. 9063/80). Goshi v. Croatia (App. 32457/05) Hutten-Czapska v. Poland (App. 35014/97) J.P. v. France (App 26215/95). Lemo and oths. v. Croatia (App. 3925/10 et seq.) Mohylová v. the Czech Republic (App. 75115/01) Netolický and Netolická v. the Czech Republic (App. 55727/00), Orlić v. Croatia (App. 48833/07) Panikian v. Bulgaria (App 29583/96), Paulić v. Croatia (App. 3572/06) Pibernik v. Croatia (App. 75139/01) Pincová and Pinc v. the Czech Republic, (App. 36548/97) Statileo v. Croatia (App. 12027/10) Škrtić v. Croatia (App. 64982/12), Tijardović v. Croatia (App. 38906/13)

Air Protection Act (NN 127/2019). Air Protection Act art. 80(3).

166

T. Josipović and H. Ernst

– Velikovi and Others v. Bulgaria (App. 43278/98 et seq.) – Vrzić v. Croatia (App. 43777/13), – Zehetner v. Austria (App. 20082/02), • Constitutional Court of the Republic of Croatia: – – – – – – – – – – – – – – – –

U-II-1711/2002 (2007) U-III-1422/2006 (2012) U-III-2019/2006 (2009) U-III-46/2007 (2010) U-III-405/2008 (2012) U-III-530/2008 (2010) U-III-2071/2010 (2014) U-III-2073/2010 (2014) U-III-4088/2010 (2012) U-III-3736/2012 (2014) U-III-3774/2012 (2015) U-III-4775/2012 (2014) U-III-5197/2013 (2014) U-III-7534/2014 (2015) U-III-869/2015 (2014) U-III-3317/2015 (2015)

• Other Croatian courts – Gž-1085/10 ŽS (County Court) Dubrovnik (2010) – Gž856/16 ŽS (County Court) Zadar (2016) – Usoz-50/16 (High Administrative Court of the Republic of Croatia) (2016) • Other courts – Urgenda Foundation v. The State of the Netherlands, C/09/456689/HA ZA 13-1396 (2015), Rechtbank Den Haag (Administrative court of first instance in Den Haag); available in English at: https://elaw.org/system/files/urgenda_0. pdf

Legal Sources – Act on the Compensation for the Assets Seized During Yugoslav Communist Rule (NN 92/96, 39/99, 42/99, 92/99, 43/00, 131/00, 27/01, 34/01, 65/01, 118/01, 80/02, 81/02, 98/19) – Act on Independent Artists’ Rights and the Encouragement of Cultural and Artistic Creativity (NN 43/1996, 44/1996, 127/2000, 127/2000, 177/2004) (AIA). – Act on the Mandatory Health Insurance and Health Protection of Aliens in the Republic of Croatia (NN 80/13, 15/2018) (Aliens Health Protection Act).

Property Meeting the Challenge of the Commons in Croatia

167

– Act on Ratification of the Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters (NN MU 1/2007). – Agricultural Land Act (NN 9/2013, 48/2015) – Air Protection Act (NN 127/2019). – Aliens Act (NN 130/2011, 74/2013, 69/2017, 46/2018, 66/2019). – Amendments to the Enforcement Act (NN 73/2017). – Building Inspection Act (NN 153/2013, 115/2018) – Civil Procedure Act (Sl. list SFRJ 4/1977, 36/1977, 36/1980, 6/1980, 69/1982, 43/1982, 58/1984, 74/1987, 57/1989, 20/1990, 27/1990, 35/1991, NN 53/1991, 91/1992, 112/1999, 129/2000, 88/2001, 117/2003, 88/2005, 2/2007, 96/2008, 84/2008, 123/2008, 57/2011, 25/2013, 89/2014, 70/2019) (CivPA). – Concessions Act (NN 69/2017) (CA). – Constitution of the Republic of Croatia (NN 6/90, 135/97, 8/9, 113/00, 124/00, 28/01, 41/01, 55/01, 76/10) – Consumer Protection Act (NN 1/2014, 110/2015) (CPA). – Criminal Code (NN 125/2011, 144/2012, 56/2015, 61/2015, 101/2017, 118/2018, 126/2019). – Cultural Heritage Protection and Preservation Act (NN 69/1999, 151/2003, 157/2003, 100/2004, 87/2009, 88/2010, 61/2011, 25/2012, 136/2012, 157/2013, 152/2014, 98/2015, 44/2017, 90/2018) (CHEPPA). – Decree on the Lowest Base Price of Water Services and Types of Costs Covered by the Price of Water Service (NN 112/2010, 66/19). – Enforcement Act (NN 112/2012, 25/2013, 93/2014, 55/2016, 73/2017) (EA). – Environmental Protection Act (NN 80/2013, 153/2013, 78/2015, 12/2018, 118/2018) (EPA). – Expropriation and Compensation Act (NN 74/2014, 69/2017) – Final Bill of the Enforcement Act, November 22, 2019, available at https://www. sabor.hr/sites/default/files/uploads/sabor/2019-11-22/150102/PZE_676.pdf – Forests Act (NN 68/2018, 115/2018, 98/2019). – Free Legal Aid (NN 143/2013, 98/2019). – General Administrative Procedure Act (NN 47/09). – General and Technical Terms of Water Supply Service (Sl. gl. G. Zagreba 17/2013). – Health Protection Act (NN 100/2018, 125/2019) (HPA). – Hunting Act (NN 99/2018, 32/2019). – Institutions Act (NN 76/1993, 29/1997, 47/1999, 35/2008, 127/19). – Land Registration Act (NN 63/2019). – Maritime Domain and Ports Act (NN 158/2003, 100/2004, 141/2006, 38/2009, 123/2011, 56/2016, 98/2019) (MDPA). – Mining Act (NN 56/2013, 14/2014, 52/2018, 115/2018, 98/2019). – Municipal Services Act (NN 68/2018, 110/2018). – Nature Protection Act (NN 80/2013, 15/2018, 14/2019, 127/2019) (NPA). – Obligations Act (NN 35/2005, 41/2008, 125/2011, 78/2015, 29/2018) (OA).

168

T. Josipović and H. Ernst

– Ownership and Other Property Rights Act (NN 91/96, 68/98, 137/99, 22/00, 73/00, 114/01, 79/06, 141/06, 146/08. 38/09, 153/09, 143/12, 152/14) (OOPRA). – Railway Act (NN 32/19). – Referendum and Other Types of Personal Participation in Government, and Local, and Regional Self-Government (NN 33/1996, 92/2001, 44/2006, 58/2006, 69/2007, 38/2009, 100/2016, 73/2017) (Referendum Act). – Regulation on Technical Standards for Vehicles in Road Traffic (NN 85/2016, 24/2017, 70/2019). – Roads Act (NN 84/11, 18/13, 22/13, 54/13, 148/13, 92/14, 110/19). – Social Care Act (NN 157/2013, 152/2014, 99/2015, 52/2016, 16/2017, 130/2017, 98/2019) (SCA). – Tenancy Act (NN 91/1996, 48/1998, 66/1998, 22/2006, 69/2018). – Theaters Act (NN 71/2006, 121/2013, 26/2014, 98/2019) (TA). – Transformation of Socially Owned Enterprises (NN 19/91, 83/92, 94/93, 2/94, 9/ 95). – Waters Act (NN 66/2019) (WA). – Water Services Act (NN /2019)

Online Articles and Links – https://esavjetovanja.gov.hr. – https://pravosudje.gov.hr/istaknute-teme/besplatna-pravna-pomoc/ovlasteneudruge-i-pravne-klinike-za-pruzanje-primarne-pravne-pomoci/6190 – Večernji list (20.9.2013) Najskuplje gljive: Kazne za branje bez dozvole čak do 7000 kuna! https://www.vecernji.hr/zagreb/najskuplje-gljive-kazne-za-branjebez-dozvole-cak-do-7000-kuna-616417 – Index (15.7.2015) Živi zid u Varaždinu prosvjedovao zbog isključivanja vode dužnicima http://www.index.hr/Vijesti/clanak/zivi-zid-u-varazdinuprosvjedovao-zbog-iskljucivanja-vode-duznicima/830866.aspx

References Publications Belaj V (2011) Posebno stvarnopravno uređenje za šume i šumska zemljišta. In: Gavella N (ed) Stvarno pravo, vol 3. Narodne Novine, Zagreb Buyse A (2006) Strings attached: the concept of “home” in the case law of the European Court of Human Rights. Eur Hum Rights Law Rev 3:294–307 Buyse A (2011) Loss of the home during armed conflict: ECHR case law on destruction, eviction and denial of access. In: Fox O’Mahoney L, Sweeney JA (eds) The idea of home in law. Ashgate Publishing, London

Property Meeting the Challenge of the Commons in Croatia

169

Gavella N (2007) Stvarno pravo, vol 1. Narodne Novine, Zagreb Josipović T (2014) Property law. In: Josipović T (ed) Introduction to the law of Croatia. Alphen aan den Rijn Josipović T (2017) Građanskopravna zaštita od štetnih imisija. In: Barbić J (ed) Građanskopravna zaštita okoliša. Hrvatska akademija znanosti i umjetnosti, Zagreb Jug J (2011) Posebno stvarnopravno uređenje za vode i vodno dobro. In: Gavella N (ed) Stvarno pravo, vol 3. Narodne Novine, Zagreb Kontrec D (2016) Pravo na dom u praksi redovnih sudova u Republici Hrvatskoj (parnični postupak). In: Barbić J (ed) Pravo na dom. Hrvatska akademija znanosti i umjetnosti, Zagreb Maganić A (2016) Praksa Europskog suda za ljudska prava i pravo na dom. In: Barbić J (ed) Pravo na dom. Hrvatska akademija znanosti i umjetnosti, Zagreb Maganić A (2017) Procesnopravni aspekti građanskopravne zaštite okoliša. In: Barbić J (ed) Građanskopravna zaštita okoliša. Hrvatska akademija znanosti i umjetnosti, Zagreb Marković S (2016) Stajališta Ustavnog suda Republike Hrvatske o ustavnim i konvencijskim jamstvima zaštite prava na dom u smislu čl. 34. Ustava. In: Barbić J (ed) Pravo na dom. Hrvatska akademija znanosti i umjetnosti, Zagreb Mihelčić M, Marochini Zrinski M (2014) Koneksitet ostvarenja vindikacijskog zahtjeva na nekretnini i tzv. prava na poštovanje doma. Zbornik Pravnog fakulteta Sveučilišta u Rijeci 35(1):163–192 Nield S (2013) Article 8 respect for the home: a human property right? King’s Law J 24(2): 147–171. https://doi.org/10.5235/09615768.24.2.147 Nield S, Hopkins N (2013) Human rights and mortgage repossession: beyond property law using Article 8. Leg Stud 33(3):431–454. https://doi.org/10.1111/j.1748-121X.2012.00257.x Radionov N (2011) Posebno pravno uređenje za željezničku infrastrukturu. In: Gavella N (ed) Stvarno pravo, vol 3. Narodne Novine, Zagreb Sarvan D (2016) Ljudsko pravo na vodu. Novi informator, Zagreb

Property Meeting the Challenge of the Commons in Germany Johanna Croon-Gestefeld

Abstract The medieval German legal tradition recognized commons (although its correspondence to the contemporary notion of commons is debatable) through the concept of Allmende. The modern German legal tradition, however, lacks any concept encompassing all the dimensions of the commons. However, several of those dimensions are present in the legal system, connected by art. 14 of the Basic Law that guarantees private property while at the same time clarifying that private property “shall also serve the public good”. Examples of those elements are the notion of sustainability (anchored to the idea of intergenerational justice), the concepts of cultural heritage and natural heritage, as well as the concept of common usage (for instance the right for everybody to access public roads or “to enter the open landscape . . . for purposes of recreation” according to federal legislation). The commons are a topic of debate among German legal scholars, although not a very prominent one. In particular, the commons are featured in discussions about sustainability and the sharing economy.

1 Questionnaire: Part I 1.1

Legal Categories Corresponding to the Notion of the Commons

German law does not have an established legal concept capturing all the elements that make up a definition of the commons. German property law centres on the concept of private ownership. The Basic Law, the German Constitution, guarantees protection of private property as a fundamental right (Art. 14(1) Basic Law).

I would like to thank Dr. Cornelius Kniepert for his research support. J. Croon-Gestefeld (✉) Leuphana University, Lueneburg, Germany e-mail: [email protected] © The Author(s), under exclusive license to Springer Nature Switzerland AG 2023 U. Mattei et al. (eds.), Property Meeting the Challenge of the Commons, Ius Comparatum - Global Studies in Comparative Law 59, https://doi.org/10.1007/978-3-031-25218-1_5

171

172

J. Croon-Gestefeld

Statutory law vests in the owner, ‘to the extent that a statute or third-party rights do not conflict,’ the power to deal with his property ‘at his discretion and exclude others from every influence’ (§ 903 German Civil Code, Bürgerliches Gesetzbuch, hereafter “BGB”). Within the legal framework, natural as well as legal persons can own property and rely on the rights just mentioned. Since the state—or its subdivision such as a Land or municipality—has the status of a legal person it can also hold ‘private’ property. The state does not enjoy constitutional protection of its property, as the constitution cannot entitle and put obligation on the state at the same time,1 but statutory private law applies in relation to its property. However, focusing exclusively on property owners’ entitlements would cover the situation insufficiently. Whilst Article 14(1) Basic Law guarantees property as an individual right, it also states that its ‘content and limits shall be defined by the laws.’ Thus, the configuration of property (meaning the kind and extent of power) an owner has over a thing depends on the legal framework in place. In addition, Article 14(2) Basic Law explicitly lays down social obligations of the owner, holding that ‘property entails obligations. Its use shall also serve the public good’. Therefore, private owners are never entirely free to utilize their property as they please. They are bound by laws that seek to balance the owner’s interests with those of third parties, such as neighbours or the general public.

1.2

A German Legal Concept of Commons?

As shown above, a concept of the commons meeting all the criteria set out by the introduction to the questionnaire is foreign to German law in force today. However, there exist legal concepts that cover parts of the notion captured under the broad term commons. To begin with, the Basic Law contains a provision on the national objective of promoting sustainability. Article 20a Basic Law states that ‘[m]indful also of its responsibility toward future generations, the state shall protect the natural foundations of life and animals by legislation and, in accordance with law and justice, by executive and judicial action, all within the framework of the constitutional order’. In addition, German law knows the concepts of cultural heritage (Kulturerbe) and natural heritage (Naturerbe) as mentioned in the Convention Concerning the Protection of the World Cultural and Natural Heritage (UNESCOConvention).2 Furthermore, some conceptions in European law are vaguely similar to the conception of commons in the introduction. Through the mechanisms of direct effect and supremacy of EU law, 3 as well as by the implementation into national

1

BVerfGE 15, 256, 262; 21, 362, 369 ff.; 62, 354, 369; 70, 1, 16. The UNESCO-Convention entered into force in Germany on 23 November 1976, BGBl.1977 II, 213. 3 Direct effect – Case 26/62 Van Gen den Loos [1963] ECLI:EU:C:1963:1; supremacy – Case 6/64 Costa v ENEL [1964] ECLI:EU:C:1964:66. 2

Property Meeting the Challenge of the Commons in Germany

173

law, they became part of German law. The Water Framework Directive4 is an example. One of its purposes is to promote ‘sustainable water use based on a longterm protection of available water resources’ (Art. 1 lit. b Dir. 2000/60/EC). § 1 Federal Water Act (Wasserhaushaltsgesetz, hereafter “WHG”) transposes the requirement into German law. Moreover, a concept of common usage (Gemeingebrauch) exists in German public law. If a thing is dedicated to common usage, the general public is allowed to utilize it according to its purpose without having to obtain a special permit.5 Statutory law governs whether a thing is intended for common usage. For example, § 7(1) Federal Highway Act (Bundesfernstraßengesetz) stipulates that public roads are accessible to all; § 25(1) WHG puts above-ground water into (limited) common usage;6 and § 59(1) Federal Act on Nature Conservation and Landscape Management (Bundesnaturschutzgesetz, hereafter “BNatSchG”) grants all persons permission ‘to enter the open landscape . . . for purposes of recreation’. How the concept of common usage is applied in actual cases is explained in greater detail infra (Sects. 2.4 and 2.6). Turning to past conceptions of commons, a historical investigation yields the result that ‘commons’ have existed in Germany in the form of Allmende. Of course, a caveat should be added that the modern concept of commons is not necessarily the same as the dated concept of commons, and that the legal environment under which Allmende thrived was completely different from contemporary conditions.7 Allmende denotes pastures, forests, roads, and water streams, which were not in the hands of a private owner but could be used by all members of a community.8 They came into existence in the late Middle Ages, and were scattered over the area now constituting Germany. Characteristic of Allmende was the extensive manner of their land use, meaning that many people could let their flocks graze on the pastures or chop wood in the forests without entirely consuming the resources offered. Since Allmende were not open to everybody, but only to members of a specific community, and since grazing times as well as forest stand had to be organized, their utilization became regulated and sometimes even a judiciary was established. With a few exceptions, Allmende have disappeared due to a variety of factors:9 Agricultural and forestry developments made it possible to use pastures and forests more intensively, neighbouring noblemen or gentleman farmers incorporated pieces of land in their real estate, and as communities developed into municipalities (with own legal

4

Dir. 2000/60/EC of the European Parliament and of the Council of 23 October 2000 establishing a framework for Community action in the field of water policy, OJ L 327/1. 5 BVerwGE 100, 70, 74; 116, 67, 68. 6 Papier and Durner (2015). 7 On the limited validity of historic comparisons with respect to the concept of Allmende, see Zückert (2015), p. 163. 8 Zückert (2005), col. 211. 9 Brakensiek (2000), pp. 9, 12; Pass (2000), p. 71; Zückert (2003), p. 207 ff.

174

J. Croon-Gestefeld

personality) ownership of Allmende land was often transferred to the municipality.10 Within today’s legal framework, Allmende land is best conceptualized as private property of an agricultural cooperative.

1.3

Commons as a Topic of Legal Academic Debate

The topic of commons is discussed in the academic debate in Germany, even if not prominently. Particularly absent, however, is any debate on reconceptualising the property order or introducing commons as a collective kind of property. Commons appear in discussions in different contexts. They are a feature in debates on sustainability and conservation of Earth’s resources for future generations. In these deliberations on ‘global commons’, participants focus on the non-exclusionary element of commons, using the concept to depict the uniqueness of water, clean air, or uncultivated soil. Given the global dimension of the topic and the multiple connections between environmental protection and international law, the discussions are not limited to the German system. Rather, German scholars contribute to the international debate, at times centring on the situation in Germany.11 The topic of commons also surfaces in legal evaluations of occurrences in the sharing economy, especially in the realm of copyright law. Wielsch has analysed copyright law from the perspective of systems theory12 and proposed that authors’ rights should be thought of less in terms of individual subjective rights and more in terms of their social function.13 In addition, the terms ‘creative commons’ or ‘science commons’—in English, without translation—have found their way into the debate.14 The ‘creative commons’-movement has its origins in the United States, and deals with the question of how works of art or science can be made available to the general public without infringing authors’ copyrights, given the new technological possibilities of sharing data.15 Since German authors and media consumers participate in the exchange of data over the internet et cetera, German copyright lawyers also discuss the ideas of ‘creative commons’ or ‘science commons’. This leads to a more general 10

BFHR 56, 396 with reference to Gierke (1895), p. 576 ff. How much influence each of these causes had on the disappearance of Allmende is a subject of debate among historians, see Brakensiek (2000), col. 214 ff. with further references. 11 Halfmeier (2016), pp. 717, 754; Bosselmann (2015). The latter underwent legal training in Germany and is now Professor at the University of Auckland (NZ). 12 See Luhmann (1984, 1993). 13 Wielsch (2008), p. 47. 14 E.g. Dreier (2005), p. 283; Dreier and Schulze (2022) Einl. para. 25; Wagner (2017), p. 216. 15 See Wagner (2017), pp. 216, 217. Under creative commons licensing, ‘the licensor grants the licensee a worldwide, non-exclusive, permanent and irrevocable licence to multiply, show, adapt and disperse a work. The licensee has to name the author and inform about the licensing conditions each time he or she shows or disperses the protected work’ (Wiebe 2019, § 31 UrhG para. 22).

Property Meeting the Challenge of the Commons in Germany

175

observation: legal scholars tend to take up the notion of commons when they gain momentum in neighbouring sciences such as sociology16 or economics.17 In addition, there is quite a lively debate on the protection and administration of ‘collective goods’ or ‘public goods’ (Gemeinschaftsgüter).18 In interdisciplinary research, legal academics, together with economists and psychologists, explore whether the market or the state offers a better institutional framework for administrating these goods. Leading in this type of research are the works by the Max Planck Institute for Research on Collective Goods.19

1.4

Public Property and Its Alienability

It seems imperative to give an overview of the German public property regime. As stated supra (Sect. 1.1), the state, or state entities, can hold private property. In addition, the German legal system knows ‘public property’ (öffentliches Eigentum). However, the subtleties of the conception are rather peculiar. The state can establish ‘solid’ state ownership under public law, but has seldom availed itself of this option. Merely the Road Law of Hamburg (Hamburger Wegegesetz), the Water Law of Hamburg (Hamburger Wassergesetz), and the Water Law of Baden-Württemberg (Baden-Württembergisches Wassergesetz) subject certain roads, flood control installations, or riverbeds to state ownership.20 Furthermore, the term ‘public property’ is understood in a broader sense to denote the state’s exercise of control over things. The conventional method that the state uses for this purpose is to prescribe an easement on private property by an act of state.21 For example, the state has owner-like powers over public highways, while individuals whose plots the highways were built upon remain the private owners of those plots.

16

For an overview, see Helfrich and Heinrich-Böll-Stiftung (2014); Helfrich et al. (2015). See, e.g., Ostrom (1999). 18 For further reading, see Engel (1997); Zacher (1993a), p. 107. Zacher’s conception of collective goods is embedded in an understanding of law that centres on the role of the individual within a community; Zacher (1993b), p. 209 (esp. 227); Zacher (1996), p. 413; Zacher (2008), p. 281. 19 Collective goods/public goods are not the same as commons. Pursuant to a differentiation between private (consumption) goods and collective (consumption) goods coined by Samuelson (1954), https://bit.ly/3mKY0ME, collective (consumption) goods are non-excludable, as well as non-rivalrous. That is to say that ‘each individual’s consumption of such a good leads to no subtraction from any other individual’s consumption of that good’ (at 387). In contrast, commons are said to be non-excludable, rivalrous goods, meaning that each individual’s consumption reduces the availability of the good for all other individuals. Despite this difference, collective goods are mentioned in this context because the estimation whether a good is rivalrous or non-rivalrous can be difficult to assess, and because certain things such as clean air are sometimes referred to as collective goods and sometimes as commons. 20 See Papier and Durner (2015). 21 BGHZ 9, 373, 380; 19, 85, 90; 21, 319, 327; 48, 98, 104. In the decisions, the German Federal Court does not use the term ‘easement’ but speaks more generally of public rights to usage. 17

176

J. Croon-Gestefeld

That said, the state owns things that are absolutely not alienable. The obligation not to alienate certain parts of public property is written in the German constitution. The recently-altered Article 90(1) Basic Law states that the Federation remains owner of motorways and highways, and that the property of these motorways and highways is inalienable.22 It continues to stipulate that the Federation may attend to the task of administering the motorways with help of an enterprise organized under private law. The enterprise then belongs to the Federation, and its property is inalienable as well (compare Art. 90(2) Basic Law). Hence, constitutional safeguards have been put in place that prohibit far-reaching privatization of the German road system. Furthermore, Article 87e(3) Basic Law regulates that ‘[f]ederal railways shall be operated as enterprises under private law’. It continues, ‘the Federation shall retain a majority of the shares’ of such an enterprise, if its business activity is the maintenance of the railway infrastructure. Consequently, complete privatization of the railway system is constitutionally precluded as well.23

1.5

Remedies Against Privatization of the Commons

A few words on the understanding of ‘privatization’ within the German legal system are in order. The term ‘privatization’ denotes different degrees of influence over the supply of public goods by the state. There is ‘formal privatization’, in which the state can use organizational types of private law, 100% controlled by the state, to provide public services.24 Jurisprudence employs the term ‘functional privatization’ to label the delegation of public services to private suppliers in such a way that control and governance remain with the public authorities.25 On the other end of the spectrum, we find ‘material privatization’ describing the unlimited delegation of public services or transferal of public property to legal entities under private law.26 When German courts deal with the issue of privatization—be it in its formal, functional, or material form—they are usually not confronted with direct challenges against privatization. Rather, they hear complaints of unsuccessful tenderers who argue that they should have been chosen over their competitor.27 However, the Federal Administrative Court addressed a direct challenge against privatization in

22 Gesetz zur Änderung des Grundgesetzes (Art. 90, 91, 104b, 104c, 107, 108, 109a, 114, 125c, 143d, 143e, 143f, 143g) of 13 July 2017, BGBl. 2017 I, 2347. 23 See Remmert (2022), Art. 87e para. 8. 24 See Knauff (2016), para. 11. 25 Knauff (2016), para. 13. 26 Knauff (2016), para. 12. 27 See for ‘replacing competition complaint’ BVerfG DVBl 2004, 431 ff.; for ‘negative competition complaint’ BVerfG NJW 2005, 273, 274 f.; BVerfG NVwZ 2009, 977 ff. and for ‘positive competition complaint’ BVerfGE 82, 209, 229.

Property Meeting the Challenge of the Commons in Germany

177

one of its judgments (BVerwG, 27.05.2009 – 8 C 10/08).28 A municipality had privatized the management of a Christmas market. A merchant, who had formerly been selling his goods at the market and had subsequently been denied participation by the private management enterprise, sued the municipality, arguing that it was illegal to delegate the management to a private enterprise. The Federal Administrative Court agreed with the plaintiff, and held that the complete privatization of the Christmas market constituted a violation of the guarantee that certain municipal affairs had to be self-governed by the municipality (Art. 28(2) Sentence 1 Basic Law). It stated that the organization of the market was part of public services, and that the municipality had failed to retain possibilities to influence the private organizers. The case, which was subject to heavy criticism,29 illustrates two aspects. First, for a plaintiff to have locus standi, she must show that the privatization potentially infringes upon her individual rights (compare § 42(2) Code of Administrative Court Procedure, Verwaltungsgerichtsordnung, hereafter “VwGO”). This may be the case if her former legal relation with the public authorities is impaired by the privatization. With help of a declaratory action under public law (Feststellungsklage, § 43 VwGO), she can then challenge the privatization. Second, in the example, the Federal Administrative Court criticised the ‘material privatization’ of the Christmas market, or more precisely the fact that the municipality had retained no influence whatsoever over the private organizer. However, had the municipality retained a modicum of control over the privately organized market management, the Court would have most likely accepted the privatization. Apart from the presented option to bring a declaratory action before an administrative court, there is an additional legal means to challenge privatizations at the Länder level. Individuals can instigate proceedings to hold a referendum on the repurchase of previously-privatized state property. For example, a citizens’ initiative in the Land Hamburg successfully demanded that the Land buy back the power supply, gas, and district heating system.30

1.6

Remedies Against Nationalization of the Commons

German law provides individuals with means to challenge nationalizations. Before entering into these remedies, it is useful to explain the legal framework concerning nationalizations. Bearing in mind that ‘nationalization of commons’ is not a term commonly used in the German jurisdiction, the German constitution mentions two distinct legal concepts that may be connected to nationalization, namely socialization (Sozialisierung) and expropriation (Enteignung). Socialization aims at a general

28

BVerwG DVBl 2009, 1382. Kniesel (2013), p. 270; Schoch (2009), p. 1533; Winkler (2009), p. 1169. 30 For further information, see https://bit.ly/3BM9EMx. 29

178

J. Croon-Gestefeld

transformation of the property system.31 In contrast, expropriation concerns concrete cases in which individual owners lose property status in favour of the state, or in favour of private persons, if the proceeding indirectly increases the public good.32 Article 15 Basic Law states that ‘[l]and, natural resources and means of production may for the purpose of socialization be transferred to public ownership or other forms of public enterprise’ in return for compensation. Thus, constitutional law allows for the socialization of goods that may be—for the purposes of this analysis— called commons. So far, however, the state has not made use of the power vested in it by Article 15 Basic Law.33 The provision is valid, but carries no weight in descriptions of the law applied. Further elaboration is therefore unnecessary. Article 14(3) Basic Law deals with expropriations. Pursuant to Article 14(3) Sentence 1 Basic Law, ‘[e]xpropriation shall only be permissible for the public good’. In addition, the state may order expropriation only ‘by or pursuant to a law’ (Art. 14(3) Sentence 2 Basic Law), and must provide compensation (Art. 14(3) Sentence 2 Basic Law). Expropriations rarely take place in Germany, because they are measured against the standard of proportionality.34 Few reasons can justify the severe infringement of property that goes along with expropriation. However, the state has other ‘expropriative measures’ to its avail. It can define owners’ rights and duties in a general and abstract manner, and thereby shape their property position (Inhalts- und Schrankenbestimmung). For example, the laws allowing for a building to be put on a preservation order limit the rights of property owners to renovate their buildings as they please. And the Federal Act on Nature Conservation and Landscape Management limits real estate owners’ powers to exclude the public from their premises (compare § 59 BNatSchG, see supra Sect. 1.2). Since the Basic Law stipulates that ‘property entails obligations’ (Art. 14(2) Sentence 1 Basic Law), owners must accept lawful changes to their legal status, which stem from such Inhalts- und Schrankenbestimmungen, without compensation. Only if an Inhaltsund Schrankenbestimmung restricts enjoyment of their property position to an extreme extent are they entitled to compensation.35 As far as expropriation is concerned, the individual owner affected thereby has legal means to her avail to challenge it. If the expropriation is based on an administrative order pursuant to a law (compare Art. 14(3) Sentence 2 Basic Law), she can

31

Depenheuer (2018), Art. 15 para. 11. See BVerfGE 70, 191, 199 ff.; 72, 66, 76; 101, 239, 259; 104, 1, 9 f.; 112, 93, 109; 114, 1, 59; 115, 97, 112. 33 Depenheuer (2018), Art. 15 para. 3. 34 BVerfGE 24, 367, 404 f.; 45, 297, 321. 35 For completeness’ sake, German law further knows enteignenden Eingriff and enteignungsgleichen Eingriff. Enteignender Eingriff describes a situation where the owner is entitled to compensation because she experiences unbearable, atypical and unexpected proprietary side-effects of an otherwise lawful administrative act (see BGHZ 57, 359, 366; 91, 20). In the event of an enteignungsgleicher Eingriff, an unlawful act of the state infringes the owner’s property position. The owner may then claim compensation if her property was particularly severely affected by the act (see BGHZ 117, 240, 252; Papier and Shirvani 2022, para. 37). 32

Property Meeting the Challenge of the Commons in Germany

179

lodge an objection against the expropriation order with the competent authority (§§ 68 et seq. VwGO). Should the authority not rescind the order, the owner can file an action for voidance before an administrative court (Anfechtungsklage, § 42(1) Alt. 1 VwGO). In the debate on expropriation, it had been disputed for a long time if an owner who considered the expropriation order to be illegal had the option nevertheless to accept the expropriation, and contend successfully for higher compensation. In a landmark decision, the Federal Constitutional Court ruled that such an approach to expropriation was contrary to constitutional law (Naßauskiesung – BVerfG, 15 July 1981, BVerfGE 58, 300 et seq.). Consequently, owners must first challenge the expropriation order before they can take legal action to at least claim higher compensation for the objected expropriation. For legal disputes merely concerning the compensatory amount, the owner can bring a suit before a civil court (Art. 14(3) Sentence 4 Basic Law). In the less common case that the expropriation is based directly on a law (meaning that no further administrative action is necessary), challenging the expropriation is more difficult for the affected owner. The owner can challenge actual acts, which the administration performs in the expropriation, before an administrative court (allgemeine Leistungsklage). However, the court has no competence to declare the expropriation law void because this power is reserved to the Federal Constitutional Court. Should the court consider the law to be illegal, it has the possibility or—if it is the court of last instance in the case—the obligation to submit to the Federal Constitutional Court a reference for a preliminary ruling (Art. 100(1) Basic Law). Subsequently, the Federal Constitutional Court may declare the expropriation law void (§ 31(2) Act on the Federal Constitutional Court, Bundesverfassungsgerichtsgesetz). The same legal proceedings allow for a challenge of Inhalts- und Schrankenbestimmungen. Since they also have the character of (abstract and general) norms, they likewise can only be challenged indirectly, and assisted by the preliminary reference procedure.

1.7

Private Property and Other Constitutional Positions

Property is considered a fundamental right in Germany. Its protection is enshrined in the Basic Law. Article 14(1) Sentence 1 Basic Law states: ‘Property and the right of inheritance shall be guaranteed’. Given its fundamental status, property is protected in multiple ways by the constitution. First, an individual is protected against state measures negatively impacting her property (Abwehrrecht). Second, the constitution ensures that the concept of property may not be changed in ways that completely devaluate the position of private owners (Einrichtungsgarantie). Third, the constitutional protection is effective in relations between private parties. Though the Basic Law only places obligations on public entities, private parties are indirectly bound by the constitution (mittelbare Drittwirkung). German courts have to take the Basic Law’s fundamental rights into account when judging in private law disputes (Lüth – BVerfG, 15 January 1958, BVerfGE 7, 198 et seq.). Consequently, private parties

180

J. Croon-Gestefeld

also have to abide by the constitutional standards because their actions can be subject to judicial scrutiny, and must be in accordance with the law. In the event that the constitutionally-protected position of an owner conflicts with constitutionally-protected positions of other individuals, these positions are reconciled through the balancing of the competing rights. For example, if an industrial plant emits toxic fumes, the owner’s right to utilize property (Art. 14(1) Basic Law) is balanced against the neighbours’ right to health and well-being (Art. 2(2) Basic Law). As the example illustrates, property is not an absolute right, neither are the other fundamental rights under the Basic Law except for human dignity guaranteed by Article 1(1) Basic Law. Thus, in the abstract, property does not take priority over and is not subordinate to other fundamental rights. Nonetheless, in a concrete case, an owner’s position may be considered more or less important than that of another individual relying on her right to life, health, work, et cetera. The situation ought to be assessed differently when property is in conflict with human dignity. As ‘[h]uman dignity shall be inviolable’ (Art. 1(1) Sentence 1 Basic Law), it cannot be balanced with other fundamental rights, including property.36 In the event of such a conflict, the position of the individual justified in relying on human dignity always takes precedence.

1.8

Limits to the Exclusionary Power of Private Property in Land

It is important to stress that the power of the owner to decide who is allowed to stay on her premises enjoys great protection under German law. The owner’s power of exclusion (see § 903 BGB) is the standard; each limitation of the standard needs to be justified. Regardless, there are exceptions to the rule, both in private and in public law. An owner must tolerate other people on her land in case of necessity. Pursuant to § 904 Sentence 1 BGB, ‘[t]he owner of a thing [annotation: this includes land] is not entitled to prohibit the influence of another person on the thing if the influence is necessary to ward off a present danger and the imminent damage is disproportionately great in relation to the damage suffered by the owner as a result of the influence’. Similarly, § 1004(2) BGB states that an owner’s claim for removal from her property or injunction against violations of her property ‘is excluded if the owner is obliged to tolerate the interference’. For example, should there be a flood causing people to swarm to the highest place in the area, their ‘trespass’ on that plot is justified. Another justification for a private non-owner to access the land is if the piece of land has been dedicated to common usage (Gemeingebrauch, see supra Sect. 1.2) under public law. In that case, the non-owner need not rely upon a special

36

BVerfGE 75, 369, 380; 93, 266, 293.

Property Meeting the Challenge of the Commons in Germany

181

permission by the owner or a public body in order to stay on the property. Examples of territories under common usage are public highways, public waterways, open landscapes, forest areas, and beach sections. A particular case of necessity—the right of way of necessity—is governed by § 917 BGB. It stipulates that the owner must, if the neighbour’s ‘plot of land lacks the connection to a public road necessary for the due use’, tolerate the use of land by a neighbour until the necessary connection has been created. In return, the owner can claim compensation from the neighbouring real estate owner benefitting from the right of way. An additional right of way of necessity, which may limit the power of the owner to exclude other individuals from the premises, is the right of way of necessity with respect to forest estates (e.g. § 28 Forest Law Baden-Württemberg, § 15 Forest Law Saarland, § 12(2) Forest Law Schleswig-Holstein).

2 Questionnaire: Part II While part A of the questionnaire dealt with the general outline of national property regimes, part B turns to specific cases, considering how they would be assessed in the different national jurisdictions. The intention behind the ‘factual approach’37 is to have respondents reflect on the circumstances of a case, and think beyond the concepts that they would usually associate with the object of study in their judicial jargon.38

2.1

Housing

John, Orri, Sekela and Satoshi, desperate to find a home at an affordable cost, together with their families (including several children) inhabit homes in a development project, suspended due to delayed authorizations. The four friends and their families work on both the buildings and the land to enhance their living conditions (for instance, by painting the walls and adding a little garden). After a couple of months, the legal manager of the land discovers the four families and attempts to remove them. The families refuse to leave and the manager brings a claim against them. The company, which owns the land and employs the legal manager, can bring a claim against John, Orri, Sekela, Satoshi, and their families to clear the land. In the

37

See Sacco (1991), p. 29. Id. at 28. This technique of informing about legal systems for comparison has been used by the Common Core Approach to European Private Law. For further information on the approach, see Bussani and Mattei (1997). 38

182

J. Croon-Gestefeld

field of property law, two potential bases for the claim stand out:39 First, the company may rely on § 1004 BGB. Pursuant to the norm, an owner can demand to stop the interference with her property by anyone, if she is not obliged to tolerate the interference. Second, should the exclusion from the property be comprehensive, meaning complete retention of possession, the company may rest its claim upon § 985 BGB. According to § 985 BGB, the owner may require the possessor to return the thing, unless the possessor has a right to possession (compare § 986 BGB).40 From the facts of the case, it is evident that the company is the owner of the land, and that John, Orri, Sekela, Satoshi, and their families are its possessors. The contentious point is whether the former must tolerate the interference, or if the latter have a right to possession. I interpret the circumstances mentioned in the example to the effect that there is no legally-accepted justification for the families’ interference with the property of the company. The fact that the development project has been suspended, and the homes were not being utilized at the time of their moving in does not qualify as justification under German law in its present state. John, Orri, Sekela, Satoshi, and their families must find alternative housing. Should they be unable to afford rent on the open market, they could apply for a housing subsidy granted by the state.41 Should they encounter other difficulties in the apartment search, and run the risk of becoming homeless, they could turn to public agencies for help. These agencies offer programmes that shelter people in public facilities, or in private hotels or guesthouses paid for by the state. At times of particularly-low supply of affordable housing, the state can take additional steps to allocate housing. For example, after World War II, it passed the Housing Management Law (Wohnraumbewirtschaftungsgesetz) to assign vacant apartments to people in need. And when a large number of refugees entered Germany in 2015, the Land Hamburg passed a law that allowed for the seizure of private estates in return for compensation in case additional housing should become necessary.42 The Hamburg law is no longer in force because it contained a sunset clause that went into effect at the end of March 2017.43 The case at hand mentions additional circumstances that deserve further inspection: it is stated that John, Orri, Sekela, Satoshi, and their families have made improvements to the estate during their stay. The question arises of how much these ameliorations have to be taken into account when it comes to the claim of

39

The company may also rely on its rights as a possessor in order to substantiate its claim. Pursuant to § 861 BGB, a former possessor has a right to have a current possessor restore the lawful state if the current possessor has gained possession of the thing by unlawful interference, viz. against the will of the possessor. Such a claim to retake unlawfully-gained possession may be excluded if the deprivation or interference of possession is permitted by law (compare § 858(1) BGB). In addition, the company may bring an unjust enrichment claim against the families, comp. § 812(1) Sentence 1 Alt. 1 BGB. 40 Thole (2019) § 986 para. 1 et seq. 41 The Housing Benefit Act (Wohngeldgesetz) governs such situations. 42 Gesetz zur Flüchtlingsunterbringung in Einrichtungen, HmbGBl. 2015 I, 245. 43 § 3(1) Gesetz zur Flüchtlingsunterbringung in Einrichtungen.

Property Meeting the Challenge of the Commons in Germany

183

eviction. German property law addresses this arrangement. Under certain conditions, the possessor may claim reimbursement for outlays on the thing under her control (§§ 994 et seq. BGB). As long as the possessor has not returned the thing to the lawful owner, she has a right to retention until reimbursement (compare § 1000 BGB). German law differentiates between kinds of possessors and types of outlays when it comes to reimbursability of the latter. The strongest position for reimbursement is held by a possessor who did not know about her wrongful possession and acted in good faith when making necessary improvements to the thing. The weakest position is held by a possessor who ‘obtained the thing by an intentionally committed tort’ (§ 1000 BGB) or made only useful (not necessary) improvements to the thing. As far as John, Orri, Sekela, Satoshi, and their families are concerned, first should be noted that they knew or should have known about the illegality of their stay on the estate. Therefore, German law does not consider them particularly worthy of protection. In addition, the examples of improvements given were the painting of walls and the laying out of a little garden. These are outlays which under German law would not be considered as necessary, entitling to compensation (compare § 994 BGB), but as merely useful improvements (compare § 996 BGB). Thus, the owning company does not have to reimburse John, Orri, Sekela, Satoshi, and their families for these improvements imposed upon its property. On the procedural side, the company owning the development needs to bring a claim of eviction against John, Orri, Sekela, Satoshi, and their families. To protect inhabitants against surprising or unforeseen eviction orders, the title obtained by the court may only be enforced against those individuals named in the eviction order (compare § 750 ZPO).44 The law grants further protection to unlawful residents, as an injunction that would force the inhabitants immediately to leave the estate is granted only in extreme cases (compare § 940a ZPO). Ultimately, John, Orri, Sekela, Satoshi, and their families do not enjoy protection against injunction because they have moved onto the estate by an act of unlawful interference.

2.2

Health Care

Together with other people from her neighbourhood, Emanuela has organized a volunteer non-profit medical clinic in what appeared to be an abandoned building offering free services to irregular migrants who have no health insurance. Soon after, Syntech Corporation, the owner of the building, realizing that the market value of the building has increased since they acquired it, decides to sell it at a profit. Syntech would like Emanuela and her volunteers out of the building within a few days in order to sell it, and initiates an eviction action. Many people in the area are upset by this news. Emanuela defends.

44

See Heßler (2020), ZPO § 750 para. 51.

184

J. Croon-Gestefeld

The answer to this question is similar to the one with respect to question 2.1. As the owner of the estate, Syntech has a claim against Emanuela and her fellow volunteers to vacate the building (§ 985 BGB or § 1004 BGB). Emanuela and her fellow volunteers have had no right to take possession of the building. They neither signed a contract with the owner Syntech that would have allowed them to occupy the building (compare § 986 BGB) nor does the law provide justification for the interference with Syntech’s property. Two aspects that distinguish this case from case 2.1 require a more detailed analysis: namely, the medical character of the institution and the impression of an abandoned estate. First, the fact that Emanuela and the other volunteer workers use the premises to run a non-profit medical clinic offers no valid justification for the seizure of possession of the building. The necessity justification, which holds that an owner has to tolerate the influence of others on her property ‘if the influence is necessary to ward off a present danger and the imminent damage is disproportionately great in relation to the damage suffered’ (§904 BGB), does not apply here. It is my understanding of the facts that Emanuela and the other volunteers can find alternative means of accommodation on the open market. Thus, they are obliged to take the steps necessary to find a location for rent or to buy real estate. In this context, it should be mentioned that installing a clinic on the estate might also violate public zoning law. German law regulates where medical institutions may be operated. For example, if a development plan designates an area to be used almost exclusively for habitation, medical institutions such as clinics may only be run in the area by way of exception (compare § 3 Federal Land Utilization Ordinance, Verordnung über die bauliche Nutzung der Grundstücke). Consequently, opening a clinic on the estate would also be illegal from a public law point of view, if the clinic were situated in a housing area and installed without administrative permission. Second, should the apparent abandonment of the building give cause to a different assessment in this case than in question 2.1? The answer is no. Under German law, a substantial period of time needs to pass before the position of a real estate owner who does not actively utilize her property is devalued. Only after a ‘plot of land has been in the proprietary possession of another for thirty years’ may the owner be excluded from her property (§ 927 BGB). What is more, a public notice procedure has to take place for the exclusion.45 A real estate owner cannot merely ‘abandon’ her property either. Pursuant to § 928 BGB, ‘[t]he ownership of a plot of land may be relinquished by the owner declaring the waiver to the Land Registry and the waiver being registered in the Land Register’. Accordingly, by not using the building for some time, Syntech has not waived its property rights in a legallyrelevant way.

In addition, ‘[w]here the owner is registered in the Land Register, the public notice procedure is admissible only if he is dead or missing and a registration in the Land Register that required the approval of the owner has not been made for thirty years’ (§ 927(1) Sentence 3 BGB). 45

Property Meeting the Challenge of the Commons in Germany

2.3

185

Food

Marta, Mattias, and Madison, together with their families and neighbours, cultivate a communal garden on a vacant plot of land as a food source. Max Corporation, the owner of the plot of land, discovers the three families and tells them to leave. Max Corporation brings a claim against the three families for their removal and the removal of the food grown by the families on its land. In my answer to this question 2.3, I refer to the answer given to question 2.1. Marta, Mattias, Madison, and their families have no right to stay on the plot of land, and Max Corporation will be successful in bringing an eviction order against them. As far as the communal garden is concerned, the garden is an improvement to the plot of land. It therefore needs to be considered if the planting of the garden is a ‘necessary’ or merely a ‘useful’ outlay, which Marta, Mattias, Madison, and their families can claim compensation for (compare §§ 994 et seq. BGB). Given that they knew or should have known about the illegality of their stay on the plot of land, that the cultivation of the garden was not necessary to maintain the plot of land, and that the owner of the land had no use for the garden, the male-fide possessors may not claim compensation. This leaves open to assessment what is supposed to happen to the produce of the garden. In this regard, it is useful to differentiate between the produce still being connected to the soil, and that already separated from the soil. The produce still in the ground belongs to the property of the owner, Max Corporation. Pursuant to § 94(1) BGB, ‘[s]eed becomes an essential part of the plot of land when it is sown, and a plant when it is planted’. Furthermore, § 93 BGB stipulates that essential parts, that is ‘[p]arts of a thing that cannot be separated without one or the other being destroyed or undergoing a change of nature (essential parts) cannot be the subject of separate rights’. In other words, the owner of the plot of land is also the owner of its produce, and may enjoy her property at her discretion. The law comprises similar provisions with regard to the harvested produce. After separation from the soil, the rule is that the harvest also belongs to the owner of the plot of land where the products were grown (compare § 953 BGB). Exceptions are made in the event that a person other than the owner is entitled to appropriate foods that were produced on the soil (compare §§ 954 et seq. BGB). Since Marta, Mattias, Madison, and their families were not entitled to appropriate the fruits and vegetables grown, but rather acted in bad faith when they took possession of the real estate owned by Max Corporation, these exceptions do not apply in their case. Instead, they have to surrender the produce to Max Corporation, or in case the produce has already been consumed, pay compensation. On a final note, the example points to an investigation into whether a conception of the right to food—most likely understood as part of the right to life and health (Art. 2(2) Basic Law)—may trump private property in a balancing exercise. In the German legal system, it is unlikely that the two positions would clash in a way that

186

J. Croon-Gestefeld

would make it necessary to give priority to the right to food. The state offers financial support to persons in need, through either social benefits46 or unemployment benefits.47 People are supposed to buy their food on the open market. Actions that people undertake to supply themselves with food, which impair someone else’s property, are considered unnecessary, and therefore not tolerated by the German property regime.

2.4

Water (Rural)

Maya, Malik, and Mei depend on the water of Flumia, a nearby river. The three villagers together with other villagers in the area build aqueducts and an irrigation canal from the river to their respective homes and fields. After a few years, a private corporation diverts the water of the Flumia River. Soon after, Maya, Malik, and Mei realize that water no longer flows to the aqueducts and irrigation canal from the river. Maya, Malik and Mei sue. Water regulation has been the issue of comprehensive new codification in the last few years. The Federal Water Act (“WHG”), substantially influenced by the European Water Framework Directive, governs the ownership situation as well as the usage of water in Germany. In addition, there are water laws at the Länder level that contain further regulations.48 § 4(2) WHG stipulates that water-streams aboveground and groundwater cannot be subject to property rights. This does not mean that one is not allowed to use water. Water usage is subject to different levels of regulation, depending on its intensity. According to § 25 WHG, the usage of waters aboveground is organized as common usage (see Sect. 1.2). Hence, every person may use the waters, as long as she respects the rights of others. On a second level, owners of land through which the water streams as well as persons entitled by such owners may use the water to satisfy their personal needs (§ 26 WHG). They, too, have to consider the rights of others, but are otherwise free to use the water more intensively than users relying on common usage. On a third level, when the intensity of water usage is highest, the user needs special permission by the competent authorities to divert water, et cetera (comp §§ 8 et seq. WHG). For example, the owner of a factory requires authorization, if she seeks to channel large amounts of water off a nearby river to power the production in the factory. With respect to the case at hand, it is therefore necessary to determine (a) the intensity of water usage by the private corporation on the one hand, and by Maya, Malik, and Mei on the other hand, as well as (b) their respective ownership positions with regard to the land through which the river Flumia streams. Starting with the situation of the private corporation, apparently it interferes heavily in the flow of

46

Social Security Code XII (Sozialgesetzbuch XII). Social Security Code II and III (Sozialgesetzbuch II und III). 48 Pursuant to Art. 72(3) Nr. 5 Basic Law, Länder have the competence to pass water acts that differ from the provisions of the WHG. 47

Property Meeting the Challenge of the Commons in Germany

187

water of Flumia. Such interference requires specific authorization. Considering that the effects of the irrigation are as extreme as stopping the flow in the aqueducts downstream, it is unlikely that the corporation has obtained a permit. As a result, public authorities may become active, and prohibit further diversion of water. As far as Maya’s, Malik’s, and Mei’s situations are concerned, it is also questionable that they are allowed to divert the water. If I interpret the facts as stating that they are not owners of the land through which the river flows, they may only use it under the conditions of common usage. Diverting water via the means of aqueducts and irrigation canals most likely exceeds water usage as allowed under common usage, because it leads to people downstream having less water to their avail. Consequently, Maya, Malik, and Mei most likely require permission for their water usage as well.

2.5

Water (Urban)

Jose, Jasmine, and Horatio are three friends that inhabit an apartment together in a city, Flumiapolis. Following a large increase in the price of water (200 per cent in one year), the three friends fail to pay their water bills. After failing to pay their third bill, the water management cuts off their access to the water supply. Jose, Jasmine and Horatio sue. In order to answer this question, it is useful first to examine the regulations on water supply. The supply of water is a public task assigned to municipalities.49 They are free to organize the water supply under either public law or private law. In case they opt for organization under private law, they nevertheless remain responsible for the water supply. Under German law, municipalities are obliged to provide individuals with water. Should the supply be organized publicly, the claim is direct; should the supply be organized privately, the claim is indirect, meaning that the municipality is required to influence the private suppliers so as to ensure water supply. If a contractual relation between a water supplier and a consumer exists, the relation can be of either a public law or a private law nature. Common are relations governed by private law. With regard to the dealings between water suppliers and private consumers, these contracts are subject to more intense regulation and control of their content than other contracts for reasons of consumer protection. If general terms and conditions govern the contracts, the provisions of the Ordinance on the General Provisions of Water Supply (Verordnung über Allgemeine Bedingungen für die Versorgung mit Wasser, hereafter “AVBWasserV”) are applicable. Pursuant to § 33 AVBWasserV, the supplier may discontinue the supply if the consumer has not paid despite an overdue notice, and if the supplier has threatened to cut off supply two weeks in advance. In the event of repeated failure to pay, the supplier may terminate the contract altogether. On the other hand, the supplier is not entirely free in setting the prices for water. Price increases are conditional on factors directly attributed to the water supply (compare § 24(3) AVBWasserV). Although the 49

§ 50 WHG; Maurer (2020), § 3 para. 25.

188

J. Croon-Gestefeld

supplier may increase the prices for water supply, such specification of performance ‘is binding on the other party [the consumer] only if it is equitable’ (§ 315(3) BGB). Courts can amend the payment conditions if they consider them to be non-equitable.50 Applied to Jose’s, Jasmine’s, and Horatio’s situation, they most likely have a valid claim against the water supplier to reconnect them to the water supply. The increase in the price of water by 200% in one year seems excessive. Under this premise, the payment condition was not binding on them, and they had the right to refuse the full payment of the bill. In the legal proceedings, the court may set a more reasonable price for the water, which will then have to be paid by Jose, Jasmin, and Horatio. Consequently, the claim for reconnection to the water supply is conditional upon counter-performance of paying for the water already received against the price determined by the court. The situation may have to be assessed differently if the large increase in price was justified. If, for example, a severe drought has affected the water supply in the Flumiapolis region, making new drilling necessary to ensure the supply, the payment conditions may have been equitable. In the latter case, Jose, Jasmin, and Horatio have to pay the outstanding bills in their entirety before they can claim reconnection to the water supply.

2.6

Nature

Hamid, Heba, and their two children used to spend many weekends walking and playing in one of the few green areas at the outskirts of the city where they live. The land belongs to a private owner who lives in a small house near the lake. Corporation C acquires the green area and converts it into a members only country club. Hamid and Heba sue. A local environmental group also sues claiming access to what they consider a natural commons. Under German law, it is possible for Hamid and Heba to sue Corporation C for access to the land, but it is uncertain if the court will grant the claim. Hamid and Heba may try to rely on the protection of common usage (see Sect. 1.2), as it is guaranteed under environmental law. § 59(1) Federal Act on Nature Conservation and Landscape Management (“BNatSchG”) allows everyone recreational access to the free landscape on roads and paths as well as on unused areas for recreational purposes.51 Since Corporation C prevents Heba and Hamid from entering the territory, the latter could argue that the former prevents them from exercising their right to common usage. In a similar case, the Federal Court of Justice decided that a claim seeking to enforce common usage can be based on an analogous application of

50

On the legitimacy of review of prices, which privately organized persons charge for public services, see BGHZ 73, 114, 116; 115, 311, 316; 195, 144, 151. 51 Similar provisions can be found at the Länder level, e.g. Arts. 26 ff. Bavarian Act on Nature Preservation.

Property Meeting the Challenge of the Commons in Germany

189

§ 1004 BGB.52 This means that a person entitled to common usage may defend her right to common usage against interferences in a similar manner to an owner defending her property (on §1004 BGB, see Sect. 2.1). However, it is difficult to assess if the conditions for common usage pursuant to § 59 BNatSchG are met based on the information given in the example. The areas that Hamid, Heba and their children want to visit have to be part of a free landscape for them to have a case. Free landscapes, which can be part of private property, are commonly understood as bigger areas outside closed settlements.53 They are characterized by their natural, untouched appearance.54 According to the example, a small house is located on the site of the country club. In dealing with the case, the competent court would therefore have to assess if the house catches visitors’ eyes, and lets the area appear as developed instead of as a free landscape. Should the court conclude that the area is a free landscape, Corporation C would have to tolerate that visitors who are not members of the country club walk on the roads and paths crossing its property. However, a further obligation to tolerate access off the tracks seems unlikely, because grounds where members of a country club can pursue their leisurely activities are by definition not unused areas. As far as the locus standi of the local environmental group is concerned, it cannot sue Corporation C to open its premises for common usage pursuant to § 59 BNatSchG. Environmental law grants rights to participation to environmental groups (compare §§ 63 et seq. BNatSchG). However, these rights mainly concern landscape conservation planning, and do not cover the right to take legal actions, which aim at enforcing common usage. Nevertheless, the environmental group may indirectly commence legal proceedings against Corporation C. The example states that it is a local environmental group seeking common usage. Thus, its members are likely to live near the area in question, and may claim—just like Hamid and Heba— that they are personally affected in their individual right to common usage if Corporation C bars them from access to the area.

2.7

Territory

Yellowriver is a small village sitting within a large and remote forest area. The government grants to Gold Masters Corporation permission to dig seeking for gold in order to develop a nearby mine. Aware of the high polluting risks of gold extraction to the nearby river, villagers erupt in protest and attempt to stop the project by legal means. Do they have any available action to protect the river— either as individuals or as an endangered community?

52

BGH NJW 1998, 2058. Comp. OVG Berlin NVwZ-RR 2009, 914, 915. 54 BayObLG NVwZ 1983, 503, 504. 53

190

J. Croon-Gestefeld

Generally speaking, the inhabitants of the village have legal means to their avail to take action against the mining project. They may lodge an objection against the permission for gold-digging with the public authority that has granted the permission (§§ 68 et seq. VwGO). If the objection does not induce the authority to revoke the permission, they can file an action of voidance against the permission before the competent administrative court (Anfechtungsklage, § 42(1) Alt. 1 VwGO). They are allowed to do so because they can claim that the permission for mining potentially violates their right to health and well-being (§ 42(2) VwGO). A possible future pollution of the river cannot be excluded to lead to diseases or ailments of people living near the stream and relying on its water. In their action for voidance, the villagers might claim that the procedure for granting the mining permission has not been conducted properly, and that the obligatory standards aimed at ensuring environmental protection have not been adhered to. Under German mining law, mining companies must devise a plan for their activities (§§ 51 et seq. Federal Mining Act, Bundesberggesetz, hereafter “BBergG”). Performing an environmental impact assessment is mandatory in this procedure if a company wants to extract gold (§ 52(2a) BBergG in connection with § 57c BBergG, § 1 Sentence 1 Nr. 1 Ordinance on the Environmental Impact Assessment of Mining Projects, Verordnung über die Umweltverträglichkeitsprüfung bergbaulicher Vorhaben, hereafter “UVP-V Bergbau”). Thus, the inhabitants have to bring mistakes or omissions in the environmental impact assessment to the court’s attention if they want to be successful. Regarding the question of whether they can appear as an endangered community in legal proceedings, it needs to be stated that the concept of an ‘endangered community’ is foreign to German law. That said, there is an option for taking collective legal action. According to the Environmental Appeals Act (Umweltrechtsbehelfegesetz, hereafter “UmwRG”), an accredited environmental group may also challenge the permission just like the individuals who are directly affected by the impending mining (compare § 1(1) Nr. 1 lit. b UmwRG in connection with § 1 Sentence 1 Nr. 1 UVP-V Bergbau). The group has locus standi, without having to show an infringement of its own, or its members’, rights (compare § 2 UmwRG).

2.8

Culture

State funding to a non-profit local theatre is cut in response to austerity measures; as a result the theatre will be sold to a private company that wants to operate the theatre at a profit. Evgenia, Misha, and Katia are actors, and along with other concerned citizens that protest the sale and other workers, they occupy the theatre, and continue the theatre’s programming for the public through a combination of volunteer work and donations. The municipality brings suit to evict against Evgenia, Misha, Katia, and the other actors.

Property Meeting the Challenge of the Commons in Germany

191

From the information given in the example, it appears that the local theatre belongs to the municipality. Consequently, the state is owner of the theatre. This raises the issue of whether an eviction of the actors needs to be assessed according to private property law or public law. In the comparable situation of a ban on entering public facilities, courts consider whether the original reason for the visit was to conduct private or public business. The ban on entering a public theatre of a visitor, who had misbehaved on several occasions, was considered to be governed by public law.55 One may infer from this decision that the request of the municipality for the actors (formerly) employed by the municipality to leave the property, is also governed by public law. As a result, the case would most likely unfold as follows: the municipality would issue an administrative act against the actors telling them to leave the premise. In the event they did not obey the summons, the municipality could resort to force, especially police units, in order to clear the building. On the other hand, Evgenia, Misha, Katia, and the other actors would have the option to lodge an action of voidance (Anfechtungsklage, § 42(1) Alt: 1 VwGO) before an administrative court to challenge the administrative act. They are unlikely to succeed, since there is no reason for why they have to occupy the theatre in order to perform. They could just as well enact their plays at a different site. The fact that they are active in the field of culture does not lend additional substance to their position. Variation: Assume that the actors obtain permission to stay and to use the theatre provided that they run it as a commons in the interest of culture and future generations. What legal form should they use to this purpose? I understand the phrase ‘run it as a commons’ to imply that all actors are involved in the decision-making processes to the largest extent possible, and that they do not intend to run the theatre to draw profit. Under these circumstances, the actors should organize themselves in the form of a non-commercial association (§ 21 BGB). Such an association has legal personality (compare § 21 BGB), and is therefore capable of entering into legal relations. In addition, the organizational structure of an association provides members with ample opportunities for participation. Non-commercial associations have two organs. The board represents the association in its external relations (§ 26 BGB); the meeting of the members appoints the board (§ 27 BGB), and decides on the general affairs of the association (§ 32(1) Sentence 1 BGB).

2.9

Climate

Diletta, Flavio, and Antonella became aware of the reality of climate change when their school teacher decided to work on reading materials that were circulated at the time of the 2015 Paris Agreement on Climate Change. Although just turned 18 years old, all the three of them took the information quite seriously and started to worry

55

VG FFM NJW 1998, 1424.

192

J. Croon-Gestefeld

about the gloomy expectations they learnt about: dangerous rise in the global temperature, water scarcity, droughts, forest fires, possible displacement of populations, etc. After the scandal involving the Popcar Corporation, concerning the manipulation of computer systems for the control of emission in cars, Diletta, Flavio, and Antonella are struck by the quite feeble sanctions inflicted to the car manufacturer—not only in their jurisdiction. For this reason, Diletta, Flavio, and Antonella decide to take action in the interest of future generations. They sue their government and the global corporation Popcar. The example is based on the diesel scandal, with which the German public and jurisdiction have been occupying themselves for some years. With respect to legal action against the government, summarizing the actual litigation before answering the hypothetical may provide some insights. Under German environmental law, which is influenced by EU Directives, the competent authorities shall draw up clean air plans which help reduce fine particulate air pollution (compare § 47 Federal Emission Control Act, Bundesimmisionsschutzgesetz). If these plans are insufficient to improve air quality to such an extent that the limits of pollution prescribed by EU law are met, the authorities can be sued. Individuals that are directly affected in their health by the insufficient plans have standing (§ 42(2) VwGO). Furthermore, the Federal Administrative Court decided—considering case law of the European Court of Justice56— that environmental associations also have locus standi.57 One environmental association, the Deutsche Umwelthilfe, has been particularly active in suing public authorities with the aim of their having to improve their clean air plans.58 So far, courts have ordered local authorities to take measures in order to meet their clean air targets including limited driving bans on certain automobiles.59 However, should the clean air targets, which Germany has committed itself to, continue to be missed, courts may themselves issue more comprehensive driving bans for heavily polluted cities in the future. As far as Diletta, Flavio, and Antonella are concerned, they could sue the authority responsible for setting up a clear air plan in their region, if the air pollution limits are exceeded and if these transgressions affect their health. Alternatively, they could bring their cause to the attention of a formally-recognized environmental association, and convince it to sue the public authorities. Direct action against Popcar, however, is less likely to be successful. I assume that none of the persons mentioned is an owner of a Popcar vehicle. They would thus need to derive any claims against Popcar from a non-contractual basis. A damage claim pursuant to German tort law (§ 823(1) BGB) could be an option. In this case, Diletta, Flavio, or Antonella would have to prove that Popcar’s manipulated cars

56 Esp. Case C-237/07 Janecek [2008] ECLI:EU:C:2008:447 and Case C-240/09 Slovak Brown Bear [2011] ECLI:EU:C:2011:125. 57 BVerwGE 147, 312. 58 See, e.g., VG Düsseldorf NVwZ 2017, 899. 59 See BVerwGE 161, 201.

Property Meeting the Challenge of the Commons in Germany

193

have had a negative impact on their health. I estimate that providing evidence for the impairment of their health, as well as showing causality between such impairment and Popcar’s manipulation, would be very difficult if not impossible.

References Bosselmann K (2015) Earth governance: trusteeship of the global commons. Elgar, Cheltenham Brakensiek S (2000) Gemeinheitsteilungen in Europa. Neue Forschungsergebnisse und Deutungsangebote der europäischen Geschichtsschreibung. Jahrbuch für Wirtschaftsgeschichte 41:9–15 Bussani M, Mattei U (1997) The common core approach to European private law. Columbia J Eur Law 3:339–356. https://bit.ly/2YKAmaJ Depenheuer O (2018) Art. 15. In: Mangoldt H, Klein F, Starck C (eds) GG. C.H. Beck, München Dreier T (2005) Creative Commons, Science Commons - Ein Paradigmenwechsel im Urheberrecht. In: Perspektiven des Geistigen Eigentums und Wettbewerbsrechts Festschrift für Gerhard Schricker. C. H. Beck, München, pp 283–298 Dreier T, Schulze G (2022) UrhG, 5th edn. C.H. Beck, München Engel C (1997) Das Recht der Gemeinschaftsgüter. Die Verwaltung 30:429–479 Gierke O (1895) Deutsches Privatrecht, Bd. I. Duncker & Humblot, Leipzig Halfmeier A (2016) Nachhaltiges Privatrecht. AcP 216:717–762 Helfrich S, Heinrich-Böll-Stiftung (eds) (2014) Commons: Für eine neue Politik jenseits von Markt und Staat. Transcript Verlag, Bielefeld Helfrich S, Bollier D, Heinrich-Böll-Stiftung (eds) (2015) Die Welt der Commons. Muster gemeinsamen Handelns. Transcript Verlag, Bielefeld Heßler H-J (2020) ZPO § 750. In: Münchener Kommentar zur Zivilprozessordnung mit Gerichtsverfassungsgesetz und Nebengesetzen, 6th edn. C.H. Beck, München Knauff M (2016) § 6. Die wirtschaftliche Betätigung der öffentlichen Hand. In: Schmidt R, Wollenschläger F (eds) Kompendium Öffentliches Wirtschaftsrecht. Springer, Berlin, Heidelberg Kniesel M (2013) Veranstaltung traditioneller Märkte durch Kommunen. GewArch, 270 Luhmann N (1984) Soziale Systeme. Grundriß einer allgemeinen Theorie. Suhrkamp, Frankfurt am Main Luhmann N (1993) Das Recht der Gesellschaft. Suhrkamp, Frankfurt am Main Maurer H (2020) Allgemeines Verwaltungsrecht, 20th edn. C.H. Beck, München Ostrom E (1999) Die Verfassung der Allmende (transl. Schöller). Mohr Siebeck, Tübingen Papier H-J, Shirvani F (2022) Art. 34. In: Dürig G, Herzog R, Scholz R (eds) Grundgesetz Kommentar. C.H. Beck, München Papier H-J, Durner W (2015) Der Gemeingebrauch an öffentlichen Straßen. In: Ehlers D, Pünder H (eds) Allgemeines Verwaltungsrecht. De Gruyter, Berlin, pp 852–873. https://bit.ly/3lwLXTE Pass R (2000) Die Reformen im Dorf. Gemeinheitsteilungen im Beziehungsgeflecht dörflicher Gesellschaften. Jahrbuch für Wirtschaftsgeschichte 41:72–84 Remmert B (2022) Art. 87e. In: Epping V, Hillgruber C, Beck OK (eds) GG. C.H. Beck, München Sacco R (1991) Legal formants: a dynamic approach to comparative law (Installiment I of II). Am J Comp Law 39:1–34. https://bit.ly/3lCeR4W Samuelson PA (1954) The pure theory of public expenditure. Rev Econ Stat 36:387–389 Schoch F (2009) Das gemeindliche Selbstverwaltungsrecht gemäß Art. 28 Abs. 2 Satz 1 GG als Privatisierungsverbot? DVBl 124:1533–1538 Thole C (2019) § 986 In: J. von Staudingers Kommentar zum Bürgerlichen Gesetzbuch mit Einführungsgesetz und Nebengesetzen. Buch 3, Sachenrecht. §§ 985-1011. Sellier-de Gruyter, Berlin

194

J. Croon-Gestefeld

Wagner K (2017) Aktuelle Möglichkeiten und rechtliche Probleme der Creative CommonsLizenzmodelle. MMR 4:216–220 Wiebe A (2019) § 31 UrhG. In: Spindler G, Schuster F (eds) Recht der elektronischen Medien, 4th edn. C.H. Beck, München Wielsch D (2008) Zugangsregeln. Mohr Siebeck, Tübingen Winkler M (2009) BVerwG, 27. 5. 2009—8 C 10.08. Kommunale Pflicht zur eigenverantwortlichen Veranstaltung des traditionellen Weihnachtsmarktes. JuristenZeitung 23:1167–1171 Zacher HF (1993a) Erhaltung und Verteilung der natürlichen Gemeinschaftsgüter - eine elementare Aufgabe des Rechts. In: Badura P, Scholz R (eds) Wege und Verfahren des Verfassungslebens: Festschrift für Peter Lerche zum 65. Geburtstag. Beck, München, pp 107–120 Zacher HF (1993b) In: Von Maydell B, Eichenhofer E (eds) Abhandlungen zum Sozialrecht. C.F. Müller, Heidelberg Zacher HF (1996) Der einzelne im Konflikt mit der Gemeinschaft - Rolle und Techniken des Rechtsstaates. In: Merten D, Schmidt R, Stettner R (eds) Festschrift für Franz Knöpfle. C.H. Beck, München, pp 413–432 Zacher HF (2008) In: Becker/Ruland (eds) Abhandlungen zum Sozialrecht II Zückert H (2003) Allmende und Allmendeaufhebung. Vergleichende Studien zum Spätmittelalter bis zu den Agrarreformen des 18/19. Jahrhunderts. De Gruyter, Berlin Zückert H (2005) Allmende. In: Jaeger F (ed) Enzyklopädie der Neuzeit, vol I. J.B. Metzler, Stuttgart Zückert H (2015) Allmende: Zur Aktualisierung eines historischen Eigentumsbegriffs. In: Helfrich S, Heinrich-Böll-Stiftung (eds) Commons: Für eine neue Politik jenseits von Markt und Staat, 2nd revised edn. Transcript Verlag, Bielefeld, pp 158–165. https://bit.ly/3oVKuIA

Meeting the Challenge of the Commons in Italy Marco D’Alberti, Federico Caporale, and Silvia De Nitto

Abstract There is no formal definition of the commons in Italian law. The cultural debate on the commons has been profoundly alive in Italy, particularly in the last decade. A Commission chaired by Stefano Rodotà suggested the introduction of the commons into the Civil Code, but that proposal was abandoned. Some rules on public property already correspond to the notion of commons; public domain (beaches, rivers, lakes, aqueducts, cultural heritage) is not alienable. Private property is guaranteed by law, which determines its limits with the aim to assure its “social function” and to render it “accessible to anyone”. “Social function” means that if there is a connection between private property and a public interest, a statute, regulation, or administrative order can impose specific limits on the owner (e.g., public driving of telephone poles into private land; prohibition on building private houses over a certain height near airports; obligation to build villas with a certain style and materials in sites of scenic beauty). Case law has recently introduced the category of the commons: the Corte di cassazione has used it in seminal cases concerning the fish valleys of the Venetian Lagoon. The judgment confirms that, regardless of their formal ownership, goods capable of satisfying fundamental needs and rights in the interest of present and future generations must be subject to an adequate regime of proportionate restrictions. The commons are not the enemy of private property, but of the excesses of its accumulation. The Italian Constitution establishes that, for purposes of general utility, statutes may transfer, through expropriation with due compensation, to the State, public bodies, or communities

M. D’Alberti “Sapienza” University of Rome, Rome, Italy e-mail: [email protected] F. Caporale (✉) University of Aquila, L’Aquila, Italy e-mail: [email protected] S. De Nitto LUISS University, Rome, Italy e-mail: [email protected] © The Author(s), under exclusive license to Springer Nature Switzerland AG 2023 U. Mattei et al. (eds.), Property Meeting the Challenge of the Commons, Ius Comparatum - Global Studies in Comparative Law 59, https://doi.org/10.1007/978-3-031-25218-1_6

195

196

M. D’Alberti et al.

of workers or users, enterprises running public services or energy sources, or having a monopoly position. These forms of nationalization can impinge upon commons.

1 Questionnaire: Part I1 1.1

What Legal Categories in Your Legal System May More Closely Correspond to the Notion of the Commons as Deployed in the Introduction?

We start from the notion of the commons described in the Survey Introduction, where these resources are defined as neither private nor public; as not being commodities put on the market for exchange value; as capable of satisfying fundamental needs and rights in the interest of present and future generations. This significant definition comes from academic legal literature and cannot be retrieved in Italian explicit statutory provisions. The main legal categories concerning goods are contained in the Civil Code of 1942, in the Constitution of 1948, and in special statutes, mainly entered into force in recent times. The Italian legal system provides for both private property and public property. Detailed rules on private and public property are dictated by the Civil Code, which— with regard to private property—is based on an individualistic ideology. Some rules on public property may in part correspond to the notion of commons. For instance, public domain is not alienable (Art. 823) and therefore “extra commercium”: it includes—inter alia—beaches, rivers, lakes, aqueducts, cultural heritage (Art. 822). The Constitution confirms the distinction between private property and public property: it specifies that “economic goods” belong to the State or to private subjects. It establishes that private property is recognized and guaranteed by the law, which determines its limits with the aim to assure its “social function” and to render it “accessible to anyone”. “Social function” means that if there is a connection between the private property and a public interest, a statute, a regulation or an administrative order can impose specific limits on the owner. There are different types of limits. They can result in minor limitations such as public driving of poles for telephone cables into the private land; in prohibitions like the one not to build private houses over a certain height in areas where an airport has been located; in the obligation to build villas with a certain style and materials in sites of particular scenic beauty; or in broader restrictions of the private owner’s activity in case of forest or cultural property.2 In addition, the Constitution lays down that private property can be

1

Although this paper is the outcome of shared reflections, Marco D’Alberti wrote part I; Federico Caporale wrote Q1, Q4a, Q4b, Q6; Q7 of part II; Silvia de Nitto wrote Q2, Q3, Q5, Q8 of part II. The text has been submitted in 2018. 2 See Giannini (1985), p. 105.

Meeting the Challenge of the Commons in Italy

197

expropriated, under statutory provision, for reasons of “general interest”, provided that an indemnity is granted (Art. 42). The Constitution is certainly more open to the social aims of private property. This is confirmed by the constitutional provision according to which statutes can establish that private undertakings—and therefore their goods—operating as public utilities, in energy sectors, or in a monopoly position, might be transferred to “communities of workers or users” (Art. 43). Special statutes contain rules on diverse types of goods and resources: they follow an ambiguous path. On the one hand, highly relevant for the topic of commons are the statutes on environment, cultural and landscape heritage.3 For instance, there are provisions concerning public waters—that usually belong to the public domain—which stress that their use shall satisfy the interests of present and future generations.4 As to cultural heritage and landscape, public and private property are subject to intense discretionary powers of the competent administrative agencies: for example, building permissions and any other interventions on these goods are to be preceded by special authorizations aimed at preserving the cultural or environmental value of the goods.5 On the other hand, other special statutes have underlined the exchange value of public goods: for instance, there are statutory provisions establishing that some public goods, even pertaining to public domain, may be ceded to private persons or entities or that public goods belonging to the State can be transferred to local bodies and then sold. These are evident derogations from the Civil Code, where inalienability of public domain is provided for.6 Case law has recently expressly introduced the category of the commons: the Corte di cassazione has used the notion of commons in seminal cases concerning the fish valleys of the Venetian Lagoon.7 These are, according to the Civil Code, goods included in the public domain, as they had been since 1840s. Therefore, the Court held against the claimants, private companies asserting a private right of property over the fish valleys. The qualification of the valleys as public domain was sufficient for deciding the case, but the Court went further and stated that the fish valley is a commons, since it is profoundly connected with constitutional values such as the

3

On environment: legislative decree 3 March 2006, no. 152, as amended by Laws no. 167 and 205 of 2017; on cultural and landscape heritage: legislative decree 22 January 2004. 4 Art. 144, par. 2, of legislative decree no. 152 of 2006 states: “Waters are a resource that shall be protected and utilized according to criteria of solidarity; any use of them shall grant future generations’ expectations and rights to benefit from an intact environmental heritage”. For academic contributions, see Carapezza Figlia (2008), Boscolo (2012), and Mattei and Quarta (2014). 5 See Art. 146, par. 4, that provides for landscape authorization as a prerequisite of any intervention on areas of peculiar panoramic interest. 6 See Art. 55, of Legislative decree no. 42 of 2004; Law no. 112/2002, Art. 7 ff. and Law no. 11/2011. 7 Corte di cassazione, sez. un., 14 February 2011, no. 3665; sez. un., 16 February 2011, no. 3813; sez. un., 18 February 2011, no. 3937.

198

M. D’Alberti et al.

development of the person and the social function of property: a statement that appears to be more an obiter dictum than a ratio decidendi in the specific case, but is certainly significant and shows deep attention paid to the idea of commons. The case was brought to the European Court of Human Rights by one of the private companies mentioned above. The Court held that the applicant company, that had been carrying out fish farming in the valley, had occupied the site and acted as the owner without the authorities ever having taken action. The site had been the base for the company’s activity and, until the property had been incorporated in the public maritime domain, the company had acquired a legitimate expectation to continue its activity. The Court considered that these circumstances conferred on the applicant company title to a substantive interest protected by Article 1 of Protocol No. 1 of the European Convention of Human Rights. The Court stated that the incorporation of the fish valleys in the public maritime domain had to be considered a “deprivation” of property: lawful according to the Italian legal system, since it was aimed at preserving the environment and ensuring the public use of the lagoon, but disproportionate, since the applicant had not been offered just compensation.8 The judgment is relevant for the theory of commons, since it confirms that, regardless of the formal ownership, goods capable of satisfying fundamental needs and rights in the interest of present and future generations must be subject to an adequate regime of proportionate restrictions.

1.2

Is There Today or Was There in the Past a Concept of the Commons in Your Legal System? In the Affirmative, Is It Statutory, Jurisprudential, Doctrinal or Customary?

The concept of commons has ancient roots. In Roman law, individual property was flanked by diverse forms of collective property. The main characteristic of this property lies in the fact that its formal ownership is less relevant than its use, which is open to anyone or to specific communities: a feature that is typical of the commons. One of these forms of collective property was res communes omnium, whose property or right to use belonged to anyone. They included “aer, aqua profluens, mare et per hoc litora maris”: air, current water, sea and seashore. They were deemed to be “non-economic goods”, indispensable for human life, out of commerce. Anyone could use and freely dispose of these goods. The category of res communes only seldom received formal legal recognition and remained a notion mainly having a philosophical value.9

8 9

See European Court of Human Rights (2014). See Volterra (1980), pp. 277 ff.

Meeting the Challenge of the Commons in Italy

199

In the Middle Ages, the idea of collective property was strengthened. For instance, feudal property belonged—at least in part and for determined periods— to the entire community located in the territory. In the eighteenth century, the idea of collective property in continental Europe (mainly in France) was almost abandoned and the individualistic nature of property prevailed. The French Civil Code confirmed this tendency. Italy followed the French model with its Civil Code of 1865. The same line was adopted by the Civil Code of 1942. Therefore, the idea of commons was neglected. It reemerged in the academic debate animated by private and public legal scholars. Salvatore Pugliatti, a prominent scholar in private law, underlined that the Italian legal system knew different kinds of property. He also stressed the importance of collective property of customary origin and even of forms of private property profoundly limited with the aim to assure collective and general needs, as occurred in statutes and case law in the field of cultural heritage or environmental protection.10 Massimo Severo Giannini, one of the major scholars in public law of the last century, expressly used the term “beni comuni”—identical to commons—stressing they belong neither to private nor to public persons and are accessible by anyone. He gave the examples of air, ether, sea, tall mountains.11 Moreover, he elaborated the category of “beni collettivi” (collective goods), underlining that they had in common with “beni comuni” their open access; but while “beni comuni” had no formal owner, collective goods belonged to associations or communities (such as in the case of silvopastoral resources). In recent years the concept of commons has received careful attention in doctrinal debates. The Italian contributions have led to the notion of commons that has been indicated in the Survey Introduction. These goods are neither public nor private. Nor are they a commodity put on the market. They are capable of satisfying fundamental needs and rights of large communities, and even of any person, in the interest of present and future generations.12 Individual private property can be considered a fundamental right in the Italian Constitution and in the European Convention on Human Rights.13 Indeed, as the Survey Introduction clarifies, the commons are not the enemy of private property, but of the excesses of its accumulation. Even private property, if reasonably limited in the name of its “social function”—as provided for in the Italian Constitution—can be capable of satisfying the public interest and the needs of communities: this is the case of forests owned by private persons that are subjected to the orders of public

10

See Pugliatti (1964), pp. 145 ff. See Giannini (1963), pp. 37 ff.; Giannini (1985), pp. 91 ff. 12 See an effective synthesis of the Italian academic debate on the commons in Mattei (2011); see also Rodotà (2012), pp. 105 ff.; Lalli (2015). 13 See Sect. 1.7. 11

200

M. D’Alberti et al.

authorities aimed at preserving a proper environmental stability or of private cultural heritage that must be open to public access.14 In addition, some of the public goods—particularly those included in the public domain—should receive wider guarantees in order to assure more substantial protection to persons and communities interested in their use: this is the case of waters or seashores.

1.3

Is the Commons Today a Topic of Academic Debate in Your Legal System: And in the Affirmative in What Context?

We already saw (Sect. 1.2) some main features of the contemporary doctrinal debate on the commons. Now it is necessary to stress that this debate has been tightly connected with efforts to adopt legislative reforms that could introduce the category of the commons in the Italian legal system and assure a proper protection of them. In 2007 the Minister of Justice established a Commission, chaired by Professor Stefano Rodotà, with the mandate to propose a reform of the existing regime of public goods contained in the Civil Code. The Commission proposed a delegation law aimed, inter alia, at introducing a definition of the commons and specific rules assuring substantive and procedural guarantees for their protection. The results of the academic debate have been taken into consideration. The Commission stressed that the Civil Code needed a profound reform, since it is based on a formal distinction of the public goods—public domain and patrimonial goods—that does not adequately consider the different utilities produced by the various resources. The starting point, according to the Commission, should be to identify the utilities that the individual goods are capable of constructing and to take into the highest possible consideration the constitutional norms that have stressed the social aims that the property must fulfill. As for the commons, the Commission proposed the following definition: [G]oods that express utilities supporting the exercise of fundamental rights and the free development of the person. Commons shall be protected by the legal system, also for the benefit of the future generations. Commons may be owned by public or private legal persons. In any case, their collective use is to be granted, under the limits provided for by statutes.

As for the identification of the commons, the Commission suggested a list including but not limited to “rivers, creeks and their sources; lakes and other waters; air; parks as defined by law, forests and woods; high mountains areas; glaciers and perpetual snows; shores and coasts defined as environmental reserves; wild fauna and protected flora; archaeological, cultural and landscape heritage.” As to the regime of the commons, the Commission proposed the following:

14

See Art. 104 of Legislative decree no. 42/2004.

Meeting the Challenge of the Commons in Italy

201

The commons owned by public legal persons are out of commerce; their use is permitted by concession, for a limited period of time with no extension. . . . Any person is entitled to bring an action in Court for the protection of rights concerning the safeguard and use of the commons. Action for damages to commons is brought by the State.

The list of the commons is susceptible to being enlarged, but it already includes the main categories highlighted by the doctrinal debate, in Italy and abroad. Their regime is similar to the one established by the Civil Code for the public domain as to the inalienability, although it radically differs as to the possibility for anyone to bring a sort of popular action in Court for protecting either the commons from deterioration or the open access to their use.15 Unfortunately, the reform did not pass; however, the idea of commons contained in the proposal continued to be followed and developed in the political and academic debate and in case law as well.

1.4

Is There Any Kind of Public Property in Your Legal System That Is Absolutely Not Alienable?

The goods belonging to the public domain are inalienable. The inalienability was deemed to be absolute in the Civil Code of 1865. The norm established: “The goods of the public domain are for their nature inalienable” (Art. 430). Public domain included a numerus clausus of goods: “national routes, seashore, ports, bays, beaches, rivers and creeks, city gates and walls, trenches, ramparts of the fortresses” (Art. 427). The Civil Code of 1942 confirms that the goods pertaining to the public domain are inalienable. Nonetheless, their inalienability is qualified as relative. The norm establishes: “The goods of the public domain are inalienable and can be subject to third parties’ rights only in the ways and limits provided for by the relative statutes” (Art. 823). Therefore, specific legislation can establish limited forms of alienability. Public domain includes a numerus clausus of goods. The list is larger than the one contained in the Civil Code of 1865. Goods of the public domain and belonging to the State are: “shore, beach, roadsteads and ports; rivers, creeks, lakes and other waters public by statute; works destined to national defense” (Art. 822, par. 1). Equally part of the public domain, if they belong to the State, are: “routes, highways and railways; airports; aqueducts; immovable recognized of historical, archaeological and artistic interest by statute; collections of museums, picture galleries, archives, libraries; and other goods subject to public domain regime” (Art. 822, par. 2). Goods pertaining to this last category are subject to public domain regime if they belong to provinces or municipalities (Art. 824, par. 1).

15

On the importance of the legislative reform see Mattei et al. (2007, 2010).

202

M. D’Alberti et al.

In sum, public domain’s inalienability lost over time its absolute nature. This has been confirmed by the special statutes, mentioned above (Sect. 1.1), that allow public goods, also pertaining to public domain, to be alienated.

1.5

Are There Remedies in Your Legal System for Someone to Challenge in Court a Government That Decided Privatization of the Commons?

Privatization of the commons can assume different forms. First, goods pertaining to public domain—and in part similar to commons—may be alienated to private persons in certain cases and under determined limits laid down by the specific statutes mentioned above. Secondly, there are other public goods not pertaining to public domain, but qualified as “beni patrimoniali indisponibili”: this definition entails they can be alienated to private persons, provided their previous destination is preserved. For instance, buildings destined to public services, such as public schools, may be sold to private companies but they cannot be used for commercial purposes (Art. 826, par. 3, and Art. 828, par. 2). Thirdly, privatization of public undertakings implies alienation of their assets that can have similarities with the commons if the undertaking runs a public service, such as electricity. In all these cases, privatization is usually preceded by an administrative measure aimed at deciding to alienate. In some cases, an action might be brought before administrative courts (Regional courts in first degree and Council of State in appeal) for the ordinary heads of judicial review: ultra vires, error of law, error of fact, abuse of discretion, etc. For instance, an association of students’ parents could bring an action for setting aside the administrative decision to sell the building destined to the school in case no participation in the procedure leading to the decision has been granted. Furthermore, if the administrative court does not annul the administrative decision and the purchasing private company infringes the rule preventing the building’s destination from being changed, an action for damages against the company could be brought before an ordinary court.

Meeting the Challenge of the Commons in Italy

1.6

203

Are There Remedies in Your Legal System for Someone to Challenge in Court a Government That Decided Nationalization of the Commons?

The Italian Constitutional Court, in the Sixties, decided a relevant case of nationalization of enterprises and their assets in the field of public services concerning electricity.16 The Italian Constitution establishes that, for purposes of general utility, statutes may transfer, through expropriation with due compensation, to the State, public bodies or communities of workers or users, enterprises running public services or energy sources, or having a monopoly position (Art. 43). These forms of nationalization can impinge upon commons. The case mentioned above dealt with the nationalization of private enterprises running electricity services. Their activity and their assets, therefore, were aimed at assuring a crucial public service and utility to the entire community. Their assets could be considered as commons for collective use. As to the remedies, since the matter is regulated by the Constitution and the transfer of goods from private hands to public bodies must be made by statute, an action against nationalization must challenge the legitimacy of the statute before the Constitutional Court. In the aforementioned case, the claimants were private companies hit by the expropriation. They held that the statute providing for the nationalization and the transfer of assets to a new public undertaking ENEL, established by said statute, was unconstitutional for violation of Article 43 of the Constitution.17 In particular, the claimants stressed that the statute had not been issued for “purposes of general utility”, as required by Article 43 of the Constitution. The Court held that the legislator had adequately considered the purposes of general utility as clearly emerged by the accurate discussion on the point during the parliamentary proceeding that had led to the approval of said statute. Moreover, the Court underlined that the statute “was aimed at reaching a better satisfaction of the community interests in a crucial economic sector. This confirmed the general utility” pursued by legislation. Other cases of nationalization of the commons may occur where an administrative measure of expropriation of private property is adopted for reasons of general interest. If private lands are expropriated for building areas of social housing or public works, those lands, having become public, are essential elements of resources that correspond in part to commons. The private owners hit by the expropriations may bring an action before administrative courts (Regional Courts in first instance and Council of State in appeal) and ask for the annulment of the expropriation. Ordinary heads of judicial review of administrative action are applied, including the proportionality test.

16 17

Judgment no. 14 of 1964, Costa v. ENEL. Law 6 December 1962, no. 1643.

204

1.7

M. D’Alberti et al.

To What Extent Private Property Is Considered a Fundamental Right in Your Legal System, and What Other Constitutional Rights Could Defeat It in a Balancing Test?

The Constitution of the Italian monarchy (Statuto Albertino, 1848) included private property within the list of the citizens’ rights, in the same section where personal liberty and the freedom of speech were recognized and protected. The Constitution laid down: “Any properties, with no exception, are inviolable” (Art. 29). The Civil Code of 1865 recognized protection to property. It established: “property is the right to benefit from goods in a most absolute way”, provided that they are not used in modes prohibited by law (Art. 436). The Civil Code of 1942 confirms the protection granted to private property, even though the provision is perhaps less emphatic than the one contained in the Civil Code of 1865: “the owner has the right to benefit from goods in a full and exclusive way” (Art. 832). The Republican Constitution of 1948 includes private property within the list of rights, although in a different section from the one where the fundamental personal liberties are recognized. In fact, private property is recognized and protected as an economic right (Art. 42). In any case, private property receives substantial constitutional guarantees. Moreover, private property is within the fundamental rights granted by the European Convention of Human Rights,18 which binds the Italian legislator (Art. 117, par. 1, of the Constitution). In summary, private property in the Italian legal system is a constitutional right that could be considered as a fundamental right. In any case, other constitutional rights could defeat private property in a balancing test. This is based on the Constitution: as stated in Sect. 1.1, the Italian Constitution establishes that private property is recognized and guaranteed by the law, which determines its limits with the aim to assure its “social function” and to render it “accessible to anyone” (Art. 42). Diverse statutes have determined these limits in the name of the “social function” of the private property. Some examples follow. There are different areas of private property within national parks. By statute, planning measures issued by the competent administrative agencies can establish strict limitations on the private owners, aimed at assuring respect of the environmental framework.19 The constitutional right of private property cedes to the collective right to a proper safeguard of the environment. Similar outcomes are provided for by statutes concerning private property in areas subject to environmental redevelopment or geological and water-flow restrictions: private owners keep their rights of disposition of the land but must abide by the regulations, plans and orders issued by administrative authorities that have the power to prohibit determined activities or to impose specific obligations, such as the recovery of

18 19

Article 1 of the Protocol to the Convention, 1952. See Law no. 394 of 1991. See also the topical Desideri and Fonderico (1998).

Meeting the Challenge of the Commons in Italy

205

swamp areas.20 Here, again, private property cedes to the collective right to the safeguard of the environment and also to the safe health of local communities and inhabitants.

1.8

Private Property Is an Institution Aimed at Allowing Exclusion from Land. Is There Any Limit to Such a Power of the Owner to Exclude Justified by a Right of Access of the Private Non-owner?

One of the main characteristics of private property is the owner’s right to exclude other persons from his or her property (“jus excludendi alios” of the Roman Law tradition). As described below, there are several limits in Italian law to this right of the owner. There are diverse forms of servitudes, both in private and in public law, which entail a burden on an estate (servient estate) for another’s benefit (dominant estate). For instance, the Civil Code provides some cases of mandatory servitudes: among others, the case where a landowner is obliged to recognize another owner’s right to build an aqueduct if the waters are necessary for “life needs or agricultural or industrial uses” (Art. 1033). An owner is also obliged to let a neighbor cross his or her land if the latter cannot otherwise have access to a public road (Art. 1051). There are voluntary servitudes as well, established by contract or testament (Art. 1058): for instance, the owners of estates close to each other can enter into a contract recognizing the right of one of them to collect water from a well. The general rule is that servitudes follow the land, meaning that they remain despite any change in the ownership of the estates (Art. 1027). Public servitudes are established by statute and administrative measures. For instance, administrative agencies have the power to impose on private owners the obligation not to build over a certain height in areas where an airport is located, or to be subject to the construction of the infrastructure needed to build a power line or a funicular. Compensation is usually provided for. Another example of limits to the owner’s right to exclude stems from the constitutional “social function” of private property. For instance, the private owners of a house where a prominent poet used to live must give access to visitors for a number of hours during the day. The house where Giacomo Leopardi lived in Recanati is still owned by Leopardi’s family. They live at the upper floor: visitors are entitled to access the other floors, the library and an exposition almost every day during the year. This owner’s obligation derives from statutory provisions on cultural heritage.21

20 21

See Royal Decree no. 215 of 1933 and Italian civil code of 1942, Art. 857 ff. See Art. 104 of Legislative decree no. 42 of 2004.

206

1.9

M. D’Alberti et al.

Summary Remarks

There is no formal definition of the commons in Italian law. The cultural debate on the commons has been profoundly alive in Italy, particularly in the last 10 years. The ministerial Commission chaired by Stefano Rodotà suggested the introduction of the commons into the Civil Code, but the proposal was abandoned. Certainly, the inclusion of the category of the commons in the Civil Code could help. In any case, the crucial aspect is that the commons should receive a proper protection, keeping in mind that they are capable of satisfying essential needs and rights of present and future generations. This protection should mainly consist in assuring their collective use, regardless of their private or public ownership. Water is a resource that can be considered a commons. In the Italian legal system (as in many others) waters usually belong to the public domain. This entails that they are in principle inalienable and receive quite a strong protection: the Code on the Environment provides many guarantees concerning the preservation and collective use of waters.22 The public property of waters does not involve that the service for supplying waters should be necessarily run by public entities. The service is certainly a public utility subject to the rules on this kind of activity: inter alia, continuity, equality, adaptation to the needs of the users, regulation issued by an administrative agency with peculiar expertise on the matter. The service can be run by private companies, provided that all the rules are respected.23 The State, as owner of the waters, can give the service in concession with a contract awarded following a competitive tender procedure. Adequate protection of the water and its collective use must be assured by proper contractual clauses and administrative regulations. For instance, the independent administrative Authority that regulates the water sector stressed that Italian aqueducts lose almost 37% of the water due to holes in the pipes and other dysfunctions. Relevant investments in infrastructure are needed to avoid such an enormous amount of the precious commons getting lost. Public administrations often lack the necessary resources. In case the service is given in concession to a private company, the design of the related tender procedure should be clear and effective in establishing, as a pre-requisite for awarding the contract, that the company shall assure adequate investments to ameliorate the infrastructure. In addition, the contractual clauses should provide for serious sanctions in case of a company’s infringement of the obligation to invest according to the contract. The contract should also establish proper guarantees for the users. As for cultural heritage, it is included within public goods and open access is granted. Even in this case, both private and public entities could enhance its worth, always under proper directives issued by administrative agencies.24 22

See Art. 144 ff. of Legislative Decree no. 152 of 2006. For different opinions on this point, see Mattei and Quarta (2014) and Caporale (2017). 24 See, for different views on this point, Montanari (2015) and Casini (2016). 23

Meeting the Challenge of the Commons in Italy

207

Finally, land and water poaching is a serious threat for the commons all over the world. The problem is particularly severe in cases where lands and waters are located in underdeveloped countries and are grabbed by large foreign companies for agricultural or industrial uses.25 In various “target-States,” constitutions and statutes provide forms of protection of lands and waters. Nonetheless, these provisions are very far from the real context, which too often results in serious sacrifices of the local communities and their inhabitants. Many times they are compelled to leave the places where they have been living for generations; the environment has suffered since, for instance, deforestations are often carried out by companies to set up and cultivate new plantations. Remedies can be put in place not only by statutory and constitutional norms, but also by contracts entered into by the “target-State” and the companies for the acquisition of lands and waters. Some common model-clauses, prepared at a supranational level, should provide adequate guarantees concerning the protection of environment, health and work. Supranational agencies should support national authorities for the proper implementation of such contracts and the solution of related disputes.26

2 Questionnaire Part II 2.1

Housing

John, Orri, Sekela and Satoshi, desperate to find a home at an affordable cost, together with their families (including several children) inhabit homes in a development project, suspended due to delayed authorizations. The four friends and the families work on both the buildings and the land to enhance their living conditions (for instance, by painting the walls and adding a little garden). After a couple of months, the legal manager of the land discovers the four families and attempts to remove them. The families refuse to leave and the manager brings a claim against them. In this case, the term “delayed authorizations” can be interpreted in different ways. For instance, it could refer to authorizations requested by the manager of the land for the completion of the development project. It could also be interpreted as the authorizations requested by the four friends in order for them to be granted the right to inhabit apartments included in a project of social housing. In both cases, according to the Italian legal system, John, Orri, Sekela and Satoshi do not have legal title to inhabit the houses and therefore are to be considered unlawful occupiers.

25 26

See Sassen (2013, 2014). See D’Alberti (2018).

208

M. D’Alberti et al.

The legal manager of the development project—assuming that he or she is the owner of the assets—can file a property claim in Civil Courts, under Art. 948 of the Italian Civil Code, according to which the owner may ask the possessor to leave the property. This claim can be filed at any time. As for damages, John, Orri, Sekela and Satoshi are liable for the ones that they may have caused to the land and the buildings (e.g. demolishing the walls or ruining the land). They will probably not be found liable, however, for the mere occupation of the land and the buildings, particularly if the second meaning of “delayed authorizations” is adopted. With respect to this subject, the Italian Court of last instance (Corte di Cassazione) has expressed two contrasting orientations: some judgments state that the occupation in re ipsa damages the proprietor, because it prevents him to use the land and the buildings and to benefit from the resulting utility;27 other judgments state that the liability does not derive from the occupation itself, but from the impossibility to rent, sell or make other profit from the land and the buildings.28 According to this second interpretation, the owner must also provide evidence of the damages effectively suffered. Whatever the statement would be, John, Orri, Sekela and Satoshi could not be considered liable until the land manager receives the authorizations (in the first meaning). In fact, the delay in the release of the authorizations prevents the land manager to use, sell or locate the land and the buildings and excludes that he can use, make profit or benefit in any way from the property. Moreover, John, Orri, Sekela and Satoshi will be refunded the extraordinary expenses they have incurred and will receive compensation for any improvement existing at the time of the restitution of the land and the buildings.29 The compensation will be equivalent to the lesser of the increased value of land and buildings and the costs incurred. With respect to adverse possession, John, Orri, Sekela and Satoshi may acquire the property of the land and the buildings after 20 years of possession and only if the legal manager has not carried out any act aimed at reaffirming his right of property.30 The period of time is shortened to 15 years if the land and the buildings constitute a farmland with a small construction situated in montane communities (Art. 1159-bis, Italian Civil Code).31

27

See Corte di Cassazione, 16 April 2013, no. 9137. See Corte di Cassazione, 17 June 2013, no. 15111. 29 Art. 1150, Italian Civil Code: “The possessor, even if in mala fide, should be refunded for extraordinary works. He must also be compensated for the improvements that he gave to the good, as long as they subsist when he gives back the possession. The compensation is equivalent to the increased value as a result of improvements, if the possessor is in bona fide; if the possessor is in mala fide, the compensation is equivalent to the lesser sum between the increased value and the costs incurred”. 30 Art. 1158, Italian Civil Code: “The property and other rights on buildings may be acquired after twenty years of uninterrupted possession”. 31 Art. 1159-bis, Italian Civil Code: “The property of farmlands which have small constructions situated in montane communities may be acquired after fifteen years of uninterrupted possession”. 28

Meeting the Challenge of the Commons in Italy

209

John, Orri, Sekela and Satoshi could be exposed to criminal prosecution for violation of the Italian Criminal Code (Art. 633, par. 1, Italian Criminal Code).32 The criminal prosecution can start after a legal manager’s suit, or by motion of the Court if the occupiers number more than ten (Art. 633, par. 2, Italian Criminal Code).33 However, Criminal Courts have often stated that the inability to pay for a house is a condition of necessity which justifies the occupation and excludes the crime.34 Prefects and police forces have the power to remove the occupiers. According to the interpretation of a recent law (Law decree 20 February 2017, no. 14, Art. 11), supported by a ministerial circular,35 prefects must postpone the eviction of those families who are in condition of clear and objective poverty or have the right to public social housing. The protection of these families, according to the circular, must be assured before issuing any order of forced eviction: therefore, the suggested administrative praxis that prefects should follow is to identify—in cooperation with mayors—public buildings where John, Orri, Sekela and Satoshi’s families could move into before ordering the forced eviction. If the delayed authorizations concern a request submitted by John, Orri, Sekela and Satoshi to inhabit some of the development project’s homes before the occupation, they can sue the public administration for being late in their answers. If the deadline set by law has already expired, they can ask administrative courts to order the public administration to reply (azione avverso il silenzio) and, if the concession of the houses depends solely on objective requirements laid down by law, they can also ask an administrative court to decide if they have the right to inhabit the houses. Moreover, they can sue the public administration for the pecuniary, personal and moral damages incurred as a result of the authorization delay. If the authorization comes from the land manager, John, Orri, Sekela and Satoshi can sue him for precontractual liability (Art. 1337, Italian Civil Code).36

Art. 633, par. 1, Italian Criminal Code: “Anyone who invades public or private lands or buildings, in order to occupy it or to make profits, is sentenced, after a lawsuit of the offended party, up to two years’ imprisonment or fined 103 euro to 1132 euro”. 33 Art. 633, par. 2, Italian Criminal Code: “The penalties will apply simultaneously and the prosecution will start automatically if the occupiers are more than five and one of them is clearly carrying weapons, or if the occupiers are more than ten, even if nobody is carrying weapons”. 34 See Corte di Cassazione, sez. II penale, 17 October 2014, no. 44363; Corte di Cassazione, sez. II penale, 12 October 2011, no. 36748, and Art. 54, par. 1, Italian Criminal Code that states: “There cannot be punishment of the person who has been forced to commit a crime by the need to save himself or someone else from an existing danger, which he did not voluntarily cause and which is not otherwise preventable, if the act is proportionate to the danger”. 35 Circolare 1 September 2017, no. 11001/123/111(1). Circolari amministrative are not binding outside the Ministry which adopted them. 36 Art. 1337, Italian Civil Code: “The parties, during the negotiations and while writing the contract, must behave in bona fide”. 32

210

2.2

M. D’Alberti et al.

Health Care

Together with other people from her neighborhood, Emanuela has organized a volunteer non-profit medical clinic in what appeared to be an abandoned building offering free services to irregular migrants who have no health insurance. Soon after, Syntech Corporation, the owner of the building, realizing that the market value of the building has increased since they acquired it, decides to sell it at a profit. Syntech would like Emanuela and her volunteers out of the building within a few days in order to sell it, and initiates an eviction action. Many people in the area are upset by this news. Emanuela defends. As observed in Q1, Emanuela can be considered an occupier of the building; therefore she is subject to the civil and criminal law consequences already analyzed. Syntech can surely file a property claim for eviction in the Civil Court; although it is unclear that said company is entitled to file a possessory action. In fact, Emanuela may prove that the company did not carry out any activity corresponding to the exercise of property or other rights in rem, and therefore that the company cannot be considered a possessor (Art. 1140, Italian Civil Code).37 However, Emanuela is liable for the damages that she and other occupiers may have caused to the building (e.g. demolishing the walls or ruining the roof, the windows or the doors). Following the reasoning in Q1, Syntech, which apparently abandoned the building, will probably struggle in providing evidence that the occupation has prevented it to benefit from the building. Therefore, Emanuela will not be liable for the occupation, at least until the Company does not show the purpose of using, selling or renting the building: in that case, Syntech will have to demonstrate that the occupation harmed its attempt to sell or rent the building, to use it in its activity, or to benefit from it in any other way. Emanuela and the other occupiers should be refunded for the extraordinary expenses they have incurred and receive compensation for any improvement existing at the time of the restitution of the building (Art. 1150, Italian Civil Code). The compensation is equivalent to the lesser of the increased value of the building and the costs which they have incurred. With respect to adverse possession, Emanuela and the other occupiers may acquire the property of the building solely after 20 years of continued possession and only if the Company did not carry out any act aimed at reaffirming its property right (Art. 1158, Italian Civil Code). Emanuela and the other occupiers are exposed to criminal prosecution for the violation of Art. 633, Italian Criminal Code. The criminal prosecution may start after a Company’s suit, or by motion of the Court in case the occupiers number more than ten (Art. 633, par. 2, Italian Criminal Code). In this case—as opposed to Sect. 2.1— Art. 1140, Italian Civil Code: “The possession is the power over a good which materializes in activities corresponding to the exercise of property or other rights in rem. It is possible to exercise the possession directly or via another person, who has the detention of the good”. 37

Meeting the Challenge of the Commons in Italy

211

there is not a condition of necessity that may justify the occupation and exclude the crime. Nonetheless, the Court could acknowledge the high moral value pursued with the occupation (taking care of migrants, for free) as a mitigating circumstance for the crime (Art. 62, par. 1, Italian Criminal Code),38 even though this happens quite rarely.39 In order for Emanuela and the other occupiers to benefit from such mitigating circumstance, the Court should state that the purpose of the occupation was to tackle a situation considered immoral or antisocial (the migrant’s condition) and that the majority of citizens deem this goal to be in compliance with moral and social attitudes (which would be likely in this case, given the local disdain for the eviction action). After the judgment ordering the occupiers’ eviction is rendered, prefects and police forces have the power to order the forced eviction, as observed in Sect. 2.1. Art. 11 of Legislative decree 20 February 2017, no. 14, lays down that prefects need to act preventively in order to avoid risks to public order, public security, public safety and public health. But this does not mean that prefects are subject to any obligation of identifying a different building to move Emanuela’s non-profit clinic before starting the eviction. However, in order to avoid social conflicts, there is a political tendency by mayors to preventing forced eviction of occupations aimed at supplying social services to citizens. Mayors generally act as mediators between occupiers and owners and tend to offer an alternative public building where occupiers can carry on their activity. Moreover, in this case Emanuela and the other occupiers may constitute an association and participate in public calls for the lease of public buildings. Since they provide a social activity for free, mayors can consistently lessen the rent of the lease, without incurring any administrative liability.40

2.3

Food

Marta, Mattias, and Madison, together with their families and neighbors, cultivate a communal garden on a vacant plot of land as a food source. Max Corporation, the owner of the plot of land, discovers the three families and tells them to leave. Max Corporation brings a claim against the three families for their removal and the removal of the food grown by the families on its land. In the present case, it is necessary to distinguish between two different hypotheses (A and B), because the period of the cultivation activity carried out by the defendants has not been specified in the proposed question.

Art. 62, Italian Criminal Code: “The crime is mitigated by the following circumstances, when they are not a constitutive element of the crime nor a special mitigating circumstance: 1) having acted to pursue particular moral or social value; . . .” 39 See Tribunale di Trento, 15 December 2005, no. 1279. 40 See Corte dei Conti, 18 April 2017, no. 77. 38

212

M. D’Alberti et al.

(A) Assuming that this activity has been carried out for at least 20 years, the cultivation of the land is an activity intrinsically corresponding to the exercise of the right of the landowner (“dominical right”). However, considering that in Italian case law cultivation of land per se is not unequivocally expressive of the farmers’ intention of possession, it is necessary that the material activity (the cultivation) is accompanied at least by clues allowing to deduce, albeit on a presumptive basis, that the activity is objectively performed uti dominus to the purpose of acquiring the ownership through adverse possession.41 Therefore, it would be sufficient to ascertain the continuous, peaceful, public, uninterrupted, unequivocal possession of the disputed area, as required by Article 1158 of the civil code, through testimonial depositions and documentations: this could demonstrate that the defendants hold the land as owners. In fact, by cultivating and improving the land, they have exercised eminent, undisputed and full domain opposed to the formal owner’s inertia. In addition to this objective element, the psychological element of possession (animus possidendi) is required for claiming ordinary adverse possession of the ownership of a property. This element should normally consist of the possessor’s intention to act as the owner, regardless of the subjective state of good faith, while taking into account only the willingness to dispose of the property as if it were his or her own.42 Nonetheless, in some circumstances, said psychological element could be deduced from continuous possession, if the activities, such as cultivation of land, are carried out in a way that corresponds to the exercise of property rights.43 Thus, the burden of proving the contrary is carried by Max Corporation.44 (B) In case the cultivation of the land has taken place for a period of less than 20 years, the plaintiff can propose an action named “rivendicazione” (Art. 948, par. 1, of Italian Civil Code),45 through which he can assert his property right in order to recover the land illegitimately owned by others.

2.4

Water (Rural)

Maya, Malik, and Mei depend on the water of Flumia, a nearby river. The three villagers together with other villagers in the area build aqueducts and an irrigation canal from the river to their respective homes and fields. After a few years, a private

41

See Corte di Cassazione, 12 November 2014, no. 24114; and 29 July 2013, no. 18215. See Tribunale di Torino, II, 19 September 2017. 43 See Cass., II, 10 July 2007, no. 15446 and Cass., II, 30 March 2006, no. 7500. 44 See Cass. no. 15145/2004, and Cass. no. 15755/2001. 45 Art. 948, par. 1, Italian Civil Code: “The owner can claim the good from anyone who owns or holds it and can continue the action even if the latter, after the request, has stopped, for his own reasons, to own or hold the good. In this case the defendant is obliged to recover it for the plaintiff at his own expense, or, failing this, to pay him the value, in addition to compensating the damage”. 42

Meeting the Challenge of the Commons in Italy

213

corporation diverts the water of the Flumia River. Soon after, Maya, Malik, and Mei realize that water no longer flows to the aqueducts and irrigation canal from the river. Maya, Malik and Mei sue. According to Italian Law, the outcome of Maya, Malik and Mei’s suit depends on the nature of the waters in question. Although Article 1 of Law no. 36/199446 states that all the surface and underground waters—even if not yet extracted—are public, and according to the Corte di Cassazione waters are presumed to be public, the Tribunale per le Acque Pubbliche (Italian special court for public water related cases) can declare specific watercourses to be private property if individuals or the public administration demonstrate that the watercourses do not satisfy public interests.47 If the Flumia River is public, the parties (Maya, Malik and Mei and the private corporation) have to obtain an administrative authorization to lawfully deviate a course of water. In fact, individuals can use public water only if authorized by a public administration; otherwise they cannot claim rights of any kind. The construction of irrigation canals and aqueducts is not relevant with respect to the case in point, unless it occurred prior to 1884 and is supported by a legal reason for using the waters.48 When authorizing individuals or companies to use public waters, administrations evaluate if the request is compatible with the environmental protection of waters: if private uses comply with the most rational utilization of waters and satisfy the emerging public interests.49 Amongst concurring requests, administrations favour the one that fits better with the characteristics and the quantitative and qualitative protection of waters. If concurring requests intend to catch water for the same destination, administrations select the one that better complies with environmental interests; if the concurring requests guarantee the same level of protection of environmental needs, administrations can evaluate economic and financial interests.50 In any case, new authorizations cannot harm existing ones. Moreover, Maya, Malik and Mei cannot ask for the application of Art. 1049 and 1050 of the Italian civil code (which recognize a special right to catch water for human, animal and irrigation needs), because these articles do not cover water rights granted by administrative authorizations. If the Flumia River is private, Maya, Malik, Mei and the private corporation may use waters according to Art. 909 and following of the Italian Civil Code, which state that riparian proprietors are the only ones allowed to catch water and sell it to whomever they want. The dispute between Maya, Malik, and Mei and the

46

Now Art. 144 of Legislative decree no. 152/2006. Corte di Cassazione, Sez. Un., 27 July 1999, no. 507; Corte di Cassazione, 11 January 2001, no. 315; Corte di Cassazione, 9 April 2012, no. 12998. 48 See Royal decree no. 1775/1933, Art. 2. 49 See Royal decree no. 1775/1933, Art. 7 and 8. 50 See Royal decree no. 1775/1933, Art. 9. 47

214

M. D’Alberti et al.

corporation will be solved by Tribunale ordinario (Italian ordinary civil court) applying Articles 912, 1049 and 1050 of the Italian Civil Code: the Court will evaluate the interests of both parties and the benefits they can derive from the use (irrigation or industry) of water, establishing compensation for the users that tolerate a reduction of their right. In any case, if Maya, Malik, and Mei cannot otherwise catch water at an affordable cost, they have the right to derive it from their neighbors in order to satisfy human and animal drinking needs, domestic uses and irrigation. However, they can catch only redundant water and they should pay the cost of water and the expenses of aqueducts and canals.

2.5

Water (Urban)

Jose, Jasmine, and Horatio are three friends that inhabit an apartment together in a city, Flumiapolis. Following a large increase in the price of water (200% in one year), the three friends fail to pay their water bills. After failing to pay their third bill, the water management cuts off their access to the water supply. Jose, Jasmine and Horatio sue. In Italy, water tariffs are set by water providers following a formula established by the Enti di governo d’ambito territoriale (Egato) and the Autorità di Regolazione Energia Reti e Ambiente (ARERA).51 Jose, Jasmine and Horatio can sue the water provider in administrative courts for the annulment of the new tariff if it is not consistent with Egato and ARERA’s principles. Italian water tariffs follow the increasing block tariff method, according to which payments vary more than proportionally depending on the quantity of water supplied, and apply principles of (marginal) cross-subsidization amongst uses, in favor of domestic customers. Therefore, nowadays the tariffs are not calculated with respect to the users’ income: consequently, the three friends cannot benefit from the tariff system. However, ARERA is currently working on directives and schemes that may help to reduce a user’s inability to pay (e.g. introducing rescheduling plans or instalment plans). The only subsidy in force which takes personal income into account is the bonus sociale idrico (D.P.C.M. 13 October 2016, Tariffa sociale del servizio idrico integrato, and ARERA, res. 897/2017/R/Idr). Therefore, if the tariff is lawfully established, Jose, Jasmine and Horatio can apply for it if they have an ISEE (Equivalent Economic/Financial Status Indicator) lower than 8107.50 euro

51

ARERA is the national independent regulator of water supply. It sets the formula of water tariffs. Egato is the local authority (regional or departmental) which chooses the provider, monitors its activity and establishes the tariffs according to the formulas given by ARERA. ARERA approves the tariffs set by local authorities, verifying that the formula was properly applied.

Meeting the Challenge of the Commons in Italy

215

(or 20,000 euro if they have four children or more). In that case, each of them will be allowed to consume 50 L per day free of charge. Jose, Jasmine and Horatio can also sue the water provider in civil court challenging the procedures followed by the water provider to cut off the service. In fact, cutting off water supply is only possible if the customer does not pay a sum equivalent to one year’s provision of the minimum quantity of water (50 L per day) and only if the company follows a specific procedure.52 Moreover, in Italy, the supply of a minimum quantity of water, equivalent to 50 L per day, cannot be cut off to poor customers, even if they are not able to pay their bills (see D.P.C.M. 29 August 2016, Disposizioni in materia di contenimento della morosità nel servizio idrico integrato). There is no indication so far on the level of poverty that allows this rule to be applied. In addition, the differences between this rule and the bonus sociale idrico are not clear: a possible interpretation could be that the prohibition of cutting off the supply operates also if the customers have not applied for the bonus. ARERA is now establishing a standard personal income level which corresponds to poverty and which allows benefitting from this provision. If this new regulation enters into force, Jose, Jasmine, and Horatio could probably sue the water provider for the restoration of the service.

2.6

Nature

Hamid, Heba, and their two children used to spend many weekends walking and playing in one of the few green areas at the outskirts of the city where they live. The land belongs to a private owner who lives in a small house near the lake. Corporation C acquires the green area and converts it into a members only country club. Hamid and Heba sue. A local environmental group also sues claiming access to what they consider a natural commons. In this case, as observed in Sect. 2.3, it is necessary to distinguish between two different hypotheses (A and B), given that the period of walking and playing activities carried out by the plaintiffs has not been specified in the question. (A) If these activities have been carried out for at least 20 years, this would mean that a public right of way has been acquired on the green area. This right is not only enjoyed by the owners of the land close to the area where walking and playing activities have been carried out but also by the local community.53 Our legal system offers the possibility to obtain a public right of way according to the scheme of adverse possession. The following conditions need to be fulfilled:

52

See D.P.C.M. 29 August 2016, Disposizioni in materia di contenimento della morosità nel servizio idrico integrato. 53 See Corte di cassazione, 29 April 1995, no. 4755; Corte di cassazione, 23 May 1995, no. 5637; Corte di cassazione, 20 June 1995, no. 6952.

216

M. D’Alberti et al.

1. widespread use of the area by an unspecified group of individuals, considered uti cives as general and multiple stakeholders, and not uti singuli. Therefore personal and exclusive interest to access the area is not enough; 2. objective suitability of the good to satisfy the aim of public interest pursued through the exercise of the public right of way; 3. continued and protracted exercise of the public right of way, needed to achieve the necessary period for the adverse possession.54 The plaintiffs also take advantage of the fact that the public right of way can be acquired—because of the adverse possession—even in the absence of permanent and visible structures destined to exercise the right. The fact that Corporation C acquires the green area and converts it into a members only country club does not impede the right of way, since the Corporation receives the land with the burden inherent to it: the transfer of the land implies, even without an expressed will, the transfer of the public right of way.55 With regard to the subjects entitled to sue, in addition to the local authority as a representative body of the community of citizens, any person or association could bring an action for the affirmation or protection of the public right of way. In addition, any association pursuing social solidarity goals of protection and promotion of environmental interests in the area could be entitled to sue in order to enforce “widespread interests”.56 (B) If, on the contrary, the period that the walking and playing activity took place was not for more than 20 years, Corporation C can bring an action57 pursuant to which it can assert its property right in order to recover the land, illegitimately owned by others.

2.7

Territory

Yellowriver is a small village sitting within a large and remote forest area. The government grants to Gold Masters Corporation permission to dig seeking for gold in order to develop a nearby mine. Aware of the high polluting risks of gold extraction to the nearby river, villagers erupt in protest and attempt to stop the project by legal means. Do they have any available action to protect the river— either as individuals or as an endangered community? Notwithstanding that this case concerns a considerable risk of pollution, the damages resulting from the search for gold have not arisen yet. Article 310 of

54

See Corte di cassazione, 9 July 2003, no. 10772. See Corte di cassazione. no. 17301/2006; no. 6680/1995. 56 See Corte di cassazione, II, no. 10772/2003. 57 Art. 948, Italian Civil Code. 55

Meeting the Challenge of the Commons in Italy

217

Legislative decree no. 152/200658 (Law on the environment) governs this situation and establishes the possibility to take action, according to the general principles of the law, for the annulment of administrative measures adopted in violation of environmental laws and also for the compensation of the damage incurred due to the delayed activation, by the Minister of the Environment and Protection of the Territory and the Sea, of precautionary prevention or containment measures in relation to environmental damages. In paragraph 2 of the same article,59 it is also established that appeal to the administrative court may be preceded by acts of opposition, filed or sent to the Ministry of the Environment and the Protection of the Territory and the Sea within 30 days from the notification, communication or full knowledge of the measure to be contested. This discipline is in accordance with supranational law, in particular with Article 191 of the Treaty on the Functioning of the European Union:60 activities in the environmental field, in fact, must be based on the principles of precaution and preventive action and on the principle of correction, as a priority, at source of the damages caused to the environment61 even in a situation where there is scientific uncertainty regarding the existence or the specific extent of the risk.62 Beyond the action in Court, an appeal to the Minister is provided as well. With respect to the subjects entitled to propose the appeal, Article 309, paragraph 1,63

58 Art. 310, par. 1, d. lgs. 152/2006: “The subjects referred to in Article 309, paragraph 1, are entitled to act, according to the general principles, for the annulment of the administrative acts and measures adopted in violation of the provisions of the sixth part of this decree and against the inertia of the Minister of the Environment and the Protection of the Territory and the Sea and for the compensation of the damage suffered due to the delayed activation, by the same Minister, of precautionary prevention or containment measures in relation to environmental damages”. 59 Art. 310, par. 2, d. lgs. 152/2006: “In the hypotheses referred to in paragraph 1, the appeal to the administrative judge may be preceded by act of opposition, filed at the Ministry of the Environment and the Protection of the Territory and the Sea or sent to its office by registered mail with a form of acknowledgment of receipt within thirty days from the notification, communication or full knowledge of the measure to be contested. In the event of inaction by the Minister, a similar opposition can be filed within the abovementioned deadline starting from the expiration of the thirtieth day following the deposit of the opposition to the Ministry of the Environment and the Protection of the Territory and the Sea”. 60 Art. 191, par. 2, TFEU: “Union policy on the environment shall aim at a high level of protection taking into account the diversity of situations in the various regions of the Union. It shall be based on the precautionary principle and on the principles that preventive action should be taken, that environmental damage should as a priority be rectified at source and that the polluter should pay. In this context, harmonisation measures answering environmental protection requirements shall include, where appropriate, a safeguard clause allowing Member States to take provisional measures, for non-economic environmental reasons, subject to a procedure of inspection by the Union”. 61 In this sense see Consiglio di Stato, IV, no. 3561/2017. 62 See Cons. St., IV, no. 1392/2017. 63 Art. 309, par. 1, d. lgs. 152/2006: “Regions, autonomous provinces and local authorities, even if associated, as well as natural or legal persons who are or could be affected by environmental damage or who have a legitimate interest in participating in the administrative procedure concerning

218

M. D’Alberti et al.

indicates, in addition to local authorities, also natural or legal persons. So the appeal can be promoted not only by individual citizens as residents in the district affected by the environmental impact of the excavation—because they are directly affected by environmental damage or because they have a legitimate interest in participating in the administrative procedure concerning the adoption of precautionary prevention or restoration measures—but also by holders of “widespread interests”, such as any association that pursues social solidarity goals in the area of protection and promotion of the quality of life and environment.

2.8

Culture

State funding to a nonprofit local theater is cut in response to austerity measures; as a result the theater will be sold to a private company that wants to operate the theater at a profit. Evgenia, Misha, and Katia are actors, and along with other concerned citizens that protest the sale and other workers, they occupy the theater, and continue the theater’s programming for the public through a combination of volunteer work and donations. The municipality brings suit to evict against Evgenia, Misha, Katia, and the other actors. Evgenia, Misha, and Katia have breached Art. 633, par. 1, Italian Criminal Code, and are exposed to criminal prosecution, which will commence by motion of the Court because the occupied building is a public property (Art. 639-bis, Italian Criminal Code)64 and the occupiers presumably number more than ten (Art. 633, par. 2, Italian Criminal Code). As shown in Sect. 2.2, the occupiers may hope that the Court will follow a particular interpretation—something that happens quite rarely65—which considers the high moral value pursued by the occupation (in this case, continuing the theater’s programming for free) as a mitigating circumstance for the crime (Art. 62, par. 1, Italian Criminal Code). However, this solution seems unlikely in the case in point (more than in Q2), because the Court should state that a public policy (selling a theater to a private entity and operating the theater at a profit) is a situation considered immoral or antisocial and that this opinion is consistent with moral and social attitudes of the majority of citizens.

the adoption of precautionary prevention or restoration measures provided by the sixth part of this decree may submit to the Minister of the Environment and the Protection of the Territory and the Sea, depositing them at the Prefectures—Government territorial offices, complaints and comments, accompanied by documents and information, concerning any case of environmental damage or imminent threat of environmental damage and request the public intervention to protect the environment in accordance with the sixth part of this decree”. 64 Art. 639-bis, Italian Criminal Code: “When the behaviors laid down in art. 631, 632, 633, 636, concern public waters, public lands, or public buildings or waters, lands and buildings devoted to public use, the prosecution starts by motion of the Court”. 65 See Tribunale di Trento, 15 December 2005, no. 1279.

Meeting the Challenge of the Commons in Italy

219

The owner of the theater (the municipality or the State) can file a property or a possessory claim before the Civil Court. As for damages, the solution is similar to the one provided in Sect. 2.1. Adverse possession does not apply to public goods; therefore the occupiers cannot acquire the property of the theater (not even after 20 years of uncontested occupation).66 As in Sects. 2.1 and 2.2, the eviction is ordered by prefects and police forces. Following Sect. 2.2, prefects do not have a specific obligation to identify a different building to relocate the occupation before the forced eviction. However, mayors often try to prevent forced evictions, offering alternative public buildings where occupiers can carry on their activities. When the public administration formalizes its intention to sell the theater, Evgenia, Misha, and Katia cannot sue for the annulment of the measure because they do not have a specific legal position to be protected by judges. However, this legal position is attributed by law to collective associations representing specific common interests: they therefore can sue the public administration in administrative courts challenging the legality of the sale.67 Variation Assume that the actors obtain permission to stay and to use the theater provided that they run it as a commons in the interest of culture and future generations. What legal form should they use to this purpose? Evgenia, Misha, and Katia should constitute an association or a foundation. Under Italian administrative law, a tender procedure for awarding a lease is usually necessary. Both the legal forms (association or foundation) are allowed to participate in public procedures aimed at awarding the lease of public buildings. Since the association or the foundation provides a social activity for free, mayors can consistently lessen the rent of the lease.68

2.9

Climate

Diletta, Flavio, and Antonella became aware of the reality of climate change when their school teacher decided to work on reading materials that were circulated at the time of the 2015 Paris Agreement on Climate Change. Although just turned 18 years old, all the three of them took the information quite seriously and started to worry about the gloomy expectations they learnt about: dangerous rise in the global temperature, water scarcity, droughts, forest fires, possible displacement of populations, etc. After the scandal involving the Popcar Corporation, concerning the manipulation of computer system for the control of emission in cars, Diletta,

66

Art. 822 and followings, Italian Civil Code and Corte di Cassazione, 11 May 2009, no. 10817. E.g. Italia Nostra; see Consiglio di Stato, 22 December 2014, no. 6195. 68 See Corte dei Conti, 18 April 2017, no. 77. 67

220

M. D’Alberti et al.

Flavio, and Antonella are struck by the quite feeble sanctions inflicted to the car manufacturer—not only in their jurisdiction. For this reason, Diletta, Flavio, and Antonella decide to take action in the interest of future generations. They sue their government and the global corporation Popcar. It is necessary to analyze two different aspects: (A) the plaintiffs want to take action against the sanctions inflicted by government to the car manufacturer and (B) the plaintiffs want to sue the corporation in order to obtain compensation for damages resulting from the infringement of consumer rights. (A) Suing the Government because of the feebleness of the sanctions inflicted on the corporation is not an easy task. Diletta, Flavio and Antonella could take action before an administrative court challenging the sanctions inflicted, provided they succeeded in providing conclusive proof that they were directly affected by the environmental damage or that they had a legitimate interest in participating in the administrative procedure concerning the adoption of the damage restoration measures.69 They should also give decisive proof that the sanctions are not proportionate to the significance of the infringement of the norms established by the Law on the environment. Based on these proofs, the administrative court could decide that the sanctions inflicted were not adequate to prevent the corporation from reiterating the infringement and to substantially reduce the risks for the environment. For these reasons, the sanctions inflicted could be considered in violation of the norms contained in the Law on the environment.70 Consequently, the court could annul the sanctions and remand the decision to the competent administrative agency. The court—having jurisdiction on the merits in cases of administrative sanctions71— could also modify the amount of said sanctions. The same action may be taken by environmental associations.72 (B) Considering that the environment is a public good that is not susceptible to individual, indivisible, non-attributable, unitary, multi-faceted appropriation, the legal system indicates some hypotheses where groups of individuals become occasional representatives of widespread interests and are entitled to take a legal action.73 Therefore, collective interests can be protected through “class action”: each class member (also through associations to which he or she gives mandate or committees in which he or she participates) can take action to establish liability for the environmental damage and to ask compensation for such damage.74

69

Art. 310 of Legislative decree no. 152/2006—Code on the environment. See Art. 310, cited. 71 See Art. 134, par. 1, c), Legislative decree no. 104/2010. 72 Art. 18, par. 5, Law no. 349/1986: “The associations identified on the basis of article 13 of the present law can intervene in judgments for environmental damage and take action for the annulment of illegitimate administrative measures”. 73 See Cons. St., V, no. 3118/2015. 74 Art. 140-bis, par. 1, Legislative decree no. 206/2005. 70

Meeting the Challenge of the Commons in Italy

221

References Boscolo E (2012) Le Politiche Idriche Nella Stagione Della Scarsità: La Risorsa Comune Tra Demanialità Custodiale, Pianificazioni e Concessioni. Giuffrè Editore, Milano Caporale F (2017) I Servizi Idrici. Dimensione Economica e Rilevanza Sociale. Franco Angeli Edizioni, Milano Carapezza Figlia G (2008) Oggettivazione e Godimento Delle Risorse Idriche. Contributo a Una Teoria Dei Beni Comuni. Edizioni Scientifiche Italiane, Napoli Casini L (2016) Ereditare Il Futuro. Dilemmi Sul Patrimonio Culturale. Il Mulino, Bologna D’Alberti M (2018) Commons and land grabbing. In: Fiorenza K, Benvenuti S, Caporrino V, Cerchia R, De Luca A, Di Micco D, Pastena A, Saccomanno P, Zarro M (eds) Annuario Di Diritto Comparato e Di Studi Legislativi. Edizioni Scientifiche Italiane, Napoli, pp 25–38 Desideri C, Fonderico F (1998) I Parchi Nazionali per La Protezione Della Natura. Giuffrè, Milano European Court of Human Rights (2014) Affaire Valle Pierimpiè Società Agricola SPA c. Italie. 23 September 2014. https://bit.ly/3QAvMSW Giannini MS (1963) I Beni Pubblici. Bulzoni, Roma Giannini MS (1985) Diritto Pubblico Dell’economia. [1977]. Il Mulino, Bologna Lalli A (2015) I Beni Pubblici. Imperativi Del Mercato e Diritti Della Collettività. Jovene, Napoli Mattei U (2011) Beni Comuni. Un Manifesto. Laterza, Roma Mattei U, Quarta A (2014) L’acqua e Il Suo Diritto. Ediesse, Roma Mattei U, Reviglio E, Rodotà S (eds) (2007) Invertire La Rotta. Idee per Una Riforma Della Proprietà Pubblica. Il Mulino, Bologna Mattei U, Reviglio E, Rodotà S (eds) (2010) I Beni Pubblici. Dal Governo Democratico Dell’economia Alla Riforma Del Codice Civile. Accademia Nazionale dei Lincei, Roma Montanari T (2015) Privati Del Patrimonio. Einaudi, Torino Pugliatti S (1964) La Proprietà e Le Proprietà [1954]. In: Pugliatti S (ed) La Proprietà Nel Nuovo Diritto. Milano, Giuffrè Editore Rodotà S (2012) Il Diritto Di Avere Diritti. Laterza, Roma Sassen S (2013) Land grabs today: feeding the disassembling of national territory. Globalizations 10(1):25–46. https://bit.ly/3xviL4c Sassen S (2014) Expulsions: brutality and complexity in the global economy. Belknap Press, Cambridge Volterra E (1980) Istituzioni Di Diritto Privato Romano. [1967]. La Sapienza, Roma

Property Meeting the Challenge of the Commons in The Netherlands Björn Hoops

Abstract In different branches of the Dutch legal system, there are categories and rights that serve to protect specific commons through different methods. Sunlight and air (including wind for windmills) can be freely used by everyone. Waters in the sea and rivers are things under private law, but do not have any owner until water is extracted. The seabed of the territorial sea and the Wadden Sea are State-owned and cannot be alienated. State-owned markets, schools, and swimming pools are public things. The public may claim access to private roads. Certain privately owned forests are maintained, in return for tax benefits, in the public interest. Health care, food, education, housing, and environmental protection are protected commons. Nationalisation requires an expropriation unless the owner is willing to sell: property may be expropriated only if in the public interest and the owner is compensated. In private law, there are specific grounds on which a non-owner can claim access to somebody else’s land.

1 Questionnaire: Part I 1.1

What Legal Categories in Your Legal System May More Closely Correspond to the Notion of the Commons as Deployed in the Introduction?

There is no overarching category of tangible or intangible goods that satisfy a real or fundamental need outside of market exchange and thus need to be protected. The “public interest” (algemeen belang), which may justify infringement of property rights, covers the creation or preservation of commons, but also includes other goals.

B. Hoops (✉) University of Groningen, Groningen, The Netherlands e-mail: [email protected] © The Author(s), under exclusive license to Springer Nature Switzerland AG 2023 U. Mattei et al. (eds.), Property Meeting the Challenge of the Commons, Ius Comparatum - Global Studies in Comparative Law 59, https://doi.org/10.1007/978-3-031-25218-1_7

223

224

B. Hoops

In the different branches of the Dutch legal system, there are legal categories and rights that serve to protect specific commons through different methods. There are goods that do not qualify as things under private law and cannot be subject to property rights. Sunlight and air can be freely used by everyone.1 As the Netherlands is famous for its windmills, it should come as no surprise that owners of windmills may have a “right to catch wind”, which obliges the owners of surrounding properties not to disrupt the wind flow.2 The water in the sea and the water in a river are things under private law, but do not have any owner (res nullius) until the water is extracted (appropriation).3 Subject to public law, anyone can make reasonable use of this water. Art. 5:40 of the Dutch civil code (Burgerlijk wetboek; BW) specifically provides for this right with respect to agricultural uses. The seabed of the territorial sea and the Wadden Sea are statedowned and cannot be alienated.4 In public law, state-owned facilities, such as markets, schools and swimming pools, are public things (openbare zaken).5 Subject to limitations entrenched in public law, anyone may make use of these facilities. There is specific legislation that protects goods that may constitute commons. In the following paragraphs, I sketch examples of such protective legislation. However, I do not purport to provide a complete account. The authenticity, beauty, and aesthetics of historical buildings, for instance, are protected under the Monument Act (Monumentenwet). The Minister of Education, Culture, and Science may declare things to be protected monuments. Based upon this administrative decision, the owner will have to maintain the building and preserve its outward appearance. The public may claim access to private roads. Under the Roads Act (Wegenwet), privately owned roads are deemed open to the public if they have been physically open for 30 years or, subject to the municipality’s consent, designated as open to the public by the private owner. Once the road is open to the public, it will only become a private road again if it has not been physically open to the public for 30 years or if the municipal council decides to designate it as a private road. Privately owned forests are not open to the public. However, the owner of the forest may apply for their property to be recognised as a property whose natural beauty needs to be preserved under the Natural Beauty Act (Natuurschoonwet). The owner will then have to maintain the property in the public interest and keep it open to the public. There is a strong incentive for owners to do this because they will receive substantial tax benefits in return. Also, health care, food, education, housing, and environmental protection are commons protected by specific legislation. They are not enshrined in legal

1

Hennekens (2001), pp. 18 and 55 et seq. Andreae (1919), pp. 431–42. 3 Hennekens (2001), pp. 21 and 38. 4 Art. 5:25 BW. 5 Hennekens (2001), pp. 16 and 160; and Bröring and De Graaf (2019), pp. 565 et seq. 2

Property Meeting the Challenge of the Commons in The Netherlands

225

categories, but social security legislation and environmental law ensure access to them to a large extent, through minimum allowances, the attachment-exempt threshold, insurances, housing benefits, public schools and universities, and environmental standards.

1.2

Is There Today or Was There in the Past a Concept of the Commons in Your Legal System? In the Affirmative, Is It Statutory, Jurisprudential, Doctrinal or Customary?

With one exception, the design of commons as a legal concept never went beyond the doctrinal and judicial interpretation of the legislation discussed under Sect. 1.1 and other legislation protecting goods that are effectively regarded as commons. In the past, there was a doctrinal discussion about whether things that perform a public function, such as roads, could be alienated or were extra commercium.6 Today, however, there is no such discussion or category (except for the seabed of the territorial sea and the Wadden Sea, which are state-owned and cannot be alienated).

1.3

Is the Commons Today a Topic of Academic Debate in Your Legal System – and in the Affirmative in What Context?

I am not aware of any legal debate in the Netherlands about the commons as a single legal category comprising all goods that satisfy a real or fundamental need outside of market exchange. However, there are debates about the legislation described under Sect. 1.1 and whether they sufficiently preserve the commons that they are meant to protect.

1.4

Is There Any Kind of Public Property in Your Legal System That Is Absolutely Not Alienable?

The Dutch Civil Code allows for the alienation of any kind of asset owned by a public body. The only property that can never be alienated is the seabed of the

6

Hennekens (2001), p. 17.

226

B. Hoops

territorial sea and the Wadden Sea. Art. 5:25 BW stipulates that the state is the owner thereof.7

1.5

Are There Remedies in Your Legal System for Someone to Challenge in Court a Government that Decided Privatization of the Commons?

A public body’s decision to dispose of an asset is a juridical act in private law and no administrative decision. Therefore, adversely affected persons cannot bring an action before the administrative courts.8 They could challenge the juridical act if it constitutes abuse of right,9 which is very unlikely to be the case, or if the disposal is unlawful because it is contrary to a provision in public law.10 It may be more fruitful to challenge administrative decisions accompanying the privatisation of publicly owned assets. A privatisation of land, for instance, typically leads to a change of the use of the land. In order for the new use to be lawful, the municipality in the concerned area would have to change its zoning plan (bestemmingsplan). This change can be challenged with the highest administrative court in the Netherlands (Judicial Division of the Council of State; Afdeling bestuursrechtspraak van de Raad van State). However, the change of the land use is subject to a very limited judicial review because the municipal council enjoys wide discretion.11 Also, the new owner needs a permit to erect buildings on the land.12 Opponents of the privatisation may want to challenge this permit. This system will stay the same under the Environment Act (Omgevingswet), which will come into force on 1 July 2023.13

7

Hennekens (2001), pp. 20 et seq. ABRvS, Judgment of 16 April 2014, ECLI:NL:RVS:2014:1334; and Bröring and De Graaf (2019), pp. 168 et seq and 563 et seq. 9 Art. 3:13 BW. 10 Art. 3:14 BW. 11 Hoops (2017), pp. 226 et seq. 12 Art. 2.1(1) of the General Provisions of Environmental Law Act (Wabo; Wet algemene bepalingen omgevingsrecht). 13 See, amongst others, Art. 2.4 and 5.1 of the Environment Act. 8

Property Meeting the Challenge of the Commons in The Netherlands

1.6

227

Are There Remedies in Your Legal System for Someone to Challenge in Court a Government That Decided Nationalization of the Commons?

Nationalisation requires an expropriation unless the owner is willing to sell the property. According to Art. 14(1) of the Dutch Constitution, property may only be expropriated in the public interest and is subject to the payment of compensation. Art. 1 of the First Protocol to the European Convention of Human Rights (“ECHR”) stipulates that a person may only be deprived of possessions in the public interest. The Expropriation Act concretises these requirements. The Crown is generally the state body that takes the administrative decision to expropriate property under the Expropriation Act, mostly on the basis of a preceding planning decision. A person with a legitimate interest (belanghebbende) in terms of Art. 1:2 of the General Administrative Law Act (Algemene wet bestuursrecht; Awb) can lodge an appeal against the planning decision.14 The Crown tests the expropriation as to whether it would serve the public interest and whether it would be urgent, necessary, and proportionate.15 In the proceedings before the civil courts that follow the expropriation decision of the Crown, the courts review the application of those criteria by the Crown.16

1.7

To What Extent Private Property Is Considered a Fundamental Right in Your Legal System, and What Other Constitutional Rights Could Defeat it in a Balancing Test?

The protection of property as a fundamental right in the Netherlands is based upon both an international treaty and the Constitution (Grondwet; Gw). Art. 1 of the First Protocol to ECHR (Art. 1 P1 ECHR) reads as follows: Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law. The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.

14

Art. 8:1 Awb. Hoops (2017), p. 196. 16 Hoops (2017), pp. 252 et seq. 15

228

B. Hoops

Art. 1 P1 ECHR has direct effect in the Netherlands.17 Art. 14 Gw provides as follows: (1) Expropriation may take place only in the public interest and on prior assurance of full compensation, in accordance with regulations laid down by or pursuant to Act of Parliament. (2) Prior assurance of full compensation shall not be required if in an emergency immediate expropriation is called for. (3) In the cases laid down by or pursuant to Act of Parliament there shall be a right to full or partial compensation if in the public interest the competent authority destroys property or renders it unusable or restricts the exercise of the owner’s rights to it. Art. 14 Gw merely provides a negative guarantee of property because this provision subjects the exercise of state power to certain restrictions, but does not positively affirm property as a fundamental right protected under the Constitution.18 However, this negative guarantee sufficiently implies the recognition of property as a fundamental right.19 Subject to the payment of full compensation and on the basis of an Act of Parliament, property in the Netherlands may be expropriated for virtually any public benefit, including the protection of other fundamental rights.20 To protect other fundamental rights the Dutch legislator has introduced various legislative restrictions to property or statutory bases for administrative regulations limiting property rights. Tenancy law and environmental law, to name but two legal fields, provide many examples of such restrictions. Such restrictions in the public interest are generally deemed proportionate and, therefore, lawful. Where a restriction imposes an individual and excessive burden upon a holder of property rights, the principle of proportionality or the principle of égalité devant les charges publiques (equality of citizens before charges levied by the state) entails that the state will have to pay compensation for the excessive burden.21 A 1991 judgment of the Dutch Supreme Court (Hoge Raad; HR) provides an example. The state prohibited farmers from feeding slaughterhouse waste or food waste to their pigs to prevent an outbreak of swine fever. This prohibition brought farmers who fed only such waste to their pigs to the brink of bankruptcy. For this reason, compensation was awarded to such farmers.22 17

Art. 93 Gw; Barkhuysen and Van Emmerik (2005), p. 30. Elzinga et al. (2014), p. 437. 19 Ministerie van Binnenlandse Zaken (1969), pp. 85 et seq. Differing: Asser/Velten, Van & Bartels 5 2017/14; and Peters 2013. They state that although Art. 14 Gw recognises the importance of property, Art. 14(1) Gw only protects the fundamental right to fair compensation upon expropriation. 20 See Chapter 4 in Hoops (2017). 21 ABRvS, Judgment of 8 November 2006, ECLI:NL:RVS:2006:AZ1762, para 2.6. Cf. Tjepkema (2010), pp. 355 et seq; and Sanderink (2015), pp. 315 et seq. 22 Hoge Raad, Judgment of 18 January 1991, ECLI:NL:HR:1991:AC4031. 18

Property Meeting the Challenge of the Commons in The Netherlands

1.8

229

Private Property Is an Institution Aimed at Allowing Exclusion from Land. Is There Any Limit to Such a Power of the Owner to Exclude Justified by a Right of Access of the Private Non-Owner?

In private law, there are specific grounds on which a non-owner could claim (temporary or permanent) access to somebody else’s land. For example, Art. 5:56 BW obliges the owner to tolerate the use of property by a non-owner for the improvement of the non-owner’s property. More general grounds can be found in the doctrine on abuse of right and tort law. Art. 3:13(2) BW stipulates that an owner abuses their right where the right is exercised only to harm another person, where the right is exercised for another goal than for which it has been conferred, or where it would be unreasonable to exercise the right because the harm done to other interests is disproportionately severe in relation to the owner’s interest in exercising the right. The traditional example is a home that extends onto somebody else’s land by a few centimetres. For the owner to demand the demolition of the unlawfully built part of the home would probably constitute abuse of right because it would disproportionately affect the non-owner’s interest, in particular their right to home.23 A nuanced rule on this issue has been introduced in Art. 5:54 BW. In tort law, a non-owner’s emergency situation may justify infringing property rights. Also, Art. 6:168 BW stipulates that a court may decline to order an injunction against an on-going unlawful act, such as the infringement of a property right, if the unlawful act serves a public interest of great importance. In addition, the owner will have to respect rights granted to a non-owner under public law.24 Refer to Sect. 1.1 for examples.

2 Questionnaire Part II 2.1

Housing

John, Orri, Sekela and Satoshi, desperate to find a home at an affordable cost, together with their families (including several children) inhabit homes in a development project, suspended due to delayed authorizations. The four friends and their families work on both the buildings and the land to enhance their living conditions (for instance, by painting the walls and adding a little garden). After a couple of months, the legal manager of the land discovers the four families and attempts to remove them. The families refuse to leave and the manager brings a claim against them.

23 24

Hoge Raad, Judgment of 17 April 1970, ECLI:NL:HR:1970:AC5012. Art. 3:14 BW.

230

B. Hoops

This case takes us back to an intriguing chapter of Dutch legal and economic history. After the Second World War there was a severe shortage of (affordable) housing in the Netherlands, particularly in the metropolitan areas. Taking possession of someone else’s vacant building and living in that building against the owner’s will became necessary for a lot of people to have a roof above their heads. This phenomenon is called kraken in Dutch. Kraken does not constitute criminal trespass under Art. 138 of the Penal Code (Wetboek van Strafrecht; Sr)25 if the building has not been in use for one year or more.26 As the shortage of housing diminished, however, attitudes within society changed. In 2010, Parliament (Staten-Generaal) adopted Art. 138a of the Penal Code under which kraken is a criminal offence punishable with up to one year in prison. As they have only been living in the building for a couple of months, John, Orri, Sekela, and Satoshi thus commit a criminal offence under both Art. 138a and 138 of the Penal Code. As is demonstrated in the next two subsections, the owner can obtain an eviction order that can only be suspended under very narrow conditions. Housing law and social security law, however, assist John, Orri, Sekela, and Satoshi in finding affordable housing. An acquisition by (extinctive) prescription on the basis of Art. 3:105 and 3:306 BW, which requires possession during a period of 20 years, is not possible because the legal manager demanded that they leave the land after “a couple of months”. Note that I do not discuss the power of the police to order an eviction under Art. 551a of the Criminal Procedure Code (Wetboek van Strafvordering) or other similar powers of the municipality under administrative law.27

2.1.1

Eviction Order or No Eviction Order: Balancing the Right to Ownership Against the Right to Home

The company can file for an eviction order with the courts competent to decide on private law matters. This action is based upon the basic norm of Dutch tort law, Art. 6:162 BW.28 The owner, in principle, has the right to use or not to use the property as s/he pleases and to exclude others from using it.29 As John, Orri, Sekela, and Satoshi live in the building without any right, contractual or otherwise, to live in the vacant buildings, they, in principle, commit an unlawful act in terms of Art. 6:162(2) BW.30 Therefore, the company can, in principle, obtain appropriate relief against the unlawful act in the form of an eviction order.

25

Hoge Raad, Judgment of 2 February 1971, ECLI:NL:HR:1971:AB3474. Van Gemert et al. (2012), p. 198. 27 Moné and Eeken (2010). 28 Moné and Eeken (2010). 29 See, for instance, Rechtbank Amsterdam, Judgment of 29 January 1992, ECLI:NL: RBAMS:1992:AK0455. 30 Moné and Eeken (2010). 26

Property Meeting the Challenge of the Commons in The Netherlands

231

Under particular circumstances, the owner may not be able to obtain an eviction order.31 In the heydays of kraken, in the 1970s and 1980s, some lower courts developed very nuanced criteria for assessing whether the actions of occupiers like John, Orri, Sekela, and Satoshi were unlawful in terms of the predecessor of Art. 6: 162(2) BW32 or, alternatively, whether the owner was abusing the right of ownership (see Art. 3:13 BW).33 They balanced the owner’s property right and the occupier’s right to home,34 which is protected under Art. 8 ECHR and Art. 12 Gw. A very instructive case decided by the District Court (Rechtbank) of Middelburg in 1980 evolved around a mother of three children who had been the victim of domestic violence. The family lived at a home for such victims. Her applications for housing were dismissed. The children were doing badly at school. It was only after this development that she decided to take possession of an apartment that had been vacant for less than six months. The apartment had previously formed part of the Dutch government’s social housing programme. The owner had bought it in order to sell it to a commercial party to make a profit. The owner filed for an eviction order. The District Court considered that kraken was not unlawful if the right of ownership was exercised in a socially unacceptable manner and the apartment was gekraakt in a socially acceptable manner. The exercise of the right of ownership would only be socially unacceptable under certain (cumulative) conditions. First, there had to be a great number of people waiting for housing. Secondly, the apartment had been vacant for at least six months. Thirdly, the apartment had formed part of the social housing sector and it was the owner’s intention to sell the apartment to a commercial party. These factors weaken the position of the owner. There also need to be factors that strengthen the position of the occupier or, in other words, make the occupation socially acceptable. First, the occupier must act like a good tenant and, in particular, pay the rent. Secondly, the occupier’s applications for housing would not be successful. Thirdly, the occupier would leave the apartment after the sale of the apartment to a party who wishes to live in the apartment.35 The District Court eventually granted the eviction order because the apartment had been vacant for less than six months. However, had the apartment been vacant for more than six months, the right to home would have outweighed the right of ownership. On the basis of this judgment, John, Orri, Sekela, and Satoshi would only be protected under very narrow conditions that concern the housing market in general, the conduct of the owner, and the economic situation and conduct of the occupiers. Concerning the state of the housing market, a significant number of people are not 31

Moné and Eeken (2010). See, for example, Rechtbank Middelburg, Judgment of 24 December 1980, ECLI:NL: RBMID:1980:AC7089. 33 See, for instance, Rechtbank Amsterdam, Judgment of 29 January 1992, ECLI:NL: RBAMS:1992:AK0455. 34 See, for example, Rechtbank Middelburg, Judgment of 24 December 1980, ECLI:NL: RBMID:1980:AC7089; Rechtbank Amsterdam, Judgment of 29 January 1992, ECLI:NL: RBAMS:1992:AK0455; and Rechtbank Alkmaar, Judgment of 13 November 1986, WR 1987, 20. 35 Rechtbank Middelburg, Judgment of 24 December 1980, ECLI:NL:RBMID:1980:AC7089. 32

232

B. Hoops

able to find affordable housing. The facts of the case do not elaborate on the state of the housing market. Therefore, it is uncertain whether John, Orri, Sekela, and Satoshi would meet this criterion. Concerning the conduct of the owner, the owner must have left vacant for at least six months a building that used to be available as affordable housing for low-income tenants and must intend to sell the building to a party that is not likely to rent it out at affordable prices. The facts of the case suggest that the building has never been rented out to tenants and that the owner does not intend to sell it. The courts are thus likely to grant an eviction order. Concerning the situation of John, Orri, Sekela, and Satoshi, they need to establish that they would not be able to find affordable housing. The facts of the case do not indicate whether their kraken was necessary to have a roof above their heads. Given the assistance provided by the Dutch government, which is set out below, it is unlikely that they do not have any other choice but to take possession of the building of the private company. Even if they had no other choice, they would still have to pay the rent, which John et al do not seem to do, and act as “good tenants”. Moreover, they would have to leave the house once there is a new owner who wants to use the building. This means that even if they met all requirements, their protection would only be temporary. It should be noted that since this judgment in 1980 the acceptance of kraken in the Netherlands has decreased. It is therefore more likely that the criteria for protecting occupiers have become stricter rather than more lenient.

2.1.2

The Suspension of an Eviction Order

Under Art. 438 of the Civil Procedure Code (Wetboek van Burgerlijke Rechtsvordering), John et al can apply for a suspension of the eviction order. The courts will only grant a suspension of the eviction order where the eviction would result in an emergency situation.36 Such an emergency situation will not occur where John et al can find provisional accommodation with other people or institutions until they can find appropriate housing.37 It seems that only if the eviction necessarily resulted in homelessness, would John et al succeed in obtaining a suspension of the eviction order.

2.1.3

Improvements

To the extent that improvements are connected to the building or the ground in such a way that they seem to be intended to stay there permanently, the building’s owner also becomes the owner of the improvements through accession, Art. 5:20(1)(e) BW.

36

Hoge Raad, Judgment of 22 April 1983, ECLI:NL:HR:1983:AG4575, para 3.2. Gerechtshof ‘s-Hertogenbosch, Judgment of 22 December 1981, para 10, as confirmed by: Hoge Raad, Judgment of 22 April 1983, ECLI:NL:HR:1983:AG4575, para 3.3. 37

Property Meeting the Challenge of the Commons in The Netherlands

233

However, assuming that they are (bad faith) possessors of the house, John et al can exercise a ius tollendi and remove the improvements, art. 3:123 BW. If they are not possessors, an analogous application of the right of tenants to remove improvements may be the solution, art. 7:216(1) BW. Otherwise, John et al may be able to bring a claim against the building’s owner on the basis of unjust enrichment, Art. 6:212 BW. To the extent that the improvements are not permanently connected to the building or the ground, John et al remain the owner of the improvements and can claim them back.

2.1.4

Assistance in Finding Adequate Housing

Dutch institutions help John et al find affordable housing in various ways. One instrument is making available housing to low-income tenants. There are public housing corporations in larger Dutch cities that offer affordable apartments for which they can ask no more than EUR 763.47 per month (in 2022, excluding electricity, gas, and other services). These corporations have to rent out more than 80% of their apartments to households earning no more than EUR 45,014 per annum (in 2022). Another instrument is subsidising living expenses, in particular the payment of the rent. Dutch citizens, EU citizens that have been residents in the Netherlands for five years and other lawful residents may have a right to at least a basic allowance (bijstandsuitkering), which amounts to EUR 1,091.71 per month for single persons aged 21 or older (in 2022, including a vacation supplement of EUR 54.59). Single persons earning no more than EUR 33,400 per annum can apply for the rent subsidy (huurtoeslag) if the rent paid for the apartment does not exceed EUR 763.47. One example: A single person earning EUR 15,000 per annum would receive EUR 307 per month for an apartment for which the tenant pays EUR 600 (including utilities) per month. It may be argued, of course, that all this assistance is insufficient for John et al to rent a home. However, as can be deduced from the judgment of the Middelburg court, this will only be relevant if a large group of people struggle to rent a home, which is not the case at the moment. Dutch legislation also gives the municipalities means to combat the shortage of housing in order to ensure the availability of affordable housing. The original Vacancy Act (Leegstandswet), which was adopted in the heydays of kraken, provided that the mayor and the members of the municipal executive (College van burgemeester en wethouders; hereinafter the municipal executive) could make use of vacant buildings for housing purposes. According to Ex-Art. 40 of the Housing Act (Huisvestingswet), the municipal executive could require the owner of a vacant building to make the building available for housing purposes for not more than 10 years if this was necessary for a balanced and just distribution of housing.38 The Judicial Division of the Council of State (Afdeling rechtspraak van de Raad van State) ruled in 1988 that the municipal executive could generally exercise this power

38

Dozy and Jacobs (1999), p. 355.

234

B. Hoops

if compared to the situation where it is not exercised an administrative decision provided more people with a home. However, the municipal executive should not make extensive use of this power and should first negotiate with the owner.39 Today, the municipal executive no longer has this power. The current Art. 5(1) of the Vacancy Act provides for the discretionary power of the municipal executive to recommend a certain tenant to the owner of a building that has been vacant for more than 12 months. The recommendation is binding upon the owner unless it finds another tenant within three months.

2.2

Health Care

Together with other people from her neighborhood, Emanuela has organized a volunteer non-profit medical clinic in what appeared to be an abandoned building offering free services to irregular migrants who have no health insurance. Soon after, Syntech Corporation, the owner of the building, realizing that the market value of the building has increased since they acquired it, decides to sell it at a profit. Syntech would like Emanuela and her volunteers out of the building within a few days in order to sell it, and initiates an eviction action. Many people in the area are upset by this news. Emanuela defends. Note that I do not discuss the power of the police to order an eviction under Art. 551a of the Criminal Procedure Code (Wetboek van Strafvordering) or other similar powers of the municipality under administrative law.40

2.2.1

Abuse of Right or Emergency Situation

Such a case has never reached the Dutch courts. It is therefore difficult to predict the outcome of such proceedings. However, the points of departure that apply to the case on housing also seem to apply here. Syntech can file for an eviction order, relying upon its right of ownership. Syntech, in principle, can decide not to use the building and to exclude Emanuela and her fellow volunteers from using the building. As Emanuela et al make use of the building without any right, contractual or otherwise, to operate a clinic, they, in principle, commit an unlawful act in terms of Art. 6:162 (2) BW. Syntech can seek appropriate relief in the form an eviction order. Two routes may provide solace. Emanuela could state that Syntech abuses its right of ownership, which would be an unlawful exercise of the right of ownership, Art. 3:13(1) BW. Art. 3:13(2) BW stipulates that an owner abuses such right where it would be unreasonable to exercise the right because the harm done to other interests

39

Afdeling Rechtspraak van de Raad van State, Judgment of 13 January 1988, ECLI:NL: RVS:1988:AN0136. 40 Moné and Eeken (2010).

Property Meeting the Challenge of the Commons in The Netherlands

235

is disproportionately severe in relation to the owner’s interest in exercising the right. Alternatively, Emanuela could invoke an emergency situation (overmachtnoodtoestand) that would render taking possession of the building lawful, Art. 6: 162(3) BW. As the doctrine on abuse of rights does not give enough guidelines, it seems appropriate to draw on the existing doctrine on emergency situations and, as Emanuela et al also commit a criminal offence under Art. 138 and 138a of the Penal Code, the jurisprudence on the housing case. An appropriate first condition seems to be that Emanuela et al have or protect an interest that is worthy of legal protection and would otherwise be harmed.41 As Art. 2 ECHR recognises the right to life, the health of the irregular migrants is, without any doubt, such an interest. An appropriate second condition would be that the infringement of Syntech’s right of ownership must be necessary to give the migrants access to health care.42 As is shown hereunder, however, irregular migrants do have appropriate access to health care so that the use of Syntech’s vacant building is not necessary. Were it necessary, the courts would have to conduct a balancing of interests to determine whether the health care of the irregular migrants outweighs the ownership interest of Syntech.43 Following the jurisprudence of the Regional Court of Middelburg, I would submit that this would only be the case where the building was formerly used for medical purposes and has been vacant for a considerable period of time for no legitimate reason and if Emanuela et al paid an appropriate rent. Also, the interests of the migrants would only outweigh Syntech’s interest as long as Syntech does not put the building to reasonable use. The conclusion would be that Emanuela et al would have to leave the building.

2.2.2

Access of Irregular Migrants to Health Care

Irregular migrants, meaning foreign citizens without a valid residence permit, can theoretically take out a health insurance policy. If they do not want or cannot afford to do that, they will be entitled to the health care that insured people would receive. Should they not be able to pay for their treatment by a GP, the CAK (an authority under the Ministry of Public Health, Well-Being and Sport) will reimburse 80% of the normal rate. This is in line with Art. 13(1) of the European Social Charter, which gives everyone the right to medical assistance.

41

Fokkens et al. (2020), Art. 40 Sr, No. 5. Fokkens et al. (2020), Art. 40 Sr, No. 7. 43 Fokkens et al. (2020), Art. 40 Sr, No. 7. 42

236

2.3

B. Hoops

Food

Marta, Mattias, and Madison, together with their families and neighbors, cultivate a communal garden on a vacant plot of land as a food source. Max Corporation, the owner of the plot of land, discovers the three families and tells them to leave. Max Corporation brings a claim against the three families for their removal and the removal of the food grown by the families on its land. Note that I neither discuss whether Marta et al commit a criminal offence under Art. 138 Sr nor the powers of the municipality to forbid their activities and evict them under administrative law.

2.3.1

Eviction Order

Art. 5:22 BW gives Marta et al the right to enter the land as long as it is not fenced. Max Corporation, however, can apply for an eviction order anytime, relying upon its right of ownership. As Marta et al occupy the land of Max Corporation without any right, contractual or otherwise, to use it, they, in principle, commit an unlawful act. Only if Max Corporation abused its right of ownership or Marta et al were in an emergency situation, would the courts not issue an eviction order. Based upon the requirements developed for the health care case, Marta et al would certainly fail to prevent an eviction order. As Art. 2 ECHR protects the right to life, access to food is a vital interest worthy of legal protection. However, the infringement of the property right of Max Corporation is not necessary. As is demonstrated hereunder, at least a basic allowance guarantees that Marta et al have enough financial means to purchase food. For this reason, the courts will issue an eviction order. An exception would be that Marta et al have acquired the ownership of the land by prescription. If Max Corporation lost the possession of the land more than twenty years ago, the possessor of the land at that moment in time would become the owner, Art. 3:105(1), 3:306 BW. The facts of the case, however, provide insufficient information on whether and, if so, when Max Corporation lost the possession of the land. As has been noted above, to have an eviction order suspended, the eviction would have to result in an emergency situation for Marta et al. As the state provides a basic allowance, no emergency situation should arise.

2.3.2

Basic Social Security

Dutch citizens, EU citizens that have been residents in the Netherlands for five years, and other lawful residents may have a right to at least a basic allowance (bijstandsuitkering), which amounts to EUR 1091.71 per month for single persons aged 21 or older. This allowance is also meant as financial means to purchase food.

Property Meeting the Challenge of the Commons in The Netherlands

237

Should Marta et al find this amount insufficient to cover their costs of food, the jurisprudence on kraken seems to suggest that this would only be relevant if a large group of people struggled to make ends meet with this allowance.

2.3.3

Food

The plants that have yet to be harvested belong to the owner of the land, Art. 5:20(1) (f) BW. Once they are harvested, they are fruits of the land. Max Corporation is the owner of the fruits of the land, Art. 5:1(3) BW. That does not necessarily mean that Max Corporation can claim the plants, whether harvested or not. When Marta et al make food from the harvested plants, they invest their labour and change the nature of the plants. For example, they may turn wheat grain into flour. Marta et al will become the owners of the food owing to specificatio, Art. 5:16(2) BW. Max Corporation could therefore not claim this food. As for the rest of the plants, Marta et al would have a claim against Max Corporation on the basis of unjust enrichment, Art. 6:212 BW. If Marta et al are bad faith possessors of the land, they may take the plants away, Art. 3:123 BW.

2.4

Water (Rural)

Maya, Malik, and Mei depend on the water of Flumia, a nearby river. The three villagers together with other villagers in the area build aqueducts and an irrigation canal from the river to their respective homes and fields. After a few years, a private corporation diverts the water of the Flumia River. Soon after, Maya, Malik, and Mei realize that water no longer flows to the aqueducts and irrigation canal from the river. Maya, Malik and Mei sue.

2.4.1

The Entitlement of Maya et al to Use the Water

Under Dutch law, nobody owns the water of a river.44 Both public law and private law determine whether or not Maya et al can use the water. If they are the owners of (or have a contractual or property right to use) land that is situated along the river, neighbour law provides that they can use the water for irrigation purposes and to water their animals unless using the water causes nuisance to other owners that amounts to an unlawful act in terms of Art. 6:162 BW.45 This right, however, is still subject to restrictions under public law. Moreover, if Maya et al are not the owners of such land (or do not have such a use right), only public law gives the answer.

44 45

Asser/Van Velten & Bartels 5 2017/96 et seq. Art. 5:40(1) BW.

238

B. Hoops

Rijkswaterstaat, on behalf of the kingdom, and local water boards (waterschap) administer the use of rivers. Rijkswaterstaat administers the big rivers and canals in the Netherlands.46 Let us assume that the kingdom administers the use of the river in our case. Art. 6.5(a) of the Water Act (Waterwet) stipulates that a decree can provide that the use of water from a river requires a permit issued by the competent Minister. Art. 6.16(1) of the Water Regulation (Waterregeling) stipulates that, in principle, a permit is required for using more than 100 m3 per hour if the river flows faster than 30 cm/s. Should the river flow more slowly, Maya et al will still have to notify Rijkswaterstaat of the use if they consume more than 100 m3 per hour.47 This hourly amount is also applied to the use of water from some smaller rivers managed by local water boards.48 As Maya et al are unlikely to use more than 100 m3 (100,000 l) of water per hour (or 2.4 million litres of water per day), they are entitled to use the water.

2.4.2

The Status of the Aqueducts and the Irrigation Canal

Provided that they have an environmental permit and the right or permission to use the land for that purpose,49 Maya et al can legally build the aqueducts and the irrigation canal. An environmental permit will only be issued if the use of the land is not contrary to the municipal zoning plan and Maya et al comply with building regulations and other applicable rules.50 Without an environmental permit, the municipality can order Maya et al to demolish the aqueducts and the irrigation canal.51 Should Maya et al not comply, the municipality can have the works demolished. Should Maya et al succeed in obtaining an environmental permit without a right or permission to use the land, the owner of the land could exclude them from using the land and have the aqueducts and the irrigation canal demolished. It is unlikely that Maya et al are in an emergency situation or that such an exercise of the right of ownership would constitute an abuse of right because, in the Netherlands, all municipalities are connected to the water supply and social security law ensures that people have enough financial means to pay for the water. After 20 years of using the aqueducts and the irrigation canal, however, the owner may have to tolerate the use of the aqueducts and the irrigation canal on his land because Maya et al may have acquired a servitude by prescription.52

46

Art. 3.1 Waterwet; Bijlage II, Waterbesluit. Art. 6.17(1) Waterregeling. 48 Art. 3.7 and 13.1 Brabant Keurregels. 49 Art. 2.1(1)(a) Wabo. 50 Art. 2.10(1), in particular (c) Wabo. 51 Art. 5:7, 5:21 Awb, read in conjunction with Art. 5.2, 5.1 en 2.1(1)(a) Wabo. 52 Art. 3:105(1), 3:306 BW. 47

Property Meeting the Challenge of the Commons in The Netherlands

2.4.3

239

Remedies Under Administrative Law

Even if the private company exercises its right to use of the river flowing along its property,53 the company in all likelihood fails to comply with public law. Without a permit, it is only allowed to take 100 m3 of water per hour (if the river flows faster than 30 cm/s). In diverting a river for its own purposes, the company certainly takes more than 100 m3 of water per hour. If the company has not obtained a permit, Rijkswaterstaat is, in principle, obliged to enforce the water regulation by ordering the company to restore the natural flow of the river,54 and have another company restore the flow if the company fails to do that. As interested parties in terms of Art. 1:2 Awb, Maya et al can request such measures.55 If the company has obtained a permit, it is close to impossible that the company complies with the conditions of the permit. It is the goal of the Water Act to avoid a lack of water and to ensure that water can fulfil its societal function.56 Also, there are water boards that have adopted policy rules that explicitly stipulate that a permit must not lead to damage caused by a lack of water unless compensation is paid.57 Therefore, a lawful permit would not allow a diversion of the river’s water. Again, Rijkswaterstaat could enforce compliance with the permit. The only scenario in which the actions of the company would be lawful would be the diversion of a river for an approved project after an extensive planning procedure.

2.4.4

Remedies Under Private Law

Maya et al could file an action against the company for damages and the restoring of the natural flow of the river. The basis would be the basic norm in Dutch tort law, art. 6:162 BW. The diversion of the water of the river constitutes an unlawful act because, as has been concluded above, the private company in all probability diverts the water without the required permit or contrary to the conditions of its permit.58 Should Art. 5:40(1) BW apply, the company could not rely upon it because public law specifies the entitlement of the owner. In order to claim damages or obtain a court order for the restoration of the river’s natural flow,59 Maya et al must establish that the violated rules are intended to protect the legitimate interests of Maya et al.60 As the Water Act is meant to prevent a lack of water and to ensure that water can perform its societal function, the Water Act protects the interests of those who use

53

Art. 5:40(1) BW. Art. 5:7, 5:21 Awb, read in conjunction with Art. 8.1(1) Waterwet en Art. 6.16 Waterregeling. 55 Art. 5:24(3) and 5:31a Awb. 56 Art. 2.1(a) and (c) Waterwet. 57 See, for instance, Art. 9.3 beleidsregel Brabant Keur. 58 Asser/Hartkamp & Sieburgh 6-IV 2015/45. 59 Asser/Hartkamp & Sieburgh 6-IV 2015/153. 60 Art. 6:163 BW. 54

240

B. Hoops

water for legitimate purposes. Also, the unlawful act must be attributable to the company,61 which does not pose an obstacle because the company wilfully diverted the water. Maya et al then need to establish the damage caused by the diversion.

2.5

Water (Urban)

Jose, Jasmine, and Horatio are three friends that inhabit an apartment together in a city, Flumiapolis. Following a large increase in the price of water (200% in one year), the three friends fail to pay their water bills. After failing to pay their third bill, the water management cuts off their access to the water supply. Jose, Jasmine and Horatio sue. A water supply company can only cut off the access to the water supply of a person who consumes less than 5 m3 (5000 l) per hour after following the procedure laid down in the Regeling afsluitbeleid voor kleinverbuikers van drinkwater.62 The goal of this regulation is to avoid that the water supply is cut off.63 The regulation makes a distinction between vulnerable consumers and those who are not vulnerable. Vulnerable consumers are persons who would suffer severe medical harm if the water were cut off.64 The company cannot cut off the water supply of a vulnerable consumer unless the consumer so requests, has acted fraudulently, has abused the water supply, or the water installation is so unsafe that the water supply must be cut off.65 Having sent the first invoice, the water supply company needs to send at least one written reminder.66 In this reminder, the company needs to notify the consumer of the opportunity to seek advice from debt advisors and offer to send the consumer’s contact details upon request to such an advisor. The company also needs to highlight that the consumer can submit a doctor’s declaration that the consumer is vulnerable.67 Also, a representative of the company needs to try to contact the consumer in person to instruct the consumer about the assistance provided by debt advisors.68 Given the goal of the regulation, the company can then only cut off the water supply of normal consumers if the consumer does not respond to the reminder and the attempts to contact him/her personally or if s/he fails to seek advice from a debt advisor.

61

Art. 6:162(3) BW. Art. 2 Regeling afsluitbeleid voor kleinverbuikers van drinkwater, Art. 1(1) Drinkwaterwet. 63 Art. 9(2) Drinkwaterwet. 64 Art. 1(a) Regeling afsluitbeleid voor kleinverbuikers van drinkwater. 65 Art. 6 Regeling afsluitbeleid voor kleinverbuikers van drinkwater. 66 Art. 3(1) Regeling afsluitbeleid voor kleinverbuikers van drinkwater. 67 Art. 3(2) Regeling afsluitbeleid voor kleinverbuikers van drinkwater. 68 Art. 4 Regeling afsluitbeleid voor kleinverbuikers van drinkwater. 62

Property Meeting the Challenge of the Commons in The Netherlands

2.6

241

Nature

Hamid, Heba, and their two children used to spend many weekends walking and playing in one of the few green areas at the outskirts of the city where they live. The land belongs to a private owner who lives in a small house near the lake. Corporation C acquires the green area and converts it into a members-only country club. Hamid and Heba sue. A local environmental group also sues claiming access to what they consider a natural commons.

2.6.1

The Private Law Perspective

Art. 5:22 BW stipulates that everyone has a right to roam around on somebody else’s land. This right, however, does not trump the owner’s right to exclude others from using the land in terms of Art. 5:1 BW. To the extent that the land is fenced or there are buildings on the land, non-owners cannot roam on the land.69 Also, if the owner puts up a sign or otherwise announces that entering the land is prohibited, Hamid and Heba cannot rely upon Art. 5:22 BW.70 Furthermore, Hamid and Heba may not cause nuisance or otherwise commit an unlawful act on the land. Hamid and Heba do not have any other right to use the land. To sum up, under private law, the corporation can exclude Hamid and Heba from using the land. The access to the natural commons claimed by the local environmental group shares the same fate.

2.6.2

Country Club Inconsistent with the Municipal Zoning Plan

Art. 3.1(1) of the Spatial Planning Act (Wet ruimtelijke ordening; Wro) stipulates that the municipal council adopts a municipal zoning plan for its area of jurisdiction. In this plan, the council lays down the permitted uses of a parcel of land. It is prohibited to use land contrary to the municipal zoning plan without a permit to do so.71 The original use may have been “green” (groen) with “residential” (woon) elements or vice versa or only “residential”. The rules on the use of the land may possibly have included an obligation to refrain from excluding others from using the green area. To run a members-only country club, with both recreational elements and services typical of a bar or a restaurant, would be inconsistent with the designated use of the land and require a change of the designation. Should the corporation run the country club without a change of the land use, this use would be unlawful. The municipality can order the corporation to stop running the country club.72 In principle, the municipality is even obliged to halt the unlawful 69

van Zeben et al. (1981), p. 129. van Zeben et al. (1981), p. 129. 71 Art. 2.1(1)(c) Wabo. 72 Art. 5:7, 5:21 Awb, read in conjunction with Art. 5.2, 5.1 en 2.1(1)(a) Wabo. 70

242

B. Hoops

conduct.73 Unlike Hamid and Heba, the environmental group, provided that it is a recognised legal person and its articles of association and activities demonstrate that the group specifically advocates environmental protection in the area, is likely to be a person with a legitimate interest in terms of Art. 1:2 Awb so that the group could request the municipality to take such measures. As the corporation would act unlawfully and the unlawful act is attributable to the corporation, Hamid and Heba as well as the environmental group could possibly file for an injunction under Art. 6:162 BW. The broken norm, however, must be meant to protect Hamid and Heba and the interests that the environmental group wishes to advocate, respectively.74 Municipal zoning plans promote good spatial planning, which term refers to a stable balance between the needs of a dynamic society, more specifically an ever increasing demand for housing, professional facilities, infrastructure, recreation, water, and nature, and the protection of vulnerable groups and public interests, such as less affluent citizens and environmental protection.75 As recreation is one of the interests that the municipality needs to take into account, it seems likely that the prohibition to use land contrary to the zoning plan also protects Hamid’s and Heba’s interest in using the green area for recreational purposes in accordance with the plan. The same is true of environmental protection as an interest advocated by the environmental group. Hamid and Heba as well as the group seem to have a sufficient personal legitimate interest in terms of Art. 3:303 BW. The environmental group, however, needs to meet the requirements of Art. 3:305a BW before it can file for an injunction. The group must have established a foundation or an association with legal personality. The action filed by the group must serve environmental protection, another general interest or the private interests of a group of people.76 In casu this would be environmental protection. The last requirement is that the legal person’s articles of association stipulate that it is the goal of the legal person to protect that interest. It is immaterial whether or not the municipality can order the corporation to stop.77

2.6.3

Changes to the Municipal Zoning Plan

The appropriate route for the corporation to follow would be to suggest changing the zoning plan to the municipal council. In the planning procedure, Hamid, Heba, and the group can raise objections against the change.78 The decision of the municipal council must be based upon a balancing of all relevant interests. As has been noted

73

Bröring and De Graaf (2019), pp. 620 et seq. Art. 6:163 BW. 75 Memorie van Toelichting (explanatory memorandum), Wet ruimtelijke ordening, Kamerstukken II, 28 916, No. 3, p. 9. 76 Asser/Hartkamp & Sieburgh 6-IV 2015/156. 77 Asser/Hartkamp & Sieburgh 6-IV 2015/150. 78 Art. 3.8(1)(d) Wro. 74

Property Meeting the Challenge of the Commons in The Netherlands

243

above, environmental protection and recreation are two of these interests. If the municipal council decides to change the plan according to the wishes of the corporation, the group, if it is an interested party, can lodge an appeal against the plan with the Judicial Division of the Council of State (Afdeling bestuursrechtspraak van de Raad van State).79 The group can argue that there are too few green areas within the municipality and that the change to the zoning plan leads to a disproportionate impact upon recreation and environmental protection. The Judicial Division tests whether the change would be inconsistent with good spatial planning because there are not enough green areas. The court’s scrutiny is, however, very limited because the municipal council exercises a discretionary power. This seems to be a reason why there is no reported case in which this objection has been successful. If no appeal is lodged against the plan or the Judicial Division does not overturn the zoning plan, the corporation can build the country club once it has obtained an environmental permit.80 If the plan complies with the zoning plan and other applicable legislation and regulations,81 the corporation is certain to obtain the permit that will withstand judicial scrutiny. Should the country club not comply with the requirements of the permit or with the rules of the zoning plan, the described remedies under both administrative law and private law would be available.

2.7

Territory

Yellowriver is a small village sitting within a large and remote forest area. The government grants to Gold Masters Corporation permission to dig seeking for gold in order to develop a nearby mine. Aware of the high polluting risks of gold extraction to the nearby river, villagers erupt in protest and attempt to stop the project by legal means. Do they have any available action to protect the river— either as individuals or as an endangered community? If they are persons with a legitimate interest in terms of Art. 1:2 Awb, the members of the community can lodge an appeal against the administrative decision to permit the search for gold.82 The community as a whole cannot have the status of a person with a legitimate interest unless a legal person advocates the protection of the river according to its articles of association. Under Art. 6(1) of the Dutch Mining Act, the search for minerals is prohibited without a permit issued by the Minister of Economic Affairs. In the administrative procedure following an application for a permit, persons with a legitimate interest can submit objections to the municipality,

79

Art. 8:1 Awb, Art. 2, Bijlage (Annex) 2, Awb, read in conjunction with Art. 8:6 Awb. Art. 2.1(1)(a) Wabo. 81 Art. 2.10(1) Wabo. 82 Art. 142(1) Mining Act (Mijnbouwwet), read in conjunction with Art. 20.1(1) of the Environmental Management Act (Wet Milieubeheer). 80

244

B. Hoops

which objections must be heard.83 The Minister may decline to issue the permit for several reasons. From the perspective of the community, the most important ground of refusal would be that the Minister finds the area unsuitable for mining operations because of their adverse impact upon the environment.84 An appeal against the Minister’s decision, however, will generally be unsuccessful unless s/he failed to consider important facts or fails to observe statutory standards of environmental protection. In this context, water protection legislation is of particular importance. Art. 2(2) of the Regulation on Environmental Quality Standards regarding Dangerous Substances in Surface Waters (Regeling milieukwaliteitseisen gevaarlijke stoffen oppervlaktewateren) provides that all administrative bodies whose decisions may have an impact upon surface waters have to observe the standards contained in the regulation. Annex I provides the maximum amount of certain substances that surface waters may contain. Apart from this, the Minister enjoys discretion when deciding whether to decline to issue the permit. In addition, it seems that he has a margin of discretion when considering whether the selected site is suitable for mining. The judiciary will thus subject the balancing of interests and conclusions to a very limited review.

2.8

Culture

State funding to a nonprofit local theater is cut in response to austerity measures; as a result the theater will be sold to a private company that wants to operate the theater at a profit. Evgenia, Misha, and Katia are actors, and along with other concerned citizens that protest the sale and other workers, they occupy the theater, and continue the theater’s programming for the public through a combination of volunteer work and donations. The municipality brings suit to evict against Evgenia, Misha, Katia, and the other actors. Such a case has never reached the Dutch courts. The courts, however, are very likely to issue an eviction order. The municipality can rely upon its right of ownership. In occupying the theatre without any right to use the building and against the owner’s will, Evgenia et al, in principle, commit an unlawful act, Art. 6:162 BW. As a right to cultural activities is not recognised under Dutch law, it is unlikely that there is an emergency situation. The municipality would only abuse its right of ownership if it sold the theatre and excluded Evgenia et al from using it in order to harm a person working at the theatre or who is otherwise involved.85 However, this is not the case. The course of action that Evgenia et al should (have) follow(ed) is to influence the decisions of the municipal council and the municipal executive on the sale of the building and the possibly required changes to the municipal zoning plan.

83

Art. 6a, 16(2) Mining Act. Art. 9(1)(f) Nos. 3 and 4 Mining Act. 85 Art. 3:13(2) BW. 84

Property Meeting the Challenge of the Commons in The Netherlands

245

Variation: Assume that the actors obtain permission to stay and to use the theater provided that they run it as a commons in the interest of culture and future generations. What legal form should they use to this purpose? The actors should found a foundation (Stichting), which is a not-for-profit legal person. The foundation is independent of its founders and serves a certain goal laid down in its articles of association. It is run by directors who are not employees of the foundation and can be dismissed by courts. It is regulated in Art. 2:285 BW et seq.

2.9

Climate

Diletta, Flavio, and Antonella became aware of the reality of climate change when their school teacher decided to work on reading materials that were circulated at the time of the 2015 Paris Agreement on Climate Change. Although just turned 18 years old, all the three of them took the information quite seriously and started to worry about the gloomy expectations they learnt about: dangerous rise in the global temperature, water scarcity, droughts, forest fires, possible displacement of populations, etc. After the scandal involving the Popcar Corporation, concerning the manipulation of computer system for the control of emission in cars, Diletta, Flavio, and Antonella are struck by the quite feeble sanctions inflicted to the car manufacturer—not only in their jurisdiction. For this reason, Diletta, Flavio, and Antonella decide to take action in the interest of future generations. They sue their government and the global corporation Popcar.

2.9.1

Private Law Actions Against the Government

Diletta, Flavio, and Antonella have a sufficient legitimate personal interest in terms of Art. 3:303 BW to bring an action before the civil courts against the state because the emission of greenhouse gases and climate change adversely affect their lives. Their action against the government for an injunction may be successful under the basic norm in tort law (Art. 6:162 BW). The state will act unlawfully as against Diletta, Flavio, and Antonella if the state infringes their subjective rights. The rights guaranteed under the European Convention of Human Rights (ECHR) have direct effect under Dutch law.86 Art. 2 ECHR protects everyone’s right to life. This protection may impose upon the state the obligation to take positive measures to safeguard lives from the actions of private persons, including actions harming the environment. In the context of environmental protection, the European Court of Human Rights found that this obligation applies where dangerous activities, such as nuclear tests, chemical factories that emit toxic substances, or waste-collection sites, are undertaken. According to the Council of

86

See 1.7.

246

B. Hoops

Europe’s Manual on human rights and the environment, the extent of the state’s obligation depends upon several factors, such as the harmfulness of the dangerous activities and the foreseeability of the risks to life.87 The threat that climate change poses to life itself is not as immediate and severe as the dangerous activities mentioned in the manual. However, as climate change will adversely affect the human environment dramatically, it is conceivable that the state infringes the right to life of Diletta, Flavio, and Antonella by not curbing greenhouse gas emissions sufficiently and thus commits an unlawful act in terms of Art. 6:162 BW. As far as too lenient sanctions imposed upon car manufacturers for committing fraud are concerned, however, it seems likely that the European Court would conclude that the decision on the severity of the sanctions falls within the wide discretion (“margin of appreciation”) granted to the signatory states.88 Another source of positive obligations of the state may be Art. 8 ECHR, which protects the subjective right to the home, privacy, and family life. With respect to environmental protection, however, this provision mainly protects Diletta, Flavio, and Antonella from nuisance that has a direct physical or mental effect.89 It is, therefore, unlikely that they can rely upon Art. 8 ECHR. The state will also commit an unlawful act if it breaches a duty of care towards Diletta, Flavio, and Antonella. Although they do not have direct effect, which means that Diletta, Flavio, and Antonella cannot derive subjective rights from them, several international, European, and constitutional norms influence the concretisation of the state’s duty of care: – Art. 21 of the Dutch Constitution obliges the state to strive for environmental protection; – The United Nations Framework Convention on Climate Change, which aims to protect the climate, based upon the precautionary principle and the principle of sustainability; – Art. 191 TFEU, which provides that EU policy shall strive for a high level of environmental protection, following the precautionary principle and the principle that preventive action should be taken, and based upon available scientific and technical data. Moreover, the Dutch state has committed to reducing greenhouse gas emissions under the Paris Agreement. In the Urgenda case, a foundation brought an action against the Dutch state and demanded that the state take measures to limit greenhouse gas emissions to a greater extent. In this case, the District Court of The Hague found that the state had breached its duty of care by not taking enough measures to reduce greenhouse gas emissions to a level generally regarded as necessary to prevent the most severe consequences of

87

Council of Europe 2012, Part II, Section A, Chapter I, Art. 2b. Council of Europe 2012, Part II, Section A. 89 Council of Europe 2012, Part II, Section A, Chapter II, Art. 8c. 88

Property Meeting the Challenge of the Commons in The Netherlands

247

climate change.90 The District Court ordered the state to take measures to limit greenhouse gas emissions accordingly. The Court of Appeal of The Hague confirmed this judgment in 2018, ordering the state to reduce greenhouse gas emissions by 25% on 1990 by the end of 2020.91 In December 2019, the Dutch Supreme Court found that Art. 2 and 8 ECHR obliged the state to reduce greenhouse gas emissions in line with international commitments and that a failure to do so would constitute an unlawful act.92 The Court of Appeal’s order to reduce emissions was thus upheld. If such an order is their aim, Diletta, Flavio, and Antonella will probably be successful. If aimed at imposing more severe sanctions upon car manufacturers, however, their action will be unsuccessful. The state enjoys such wide discretion when choosing the means to combat climate change that the courts cannot be called upon to declare a specific measure insufficient and thus unlawful.93

2.9.2

Actions Under the ECHR Against the Government

Once all remedies have been exhausted, Diletta, Flavio, and Antonella could appeal to the European Court of Human Rights and rely upon Art. 2 and 8 ECHR. The application of those provisions has been discussed above.

2.9.3

Administrative Law Actions Against the Government

Dutch courts do not scrutinise the constitutionality of legislation.94 Therefore, Diletta, Flavio, and Antonella cannot challenge the legislation upon which the sanction against the car manufacturer is based. They may be able to lodge a complaint or an appeal against the administrative decision to impose the sanction that they perceive as too lenient.95 However, they would need to have a legitimate interest in the matter in terms of Art. 1:2 Awb. As long as their interest is not different from the interest of any other person in the Netherlands, they will not be able to challenge the decision. They could establish a legal person whose purpose is to combat climate change. If the legal person’s articles of association and activities demonstrate that the group specifically combats climate change, the legal person could lodge a complaint or an appeal.

90

Rechtbank Den Haag, Judgment of 24 June 2015, ECLI:NL:RBDHA:2015:7145. Gerechtshof Den Haag, Judgment of 9 October 2018, ECLI:NL:GHDHA:2018:2591. 92 Hoge Raad, Judgment of 20 December 2019, ECLI:NL:HR:2019:2006, paras 5.8, 7.1 et seq and 8.3.5. 93 Rechtbank Den Haag, Judgment of 24 June 2015, ECLI:NL:RBDHA:2015:7145, para 4.101. 94 Art. 120 Gw. 95 Art. 7:1 and 8:1 Awb. 91

248

B. Hoops

If sanctions were more lenient than prescribed by primary legislation, the courts would strike down the decision. If the competent authority has a discretionary power, the courts will only subject the decision to a very limited review.96

2.9.4

Actions Against Popcar

Diletta, Flavio, and Antonella have a sufficient legitimate personal interest in terms of Art. 3:303 BW to bring an action before the civil courts against Popcar. They could base their action on Art. 6:162 BW. Assuming that Popcar violated primary legislation by manipulating the computer system controlling emissions, Popcar committed an unlawful act. If the legislation is intended to protect Diletta, Flavio, and Antonella, they could obtain an order from the court for Popcar to comply with the legislation. An action to obtain an order on the basis of Art. 6:162 BW for Popcar to generally reduce its emissions may be successful. Popcar’s duty of care may include reducing its emissions. The abovementioned international, EU and constitutional norms are directed at the signatory states, EU Member States, and the Dutch state, respectively. It is true that international, EU and constitutional norms may have a horizontal effect on the extent of Popcar’s duty of care.97 However, the contribution of each private actor to combating climate change is not specified and can hardly be concretised by the courts. The prevailing opinion seems to be that it is for the legislator to concretise Popcar’s duty to reduce emissions.98 Note that a Dutch environmental NGO brought an action against the oil and gas producer Royal Dutch Shell for an order to reduce greenhouse gas emissions. The District Court of Hague ruled against Shell on 26 May 2021 (ECLI:NL:RBDHA:2021:5337), finding that Shell’s duty of care included reducing its emissions, relying on a distinction between “severe polluters” like Shell and “less severe polluters”.99 If such a distinction is confirmed on appeal, it will depend on the amount of greenhouse gas emissions produced by Popcar as to whether it has to reduce its emissions.

96

Bröring and De Graaf (2019), pp. 378 et seq. Elzinga et al. (2014), pp. 284 et seq. 98 Elzinga et al. (2014), pp. 287 et seq. 99 Cf. Fleurke and Smeehuijzen (2018), pp. 2232–2238; L.E. Burgers, “An Apology Leading to Dystopia: Or, Why Fuelling Climate Change is Tortious”, Transnational Environmental Law 11(2) (2022) 419–431; T.R. Bleeker, ‘Aansprakelijk voor klimaatschade: een driekoppige draak’, Nederlands Tijdschrift voor Burgerlijk Recht 1(2) (2018), 4–11. 97

Property Meeting the Challenge of the Commons in The Netherlands

249

Dutch Supreme Court (Hoge Raad) Hoge Raad, Judgment of 20 December 2019, ECLI:NL:HR:2019:2006. Hoge Raad, Judgment of 18 January 1991, ECLI:NL:HR:1991:AC4031. Hoge Raad, Judgment of 22 April 1983, ECLI:NL:HR:1983:AG4575. Hoge Raad, Judgment of 2 February 1971, ECLI:NL:HR:1971:AB3474. Hoge Raad, Judgment of 17 April 1970, ECLI:NL:HR:1970:AC5012.

Judicial Division of the Council of State (Afdeling bestuursrechtspraak van de Raad van State) ABRvS, Judgment of 16 April 2014, ECLI:NL:RVS:2014:1334. ABRvS, Judgment of 8 November 2006, ECLI:NL:RVS:2006:AZ1762. Afdeling Rechtspraak van de Raad van State, Judgment of 13 January 1988, ECLI: NL:RVS:1988:AN0136.

Courts of Appeal Gerechtshof Den Haag, Judgment of 9 October 2018, ECLI:NL:GHDHA:2018: 2591. Gerechtshof ‘s-Hertogenbosch, Judgment of 22 December 1981, as cited by Hoge Raad, Judgment of 22 April 1983, ECLI:NL:HR:1983:AG4575.

Courts of First Instance/District Court Rechtbank Den Haag, Judgment of 26 May 2021, ECLI:NL:RBDHA:2021:5337. Rechtbank Den Haag, Judgment of 24 June 2015, ECLI:NL:RBDHA:2015:7145. Rechtbank Amsterdam, Judgment of 29 January 1992, ECLI:NL:RBAMS:1992: AK0455. Rechtbank Alkmaar, Judgment of 13 November 1986, WR 1987, 20. Rechtbank Middelburg, Judgment of 24 December 1980, ECLI:NL:RBMID:1980: AC7089.

250

B. Hoops

References Andreae SJF (1919) Recht van den wind en molendwang. Tijdschrift voor Rechtsgeschiedenis: 431–442 Barkhuysen T, Van Emmerik ML (2005) De eigendomsbescherming van artikel 1 van het Eerste Protocol bij het EVRM en het Nederlands burgerlijk recht: Het Straatsburgse perspectief. In: Barkhuysen T, Ploeger HD, Van Emmerik ML, De eigendomsbescherming van artikel 1 van het Eerste Protocol bij het EVRM en het Nederlandse burgerlijk recht. Kluwer, Deventer Bröring HE, De Graaf KJ (eds) (2019) Bestuursrecht, Deel 1, 6th edn. Boom, The Hague Council of Europe (2012) Manual on human rights and the environment, 2nd edn. Council of Europe Publishing, Strasbourg Dozy RA, Jacobs Y (1999) Hoofdstukken huurrecht voor de praktijk, 3rd edn. Gouda Quint, Arnhem Elzinga DJ, De Lange R, Hoogers HG (2014) Van der Pot, Handboek van het Nederlandse staatsrecht, 16th edn. Kluwer, Deventer Fleurke F, Smeehuijzen L (2018) Milieudefensie versus Shell; een verkenning. NJB 1580:2232– 2238 Fokkens JW, Hofstee EJ, Machielse AJ (2020) Wetboek van Strafrecht-NLR online. Kluwer, Deventer. Online commentary. Accessed 24 Febr 2020 Hartkamp AS, Sieburgh CH (2015) Mr. C. Assers Handleiding tot de beoefening van het Nederlands Burgerlijk Recht 6-IV, Verbintenissenrecht, De verbintenis uit de wet, 14th edn. Kluwer, Deventer Hennekens HPJAM (2001) Openbare zaken naar publiek- en privaatrecht, 2nd edn. W.E.J. Tjeenk Willink, Zwolle Hoops B (2017) the legitimate justification of expropriation, a comparative law and governance analysis. Juta, Cape Town Ministerie van Binnenlandse Zaken (1969) Tweede rapport van de Staatscommissie van advies inzake de Grondwet en de Kieswet. Staatsuitgeverij, The Hague Moné HJ, Eeken N (2010) Kraken en leegstand: genezen en voorkomen (I). TBR 2010/20 Peters T (2013) Commentaar op artikel 14 van de Grondwet. In: Hirsch Ballin EMH, Leenknegt G (eds.) Artikelsgewijs commentaar op de Grondwet. https://www.nederlandrechtsstaat.nl. Accessed 5 July 2022 Sanderink DGJ (2015) Het EVRM en het materiële omgevingsrecht. Kluwer, Deventer Tjepkema MKG (2010) Nadeelcompensatie op basis van het égalitébeginsel. Kluwer, Deventer Van Gemert F, Dadusc D, Visser R (2012) Kerend tij; Criminalisering van de kraakbeweging. Tijdschrift voor Criminologie 54(3):195–210 Van Velten AA, Bartels SE (2017) Mr. C. Assers Handleiding tot de beoefening van het Nederlands Burgerlijk Recht 5, Zakenrecht, Eigendom en beperkte rechten, 16th edn. Kluwer, Deventer van Zeben CJ, du Pon JW, Olthof MM (1981) Parlementaire geschiedenis van het nieuwe burgerlijk wetboek. Boek 5: Zakelijke rechten. Kluwer, Deventer

La propriété face aux défis des biens communs au Québec Gaële Gidrol-Mistral and Alexandra Popovici

Résumé Le Québec ne connait pas de concept législatif de « communs ». Les catégories juridiques qui correspondent le mieux au concept sont les choses communes et le patrimoine commun puisque ces deux catégories sont dissociées d’un régime de propriété, soit-il privé ou public. Les notions de biens communs, de propriété publique, de propriété collective ainsi que d’affectation doivent également être mentionnées puisqu’elles permettent d’organiser un usage commun des biens. Le concept de « communs » n’est donc pas étranger au droit québécois et il se retrouve aujourd’hui dans les débats académiques et jurisprudentiels, notamment dans la revendication des droits des peuples autochtones. La propriété des biens publics connaît un régime particulier, qui permet une certaine aliénation de ces biens par l’État. Peu de recours existent pour protéger les biens publics et les biens mis en commun. Au Québec, la propriété privée, de l’État comme des particuliers, malgré certaines limites inhérentes, prime et rend complexe l’intégration dans notre modèle juridique du concept de « communs ».

G. Gidrol-Mistral UQÀM, Montreal, QC, Canada e-mail: [email protected] A. Popovici (✉) Université de Sherbrooke, Sherbrooke, QC, Canada e-mail: [email protected] © The Author(s), under exclusive license to Springer Nature Switzerland AG 2023 U. Mattei et al. (eds.), Property Meeting the Challenge of the Commons, Ius Comparatum - Global Studies in Comparative Law 59, https://doi.org/10.1007/978-3-031-25218-1_8

251

252

G. Gidrol-Mistral and A. Popovici

1 Questionnaire : Partie I 1.1

Quelles catégories juridiques de votre système juridique peuvent correspondre le mieux au concept de « communs » présenté dans l’introduction ?

Les catégories juridiques qui correspondent le mieux au concept de « communs » sont les choses communes (a) et le patrimoine commun (b) puisque ces deux catégories sont dissociées d’un régime de propriété, soit-il privé ou public. Les notions des biens communs (c), de propriété publique (d) et d’affectation (e) sont également mentionnées puisqu’elles organisent, à certains égards, un usage commun des biens.

1.1.1

Choses communes

Les choses communes ou res communes sont définies (Cantin Cumyn 2011, 599) à l’article 913 du Code civil du Québec1: Article 913 Certaines choses ne sont pas susceptibles d’appropriation; leur usage, commun à tous, est régi par des lois d’intérêt général et, à certains égards, par le présent code. L’air et l’eau qui ne sont pas destinés à l’utilité publique sont toutefois susceptibles d’appropriation s’ils sont recueillis et mis en récipient.

Article 913 Certain things may not be appropriated; their use, common to all, is governed by general laws and, in certain respects, by this Code. However, water and air not intended for public utility may be appropriated if collected and placed in receptacles.

L’air et l’eau sont identifiés à l’article 913 du C.c.Q, mais cette liste n’est pas exhaustive. Ainsi, les œuvres intellectuelles peuvent être qualifiées de choses communes une fois leur protection juridique expirée, après une période de 50 ans à partir de la date de décès de l’auteur (Lafond 2007, 1015 par. 2337; Lamontagne 2018, 19 par. 22)2. Bien que la catégorie des res communes crée une présomption d’inappropriabilité, cette dernière demeure réfragable puisque ces choses, à la condition de ne pas être destinées à l’utilité publique, peuvent être appropriées par recueillement et mise en récipient (art. 913 al. 2 C.c.Q.). Elles sont alors traitées juridiquement comme des res nullius susceptibles d’appropriation par le mécanisme acquisitif de l’occupation.

1 2

Code civil du Québec, R.L.R.Q. c. C-1991 [ci-après C.c.Q.]. Loi sur le droit d’auteur, L.R.C. (1985), c. C-42, art. 6.

La propriété face aux défis des biens communs au Québec

1.1.2

253

Patrimoine commun

L’article premier de la Loi sur l’eau souligne la dimension collective des ressources en eau (Halley et Gagnon 2012, 239)3 : « Étant d’intérêt vital, l’eau de surface et l’eau souterraine, dans leur état naturel, sont des ressources qui font partie du patrimoine commun de la nation québécoise ». La loi reste toutefois muette quant au sens de la notion de « patrimoine commun ».

1.1.3

Bien commun

Au Québec, aucune loi ne définit la notion de « bien commun ». Cette notion ne se retrouve ni dans le Code civil du Québec ni dans la Charte québécoise 4. La notion de « bien commun » était présente dans le Code civil du Bas-Canada5 aux articles traitant de la communauté de biens des époux (art. 1355 C.c.B.-C.) et de la copropriété des immeubles (art. 442 p C.c.B.-C.). Au fédéral, la Cour suprême a déjà qualifié les ressources halieutiques du Canada de « bien commun » qui appartient à tous les Canadiens6. Il faut souligner qu’au Québec, la notion de bien a remplacé celle de chose dans l’article qui définit la propriété (art. 947 C.c.Q.). Article 947 La propriété est le droit d’user, de jouir et de disposer librement et complètement d’un bien, sous réserve des limites et des conditions d’exercice fixées par la loi. Elle est susceptible de modalités et de démembrements.

Article 947 Ownership is the right to use, enjoy and dispose of property fully and freely, subject to the limits and conditions for doing so determined by law. Ownership may be in various modalities and dismemberments.

Le bien se comprend depuis la réforme du Code civil comme un droit patrimonial ou une chose appropriable (Cantin Cumyn et Cumyn 2006; Gidrol-Mistral 2016a). Au contraire, au fédéral, la notion reflète les choses non appropriables qui sont couvertes par les choses communes au Québec. Dans le cadre des discussions entourant la Loi sur l’eau, la notion de « bien commun » fut envisagée pour qualifier les ressources en eau (Ministère de la Justice 1999, 18-51; Commission sur la gestion de l’eau au Québec 2000, 121). Finalement, la Loi sur l’eau ne contient pas la mention de « bien commun », préférant référer à l’article 913 du Code civil du Québec portant sur les choses communes. Dans le cadre de l’adoption de la Loi sur l’eau, une importante doctrine a d’ailleurs profité de 3

Loi affirmant le caractère collectif des ressources en eau et favorisant une meilleure gouvernance de l'eau et des milieux associés, R.L.R.Q. c. C-6.2, art. 1 [ci-après Loi sur l’eau]. 4 Charte des droits et libertés de la personne, R.L.R.Q. c. C-12 [ci-après Charte québécoise]. 5 Code civil du Bas-Canada [ci-après C.c.B.-C.]. 6 Comeau’s Sea Foods Ltd v. Canada (Minister of Fisheries and Oceans), [1997] 1 R.C.S. 12, p. 25, par. 37.

254

G. Gidrol-Mistral and A. Popovici

l’occasion pour réitérer la qualification de res communes de l’eau (Choquette et Gilles 2018; Tremblay 2008; Halley et Tremblay 2008; Cantin Cumyn 2011).

1.1.4

Propriété publique

Dans le Code civil du Québec, il est précisé que « les biens appartiennent aux personnes ou à l’État » (art. 915 C.c.Q.). L’État est donc un propriétaire public et un propriétaire privé.

1.1.4.1

Composition

La propriété publique est répartie entre les deux ordres de gouvernement, provincial et fédéral. Les articles 109 et 117 de la Loi constitutionnelle de 1867 énoncent comme principe que l’ensemble des biens du domaine public situés dans les limites d’une province appartiennent à cette province (Brun, Tremblay et Brouillet 2014, 85 par. II.113)7. Il s’agit de l’attribution résiduaire en faveur des provinces (Labrecque 1997, 102–103). L’État fédéral est toutefois propriétaire des ressources du plateau continental et de la mer territoriale, des aéroports, des bases militaires, des parcs fédéraux et des bâtiments qui servent à l’Administration fédérales et qui se trouvent sur le territoire des provinces (Emanuelli 2010 par. 513; Normand 2020, 475–476)8. Au Québec, le domaine public est composé de l’ensemble des biens mobiliers et immobiliers qui appartiennent à l’État ainsi que des biens des personnes morales de droit public affectés à des fins d’utilité publique (Borgeat et Dussault 1986, 15). L’État possède des droits considérables sur le territoire, le lit des cours d’eau et les lacs navigables, les ressources naturelles et les immeubles de l’Administration (Normand 2020, 476)9. Par ailleurs, l’article 918 C.c.Q. prévoit une présomption quant à la propriété des territoires non réclamés : Article 918 Les parties du territoire qui ne sont pas la propriété de personnes physiques ou morales, ou qui ne sont pas transférées à un patrimoine fiduciaire, appartiennent à l’État et font partie de son domaine. Les titres originaires de l’État sur ces biens sont présumés.

7

Article 918 Parts of the territory not owned by natural persons or legal persons nor transferred to a trust patrimony belong to the State and form part of its domain. The State is presumed to have the original titles to such property.

Loi constitutionnelle de 1867 (R-U), 30 & 31 Vict, c. 3, reproduite dans L.R.C. 1985, ann. II, n°5 [ci-après Loi constitutionnelle de 1867]. 8 Re : Offshore Mineral Rights, [1967] R.C.S. 792; Renvoi relatif au plateau continental de TerreNeuve, [1984] 1 R.C.S. 86. Voir également : Loi sur les océans du Canada, L.C. 1996, c. 31, art.18. Le territoire maritime des provinces se prolonge quant à lui jusqu’à la laisse de basse mer, les provinces sont donc propriétaires des ressources que contiennent les eaux intérieures. 9 À ce jour, 92 % de la superficie du Québec appartient à l’État.

La propriété face aux défis des biens communs au Québec

255

Cette présomption découle de la doctrine de la terra nullius selon laquelle nul ne possédait la terre avant la venue des européens (Normand 2020). Toutefois, dans une affaire opposant la nation autochtone Tsilhqot’in à la province de la ColombieBritannique, la Cour suprême a réitéré que cette doctrine ne s’est jamais appliquée au Canada10. Ainsi, les droits des autochtones sur les terres ont une existence juridique indépendante du titre de la Couronne (Brun, Tremblay et Brouillet 2014, 365) 11.

1.1.4.2

Règles applicables au domaine public

Les normes juridiques applicables au domaine public québécois relèvent parfois du droit privé, parfois du droit public. Il en résulte une propriété aux caractéristiques distinctes de la propriété des particuliers. Auparavant, la doctrine appliquait en droit québécois la théorie de la dualité domaniale selon laquelle « les biens d’une personne morale de droit public sont assujettis soit aux règles de droit public, soit aux règles de droit privé, selon que les biens sont ou non affectés à l’utilité publique » (Dictionnaire de droit privé 2018, sub verbo « dualité domaniale (théorie de la) »)12. Toutefois, cette théorie fut rejetée par la Cour d’appel du Québec tant sous le Code civil du Bas Canada que sous le Code civil du Québec13, en ce qui concerne la Couronne. Par conséquent, les privilèges et immunités dont bénéficient l’État s’appliquent à l’ensemble de ses biens, dès lors que ceux-ci sont affectés à une utilité publique ou privée14. La théorie de la dualité domaniale s’applique toutefois aux personnes morales de droit public, comme les sociétés d’État, les municipalités et les commissions scolaires (Normand 2020, 488). Selon le deuxième aliéna de l’article 916 du Code civil du Québec « nul ne peut s’approprier par occupation, prescription ou accession les biens de l’État, sauf ceux que ce dernier a acquis par succession, vacance ou confiscation, tant qu’ils n’ont pas été confondus avec ses autres biens. Nul ne peut non plus s’approprier les biens des personnes morales de droit public qui sont affectés à l’utilité publique ». Par

10

Nation Tsilhqot’in c. Colombie-Britannique, 2014 CSC 44, p. 292, par. 69. Le terme « Couronne » est un synonyme de reine, gouverneur et gouvernement : « Sauf lorsque les trois premiers sont utilisés pour désigner la personne du chef de l’État ou de ses représentants, ils signifient tous le gouvernement, fédéral ou provincial, selon le cas ». 12 Centre Paul-André Crépeau de droit privé et comparé (2018), Dictionnaire de droit privé en ligne, [ci-après DPP]. 13 HMI-Promec, s.e.n.c. c. 2954-4095 Québec Inc. (Construction Kay-Bek Inn), 2007 QCCA 1818, par. 21 (demande d’autorisation d’appel rejetée; 2954-4095 Québec Inc. (Construction Kay-Bek Inn) c. HMI-Promec s.e.n.c, [2008] R.C.S. 76): « Or, la dualité domaniale, telle qu’exprimée par l’article 916 in fine, ne s’applique pas aux biens de l’État ainsi que l’a décidé la Cour en 1973 dans l’arrêt Richard Lasalle Construction ltée c. Concepts Ltd. Les privilèges dont jouit l’État quant à sa propriété s’appliquent à tous ses biens puisque la distinction entre le domaine public et le domaine privé de l’État n’est pas reconnue dans notre droit ». 14 Par exemple, tous les biens de l’État sont insaisissables et imprescriptibles. 11

256

G. Gidrol-Mistral and A. Popovici

conséquent, les biens des personnes morales de droit public qui ne sont pas affectés à l’utilité publique tombent dans le domaine privé. Les biens du domaine public sont imprescriptibles ; cette règle est clairement énoncée à l’article 916 al. 2 C.c.Q. : « nul ne peut s’approprier par occupation, prescription ou accession les biens de l’État, sauf ceux que ce dernier a acquis par succession, vacance ou confiscation, tant qu’ils n’ont pas été confondus avec ses autres biens ». Les biens de l’État sont également insaisissables (Labrecque 1997, 23, 102–103). Cette insaisissabilité se fonde sur une prérogative de la Couronne (Borgeat et Dussault 1986, 23). Ces prérogatives désignent notamment « les quelques pouvoirs que le gouvernement peut exercer sans l’appui d’une habilitation législative. Il s’agit, là aussi, d’un résidu, très restreint, de l’époque où le roi avait tous les droits » (Brun, Tremblay et Brouillet 2014, 746–747 para IX.78). Enfin, les biens de l’État jouissent d’une immunité fiscale en vertu de l’article 125 de la Loi constitutionnelle de 1867. Cet article prévoit que « [n]ulle terre ou propriété appartenant au Canada ou à aucune province en particulier ne sera sujette à la taxation ». La question de la faculté de l’État de disposer des biens du domaine public sera traitée dans la section portant sur l’aliénation de ses biens (1.4).

1.1.5

Affectation

Soulignons une spécificité du droit des biens québécois. Depuis l’entrée en vigueur du nouveau Code civil du Québec en 1994, le législateur québécois reconnait à l’article 915 un nouveau type de relation aux biens, l’affectation. Article 915 Les biens appartiennent aux personnes ou à l’État, ou font, en certains cas, l’objet d’une affectation.

Article 915 Property belongs to persons or to the State or, in certain cases, is appropriated to a purpose.

Nous avons déjà vu l’exemple prévu à l’article 916 C.c.Q en ce qui a trait aux biens « des personnes morales de droit public qui sont affectés à l’utilité publique ». L’affectation particulière – ici vouée à l’utilité publique - de ces biens génère leur régime particulier. L’affectation peut également avoir un effet sur des cas d’indivision. L’article 1030 édicte que : Article 1030 Nul n’est tenu de demeurer dans l’indivision. Le partage peut toujours être provoqué, à moins qu’il n’ait été reporté par une convention, par une disposition testamentaire, par un jugement ou par l’effet de la loi, ou qu’il n’ait été rendu impossible du fait de l’affectation du bien à un but durable.

Article 1030 No one is bound to remain in indivision. Partition may be demanded at any time unless it has been postponed by an agreement, a testamentary provision or a judgment, or by operation of law, or unless it has become impossible because the property has been appropriated to a lasting purpose.

La propriété face aux défis des biens communs au Québec

257

Cette affectation permet d’imposer un régime d’indivision perpétuelle, qui imprime à la propriété une facture sociale et collective transformant les biens indivis détenus en communs en biens communs (Gidrol-Mistral 2016b). Finalement, la notion d’affectation prend toute son ampleur dans l’institution de la fiducie telle qu’on la retrouve en droit québécois. La fiducie y est comprise comme un patrimoine d’affectation, c’est-à-dire un patrimoine automne qui ne connaît pas de titulaire propre et qui peut être affecté à n’importe quel but (art. 1260 et 1261 C.c. Q.; Popovici 2012). Les prérogatives du fiduciaire, qui détient et administre le bien, ne sont pas des droits subjectifs, mais des pouvoirs (art. 1278 C.c.Q.; Cantin Cumyn 2007). La notion de pouvoir est définie comme une « prérogative juridique qui s’exerce dans un intérêt distinct du sien » (DPP 2018, sub verbo « pouvoir »)15. Ces pouvoirs sont limités par l’affectation des biens en fiducie qui génèrent des obligations légales notamment, l’obligation de prudence et diligence ainsi que l’obligation de loyauté (art. 1308-1310 C.c.Q.). La fiducie québécoise instaure un nouveau type de détention des biens, parallèle à la propriété, qui peut, entre-autre, poursuivre une fin d’intérêt général, et donc mettre en place une détention collective (art. 1270 C.c.Q.; Gidrol-Mistral et Popovici 2019; Marchand 2019) 16.

1.2

Le concept de « communs » est-il aujourd'hui présent ou était-il présent dans le passé dans votre système juridique ? Si la réponse est affirmative : est-il présent dans la législation, dans la jurisprudence, dans la doctrine ou dans la coutume ?

Le concept de « communs » tel que défini dans l’introduction n’existe pas en droit civil québécois. Soulignons que la situation dans la colonie, avant l’adoption du Code civil du Bas Canada, était très différente de celle qui prévalait en France avant 1804 (Lareau 1888, 157)17. En France, des droits collectifs d’usage sur des terres appropriées ainsi que des propriétés collectives familiales ou villageoises s’intègrent au système féodo-seigneurial engendrant des formes de propriétés collectives (Patault 1989, 67 par. 53; Vivier 2003, 139). Le contexte de colonisation de la Nouvelle-France favorise plutôt l’expansion de la propriété privative afin de développer l’agriculture et l’économie. Pour le pouvoir colonial, la Nouvelle-France représente un pays neuf « dont le plus grand besoin était celui d'habitants pour le mettre en valeur » (Zoltvany 1971, 373). En conséquent, seul le moulin, qui relève d’une obligation légale du seigneur, est d’usage commun (Gilles 2014, 208).

15

Centre Paul-André Crépeau de droit privé et comparé (2018), Dictionnaire de droit privé en ligne. Voir également : http://www.protec-terre.org/fusa. 17 La Coutume de Paris subit toutefois des modifications en raison des usages locaux. 16

258

G. Gidrol-Mistral and A. Popovici

Concernant les différentes nations autochtones présentes au Québec18, bien qu’il soit impossible dans ce rapport de décrire le mode d’utilisation et d’appropriation du territoire de chaque nation, soulignons qu’aucun ne correspond à la propriété privée ou publique19. Par ailleurs, la notion de propriété collective ne rend pas mieux compte de la complexité des différents rapports que peut tisser une nation autochtone ainsi que ses membres à l’égard du territoire (Normand 2019). Cette relation sui generis dévoile une « variété d’appartenance, de statuts, de responsabilités et de structures relationnelles » (Faget 2016, 151) qui place ces traditions dans un rapport au territoire nettement différent de celui suggéré par la propriété.

1.3

Le concept de “communs” est-il aujourd'hui présent dans le débat académique de votre pays et, le cas échéant, dans quel contexte spécifique ?

La notion de « communs » se retrouve peu dans les débats académiques québécois actuels, pas plus que la notion de « bien commun » (Clément-Fontaine 2012)20. Il est généralement accepté que la notion de « bien commun » désigne soit des choses communes (res communes) qui n’appartiennent à personne, soit des biens (au sens où ils sont appropriables ou appropriés) qui appartiennent à plusieurs personnes en même temps (Cantin Cumyn 2007, 2 note 2), par exemple issus de la communauté de biens des époux (DPP 2018, sub verbo « bien commun »; Lefebvre 2011, 41; Gidrol-Mistral 2016b; Reid 2016, sub verbo « bien(s) commun(s)) ou de biens indivis »; Lamontagne 2018, 94 par. 140; Lamontagne et Duchaine 2018; Normand 2020, 160)21. La nature des biens détenus par les associés d’une société a soulevé débat (BrasMiranda 2003a et b). Selon l’article 2186 du Code civil du Québec, la société est un contrat. Article 2186 Le contrat de société est celui par lequel les parties conviennent, dans un esprit de collaboration, d’exercer une activité, incluant celle d’exploiter une entreprise, d’y contribuer par la mise en commun de biens, de connaissances ou

Article 2186 A contract of partnership is a contract by which the parties, in a spirit of cooperation, agree to carry on an activity, including the operation of an enterprise, to contribute thereto by combining property, knowledge or activities and to (continued)

18

Ces nations sont les Abénaquis, Algonquins, Attikameks, Cris, Hurons-Wendats, Innus, Inuits, Malécites, Micmacs, Mohawks et Naskapis. 19 La Cour suprême du Canada les qualifie de « droit sui generis » : Terre-Neuve-et-Labrador (Procureur général) c. Uashaunnuat (Innus de Uashat et de Mani-Utenam), 2020 CSC 4. 20 Contrairement à la France où des juristes comme Mélanie Clément-Fontaine développent théoriquement la notion de « biens communs ». 21 Centre Paul-André Crépeau de droit privé et comparé (2018), Dictionnaire de droit privé en ligne; Reid (2016), Dictionnaire de droit québécois et canadien en ligne.

La propriété face aux défis des biens communs au Québec

d’activités et de partager entre elles les bénéfices pécuniaires qui en résultent.

259

share among themselves any resulting pecuniary profits.

Bien que l’absence de personnalité morale de la société soit clairement établie (Popovici 2013, 340), la question de la propriété des biens mis en commun par les associés demeure. Plusieurs théories ont été proposées : notamment la propriété collective, la copropriété sans part et le patrimoine d’affectation. La propriété collective est ici envisagée comme une modalité de la propriété distincte de l’indivision et de la personne morale (sur cette position, voir Bras-Miranda 2003a et b). Ce type de propriété rompt la distinction entre droit réel et droit personnel. De l’extérieur, la propriété collective apparait comme un simple rapport de propriété ; de l’intérieur, les membres sont liés par un ensemble d’obligations. La propriété collective représente « donc un rapport de droit spécifique né de la jonction contractuellement organisée de la propriété et de la personnalité. Cette jonction résulte, non pas de la reconnaissance du regroupement, par l’octroi abstrait de la personnalité, mais de l’affectation concrète des biens communs à un but collectif, par les propriétaires eux-mêmes » (Bras-Miranda 2003b, 245). Pour d’autres, les biens de la société constituent une nouvelle modalité de la propriété dans laquelle tous les associés sont collectivement propriétaires, sans qu’aucun ne soit individuellement propriétaire des biens affectés en tout ou partie, dévoilant une forme de copropriété sans part (Bouchard 1997, 261). Enfin, la Cour d’appel du Québec, dans une décision rendue en 2010, a jugé que les biens mis en commun constituent un patrimoine autonome et distinct22, à l’instar de la fiducie québécoise. Cette solution surprend puisque, bien que n’ayant pas la personnalité juridique, la société peut tout de même contracter des obligations et en répondre sur ses biens (Popovici 2013, 340)23.

1.4

Y-a-t-il dans votre système juridique un type de propriété publique qui soit absolument inaliénable ?

La doctrine de la dualité domaniale ne s’applique pas en droit québécois, ce qui devrait avoir pour conséquence que les biens appartenant à l’État soient inaliénables (voir infra). Cependant, l’État peut disposer des biens publics sous réserve des lois applicables au domaine public (Borgeat et Dussault 1986, 16).

22

Ferme CGR enr., s.e.n.c. (Syndic de), 2010 QCCA 719, par. 68 : « Les biens de la société constituent un patrimoine autonome, distinct de celui des associés, et qui est composé de l’apport de chaque associé ». 23 Ibid, par. 70.

260

G. Gidrol-Mistral and A. Popovici

Par exemple au Québec, le pouvoir du gouvernement d’aliéner ses biens est notamment prévu par la Loi sur les terres du domaine de l’État24. L’article 34 de cette loi dispose que : [l] e ministre peut vendre les terres sous son autorité ainsi que les bâtiments, les améliorations et les meubles qui s’y trouvent et qui font partie du domaine de l’État, aux conditions et au prix qu’il détermine conformément au règlement adopté à cette fin par le gouvernement. Il peut, de la même façon, consentir des droits sur ces terres.

Il en est de même des terres agricoles : Le ministre peut aliéner ou louer une terre non concédée à des fins qu’il juge dans l’intérêt de l’agriculture, des pêcheries ou de l’alimentation25.

D’autres lois modulent également l’aliénation de certains biens publics. Par exemple, l’aliénation des biens patrimoniaux du domaine de l’État requiert l’autorisation du ministre de la Culture et des Communications26. Quant aux terres publiques soumises à des régimes de protection permanents (réserves aquatiques, réserves de biodiversité, réserves écologiques et paysages humanisés), tout changement d’affectation, vente ou transaction modifiant leur statut, nécessite la consultation préalable du ministre du Développement durable, de l’Environnement et des Parcs27.

1.5

1.5.1

Existent-ils dans votre système juridique des remèdes qui permettent à quelqu'un de porter plainte contre un gouvernement qui décide de privatiser les biens communs ? Privatisation des biens publics

Tout acte d’administration est soumis au contrôle judiciaire (Beaudoin 2004, 797-798). Cependant, puisque le pouvoir de privatiser découle de la loi, la privatisation des biens publics faite dans les limites de la loi habilitante sera juridiquement incontestable. Aussi, les recours seront plus politiques que juridiques.

24

R.L.R.Q. c. T-8.1. Loi sur les terres agricoles du domaine de l'État, R.L.R.Q. c. T-7.1, art. 9 (1). 26 Loi sur le patrimoine culturel, P-9.002, art. 53 (1). 27 Loi sur la conservation du patrimoine naturel, L.R.Q. c. C-61.01, art 6. 25

La propriété face aux défis des biens communs au Québec

1.5.2

261

L’expropriation en droit québécois

Le pouvoir d’expropriation de l’État découle des articles 91 et 92 de la Loi constitutionnelle de 1867. En droit québécois, ce pouvoir est exercé par le gouvernement ou délégué à des personnes morales de droit public (municipalités ou commissions scolaires) ainsi qu’à différents organismes parapublics comme des compagnies de téléphone, d’électricité ou de chemins de fer (Emerich 2014, 713). L’article 952 du Code civil du Québec dispose que : Article 952 Le propriétaire ne peut être contraint de céder sa propriété, si ce n’est par voie d’expropriation faite suivant la loi pour une cause d’utilité publique et moyennant une juste et préalable indemnité.

Article 952 No owner may be compelled to transfer his ownership except by expropriation according to law for public utility and in return for a just and prior indemnity.

La notion d’utilité publique est interprétée de manière extensive (Emerich 2014, 719)28. La construction d’une école 29 de même que l’implantation d’un centre commercial et la construction des chemins pour s’y rendre répondent au critère d’utilité publique30. La Loi sur l’expropriation31 encadre les procédures liées à l’exercice de ce pouvoir par le gouvernement du Québec. L’expropriant dépose auprès du Tribunal administratif du Québec (TAQ) un plan et une description de l’immeuble ou du droit réel immobilier visé (art. 39 Loi sur l’expropriation). L’exproprié est ensuite signifié par l’instance d’expropriation du TAQ ; l’assignation informe de la possibilité de contester l’expropriation (art. 40 al. 1 (3) Loi sur l’expropriation). En vertu de l’article 44 al. 1, l’exproprié peut, dans les 30 jours qui suivent la date de la signification de l’avis d’expropriation, contester le droit de l’expropriant à l’expropriation au moyen d’une demande à la Cour supérieure du

28 Voir également : Dupras c. Ville de Mascouche, 2020 QCCS 2538. Plus spécifiquement aux par. 106 et suiv. pour voir les formes d’expropriation déguisée. 29 Devette c. Boucherville (Ville), [1993] J.Q. no 1700, [1993] R.D.I. 564, par. 17 (C.S.) : « Je m'interroge sur l'utilité publique visée par la Ville, tel qu'il appert du témoignage de Richard Jutras. On ne m'a pas démontré que les cyclistes, qui forment une faible partie de la population, vont s'arrêter en grand nombre pour admirer les beautés du St-Laurent à cet endroit. Je ne trouve pas, ici, la même notion d'utilité publique que lors de l'ouverture d'une rue, la construction d'une école ou la construction d'une belle grande superficie de terrain en parc communautaire propre à la santé ou au bien-être de la population, comme le veut l'article 415, paragraphe 4, de la Loi sur les cités et villes. Cet argument m'apparaît plutôt un prétexte pour se départir d'un propriétaire privé, cause de certains désagréments, puisqu'on doit l'aviser de l'utilisation de son terrain, de temps en temps, en plus de ne pas se sentir chez soi ». 30 Loiseau c. Ste-Agathe-Sud (Corp. Municipale de), [1989] J.Q. no 2543, [1989] R.D.I. 491 (C.S.) aux paras 9-13. Plus spécifiquement au para 9 : « En l'instance, nul doute que l'implantation de ce centre commercial en plus d'augmenter considérablement la valeur foncière de la Municipalité, desservira tous les citoyens de la Municipalité ». 31 R.L.R.Q. c. E-24 [ci-après Loi sur l’expropriation].

262

G. Gidrol-Mistral and A. Popovici

district où est situé le bien à exproprier. Cette demande doit être signifiée à l’expropriant et au Tribunal et elle doit être instruite et jugée d’urgence.

La même procédure doit être suivie dans le cas d’une expropriation en vertu d’autres lois. Ainsi, l’article 235 al. 2 de la Loi sur les mines prévoit qu’à « [d]éfaut d’entente à cette fin, le titulaire de droit minier ou le propriétaire de substances minérales peut, pour l’exécution de ses travaux d’exploitation, acquérir le bien visé au premier alinéa par expropriation »32. La Loi sur les hydrocarbures prévoit la même procédure. « À défaut d’entente, le gouvernement peut, aux conditions qu’il détermine, autoriser le titulaire à acquérir ces droits réels ou ces biens par expropriation, conformément à la Loi sur l’expropriation, pour lui permettre d’accéder au territoire et d’y exécuter ses travaux »33. L’expropriation du fait des autorités publiques est donc strictement encadrée et contrôlée. Or, il existe des formes sui generis d’expropriations privées qui échappent au contrôle mis en place par la loi. Il est en effet possible d’envisager que le droit privé connait plusieurs formes d’expropriations privées. Ainsi, Yaëll Emerich relève trois hypothèses susceptibles d’être qualifiées d’expropriation, « l’accession, l’accès au fonds d’autrui en cas d’empiètement mineur réalisé de bonne foi et la prescription acquisitive » (Emerich 2014, 727–729; Emerich 2017, 224; Lamontagne 2018, 168 par. 208)34. Ici, en réalité, le propriétaire perd son bien au profit d’un autre par l’effet de la loi. Il est intéressant de noter qu’une décision récente de la Cour d’appel du Québec, ayant à se prononcer sur l’existence d’un droit de passage découlant d’une enclave économique, a fait primer le droit collectif des propriétaires de la communauté sur le droit individuel du propriétaire enclavé pour empêcher une expropriation privée d’une dizaine de terrains qui auraient été grevés d’un droit de passage (contra Devinat 2020)35. Par ailleurs, le droit civil permet par le truchement des droits réels de limiter perpétuellement un droit de propriété, ouvrant la voie d’une forme d’expropriation purement privée. Ainsi, dans un jugement récent, la Cour supérieure s’est penchée sur la légalité d’une servitude grevant tous les immeubles situés sur l’île Sainte Thérèse et restreignant considérablement les prérogatives des propriétaires : interdiction de destination commerciale et limitation à une unique résidence par lot36. Cette restriction purement privée contraint à tel point les pouvoirs du propriétaire que l’on peut se demander s’il est encore question de droit propriété. La consécration 32

Loi sur les mines, L.R.Q., c. M-13.1 [ci-après Loi sur les mines]. PL n°106, Loi concernant la mise en œuvre de la Politique énergétique 2030 et modifiant diverses dispositions législatives, 1ère sess, 41e lég, Québec, 2016 (sanctionné le 10 décembre 2016), art. 58. 34 Outre l’expropriation du fait des autorités publiques, le droit privé connait plusieurs formes d’expropriation privée. Selon Yaëll Emerich (2014), trois hypothèses sont susceptibles d’être qualifiées d’expropriation au sens d’une loi impose à un particulier l’obligation de céder son bien à un autre particulier : « l’accession, l’accès au fonds d’autrui en cas d’empiètement mineur réalisé de bonne foi et la prescription acquisitive ». 35 Rankin c. Gaucher, 2019 QCCA 1718. 36 Nadeau c. Habitations Jeandami inc., 2019 QCCS 5273. 33

La propriété face aux défis des biens communs au Québec

263

des droits réels innommés perpétuels (Normand 2020, 347) permet d’imaginer à l’infini ce type d’« expropriation ».

1.5.3

Recours spécifiques à l’encontre de la construction d’un pipeline en droit canadien et autochtone

Au fédéral, le gouvernement exerce notamment son pouvoir d’expropriation37 en matière de construction de pipelines qui relient une province à une ou plusieurs autres (Borgeat et Dussault 1986, 40)38. La procédure est encadrée par la Régie de l’énergie du Canada, un organisme administratif qui exerce des fonctions quasi judiciaire. En vertu de la Loi sur la Régie canadienne de l’énergie, les particuliers bénéficient de recours leur permettant de contester la décision et les recommandations d’accorder un certificat d’utilité publique permettant la construction d’un pipeline interprovincial autant que le tracé du pipeline 39. Au Canada, les nombreuses nations autochtones bénéficient de recours contre la construction de pipelines 40. Les droits et intérêts des peuples autochtones sont

37

L’article 313 de la Loi sur la Régie canadienne de l’énergie L.C. 2019 c. 28, art. 10 [ci-après Loi sur la Régie canadienne de l’énergie] donne les pouvoirs suivants aux compagnies qui bénéficient d’un certificat d’utilité publique : « Sous réserve des autres dispositions de la présente loi et de toute loi spéciale la concernant, la compagnie peut, dans le cadre de son entreprise : (a) pénétrer sans autorisation sur tout terrain, appartenant ou non à la Couronne et situé sur le tracé de son pipeline, et y faire les levés, examens ou autres préparatifs requis pour fixer l’emplacement de celui-ci et marquer et déterminer les parties de terrain qui y seront appropriées; (b) acquérir et détenir les terrains ou autres biens nécessaires à la construction, à l’entretien, à l’exploitation et à la cessation de l’exploitation de son pipeline ou à l’entretien de son pipeline abandonné, et disposer, notamment par vente, de toute partie des terrains ou biens devenue inutile pour les besoins du pipeline ou du pipeline abandonné; (c) construire, poser, transporter ou placer son pipeline sur, à travers ou sous les terrains situés le long du tracé du pipeline [. . .] ». 38 L’article 2 de la Loi sur la Régie canadienne de l’énergie définit le pipeline. Pour les étapes que la Régie doit suivre avant d’entreprendre un projet pipelinier : voir Guide à l’intention des propriétaires fonciers : https://www.cer-rec.gc.ca/fr/consultation-mobilisation/guide-lintentionproprietaires-fonciers/. 39 Il est possible de demander le contrôle judiciaire du décret ministériel et du tracé par la Cour d’appel fédérale en vertu de la Loi sur la Régie canadienne de l’énergie. Ces recours sont ouverts aux compagnies qui se voient refuser un certificat, mais également aux particuliers qui souhaitent s’opposer à la construction ou au tracé d’un pipeline. Les décisions de la Régie de l’énergie du Canada peuvent également être l’objet d’un appel à la Cour fédérale. 40 Voir également : le contentieux lié à l’entreprise TransCanada Keystone Pipeline GP Ltd : Nation Ojibway de Brokenhead c. Canada (Procureur général), 2009 CF 484; Première nation dakota de Standing Buffalo c. Enbridge Pipelines Inc., 2009 CFA 308 (Autorisation d’appeler refusée, Standing Buffalo Dakota First Nation et al c. TransCanada Keystone Pipeline GP Ltd. et al., 2010 CanLII 70763 (C.S.C.)) [Première nation dakota de Standing Buffalo].

264

G. Gidrol-Mistral and A. Popovici

d’ailleurs désormais reconnus par la Loi sur la Régie canadienne de l’énergie (art. 56 et suiv.) qui se fondent sur le paragraphe 35 (1) de la Loi constitutionnelle de 198241 et sur l’obligation de consulter les nations autochtones lorsque des répercussions défavorables sont susceptibles de porter atteinte à leurs droits ou intérêts. L’obligation de consulter découle du principe de l’honneur de la Couronne42.

1.5.4

Privatisation des services publics

Enfin, le contexte constitutionnel canadien, il est intéressant de mentionner le débat entourant l’article 36 de la Loi constitutionnelle de 1982. Cet article prévoit que : 36. (1) Sous réserve des compétences législatives du Parlement et des législatures et de leur droit de les exercer, le Parlement et les législatures, ainsi que les gouvernements fédéraux et provinciaux, s’engagent à : (a) promouvoir l’égalité des chances de tous les Canadiens dans la recherche de leur bienêtre ; (b) favoriser le développement économique pour réduire l’inégalité des chances ; (c) fournir à tous les Canadiens, à un niveau de qualité acceptable, les services publics essentiels. (2) Le Parlement et le gouvernement du Canada prennent l’engagement de principe de faire des paiements de péréquation propres à donner aux gouvernements provinciaux des revenus suffisants pour les mettre en mesure d’assurer les services publics à un niveau de qualité et de fiscalité sensiblement comparables.

Selon Shelagh Day et Gwen Brodsky, cet article exprime une valeur sous-jacente d’égalité et de sécurité pour tous et toutes qui soutient l’engagement des gouvernements canadiens et des provinces à fournir des services publics essentiels (Day et Brodsky 2007, 75). Un autre auteur soutient qu’il s’agit de l’un des fondements constitutionnels du droit substantif à l’eau (Boyd 2011, 120). Sans nécessairement octroyer un droit d’action aux particuliers, cet article permettrait à tout le moindre au gouvernement fédéral d’établir des standards nationaux quant à la qualité des services publics essentiels (Day et Brodsky 2007, 77; Hogg 2007, par. 6.6; Brun, Tremblay et Brouillet 2014, par. IV.17). La décision Cape-Breton Regional Municipality v Attorney General of Nova Scotia présente l’interprétation la plus étendue de cet article43. Dans cette affaire entendue par la Cour d’appel de la Nouvelle-Écosse, la municipalité régionale de Cape-Breton reproche au gouvernement néo-écossais de ne pas répondre adéquatement aux disparités économiques et de ne pas s’acquitter de ses obligations

41

Loi constitutionnelle de 1982, constituant l’annexe B de la Loi de 1982 sur le Canada (R.-U.), 1982, c. 11 [ci-après Loi constitutionnelle de 1982]. 42 Nation Haïda c. Colombie-Britannique (ministre des Forêts), [2004] 3 R.C.S. 511, par. 35. 43 Cape-Breton Regional Municipality v. Attorney General of Nova Scotia, 2009 NSCA 44 (demande d'autorisation d'appeler refusée: Cape Breton Regional Municipality v. Attorney General of Nova Scotia, [2009] C.S.C.R. no 284) [ci-après Cape-Breton].

La propriété face aux défis des biens communs au Québec

265

constitutionnelles inscrites à l’article 36 de la Loi constitutionnelle de 1982. La Cour d’appel rejette la demande pour cause d’absence d’intérêt à agir de la municipalité44. Elle note toutefois que le terme « s’engagent » du paragraphe 36 (1), pourrait indiquer que les parties sont tenues de réaliser les éléments énumérés45 (promouvoir l’égalité des chances dans la recherche du bien-être de tous les Canadiens, favoriser le développement économique pour réduire l’inégalité des chances et fournir à tous les Canadiens, à un niveau de qualité acceptable, les services publics essentiels) et qu’il n’est pas exclu qu’un gouvernement intente un recours pour s’assurer du respect de ces obligations par l’autre pallier de gouvernement. À ce jour, aucune action en justice n’a permis de vérifier si l’article 36 permettrait de s’opposer à la privatisation de certains services publics essentiels (notamment, les services de santé et d’éducation). Il s’agit, dans la plupart des cas, d’une question débattue et défendue au niveau politique plutôt que juridique.

1.6

Existent-ils dans votre système juridique des remèdes qui permettent à quelqu'un de porter plainte contre un gouvernement qui décide de nationaliser les biens communs ?

Les « biens communs » entendus dans le sens civiliste de choses communes (art. 913 C.c.Q.) sont à l’usage de tous. Si théoriquement, la res communes semble s’opposer à l’idée de nationalisation, l’exception prévue à l’alinéa 2 de l’article 913 permet l’exploitation de ces biens tant par des entreprises publiques que privées. Article 913 Certaines choses ne sont pas susceptibles d’appropriation; leur usage, commun à tous, est régi par des lois d’intérêt général et, à certains égards, par le présent code. L’air et l’eau qui ne sont pas destinés à l’utilité publique sont toutefois susceptibles d’appropriation s’ils sont recueillis et mis en récipient.

Article 913 Certain things may not be appropriated; their use, common to all, is governed by general laws and, in certain respects, by this Code. However, water and air not intended for public utility may be appropriated if collected and placed in receptacles.

Ainsi, rien n’empêche le gouvernement de s’approprier ces “biens communs”. La nationalisation de l’exploitation de la ressource constitue une forme de privatisation à des fins publiques. L’exemple d’Hydro Québec, personne morale d’utilité publique, est caractéristique de ce type de nationalisation. Dans cette situation, ce n’est pas l’eau qui est nationalisée, elle demeure une res communes, mais la production d’électricité exploitée par cette entreprise publique. Il faut souligner

44 45

Cape-Breton, préc. note 44, par. 56. Ibid, par. 56.

266

G. Gidrol-Mistral and A. Popovici

qu’à sa naissance il y a eu expropriation des entreprises privées exploitant la ressource46. Cependant, la loi sur l’eau encadre strictement l’exploitation de la ressource hydrique : toute personne est tenue de réparer les dommages qu’elle cause aux ressources en eau47, ce qui complète les dispositions du droit commun. Ainsi, l’article 982 du Code civil permettrait d’envisager un recours préventif pour préserver la qualité de l’eau ouvert à tout citoyen puisque l’eau est une res communes. Article 982 À moins que cela ne soit contraire à l’intérêt général, celui qui a droit à l’usage d’une source, d’un lac, d’une nappe d’eau ou d’une rivière souterraine, ou d’une eau courante, peut, de façon à éviter la pollution ou l’épuisement de l’eau, exiger la destruction ou la modification de tout ouvrage qui pollue ou épuise l’eau.

Article 982 Unless it is contrary to the general interest, a person having a right to use a spring, lake, sheet of water, underground stream or any running water may, to prevent the water from being polluted or depleted, require the destruction or modification of any works by which the water is being polluted or depleted.

Comme cet exemple l’indique, aucun recours spécifique contre la nationalisation de « biens communs » n’existe. Le remède serait donc de nature plus politique que juridique.

1.7

Jusqu'à quel point la propriété privée est-elle considérée un droit fondamental dans votre système juridique ? Quels sont les autres droits constitutionnels qui pourraient primer sur la propriété privée ?

Au Canada, le droit de propriété ne jouit pas d’une protection constitutionnelle, malgré les propositions énoncées en ce sens au cours des négociations portant sur la Charte canadienne des droits et libertés et les tentatives d’amendement subséquentes (Debruche 2006, 209). Au Québec, la Charte québécoise, qui a une portée quasi-constitutionnelle (Morel 1987), prévoit que : « Toute personne a droit à la jouissance paisible et à la libre disposition de ses biens, sauf dans la mesure prévue par la loi »48. Bien que situé dans la section portant sur les « Libertés et droits fondamentaux », l’expression « sauf dans la mesure prévue par la loi » énonce une limite particulière qui exclut le statut constitutionnel à l’article 6 (Debruche 2006, 185; Rayneault 2008, 27; Brun, Brun et Lafontaine 2016). Dans l’affaire

46 Voir également : Loi établissant la Commission hydroélectrique de Québec, S.Q. 1944, c. 22; Cette loi expropriait « tous les biens meubles et immeubles servant à la production, à la transmission (sic) et à la distribution du gaz et de l’électricité ». 47 Voir également : Loi affirmant le caractère collectif des ressources en eau et favorisant une meilleure gouvernance de l’eau et des milieux associés, préc. note 4, art. 6, 7, 8, 9 et 11. 48 Charte québécoise, préc. note 5, art 6.

La propriété face aux défis des biens communs au Québec

267

Municipalité Régionale de comté d’Abitibi c Ibitiba ltée, la Cour d’appel du Québec a rappelé que l’article 6 de la Charte québécoise reconnait la « sujétion du droit de propriété individuel à la législation et réglementation collective »49. Par conséquent, les limitations à l’exercice du droit de propriété doivent être prévues par la loi. Le Code civil et de nombreuses lois particulières limitent et encadrent les usages que les propriétaires peuvent faire de leur bien (Lafond 2007, 303 par. 768). C’est le cas en matière de gestion du territoire par le zonage50 ou de protection de l’environnement (Choquette 2008, 266)51. Le droit de propriété protégé par l’article 6 de la Charte québécoise peut également être limité par les autres droits et libertés de la personne prévus par la Charte52. Certaines limites sont expressément intégrées dans le Code civil du Québec, notamment en matière d’écoulement et d’usage des eaux, des murs, des fossés et des ouvrages mitoyens, des vues, de l’enclave, de l’accès au fonds d’autrui et des troubles anormaux du voisinage (Lafond 2007, 303 par. 768)53. Donc, en droit civil québécois, la propriété privée n’est donc pas absolue et ne connait aucune protection constitutionnelle, ce qui ouvre la voie à la remise en cause de la propriété privée par d’autres droits constitutionnels.

49

Municipalité Régionale de comté d'Abitibi c. Ibitiba ltée, 1993 CanLII 3768 (C.A.). Loi sur l’aménagement et l’urbanisme, R.L.R.Q. c. A-191 [ci-après LAU]. 51 Dans certains cas, l’importance de certains intérêts environnementaux peuvent mener à l’expropriation. Selon la Loi sur la conservation du patrimoine naturel (L.R.Q. c. C-6101, art 8, par. 4), le ministre du Développement durable, de l’Environnement et des Parcs reçoit le pouvoir de louer ou d’acquérir des biens ou des droits réels sur des biens soit de gré à gré, soit par expropriation faite conformément à la Loi sur l’expropriation. Toutefois, dans la plupart des cas, les lois et règlements encadrent ou limitent les usages possibles du bien par le propriétaire; Par exemple, tel que le précise Catherine Choquette (2008, 266), dans les dernières années, plusieurs municipalités ont adopté des règlements visant « la mise en place de mesures de protection ou de restauration de la végétation qui borde les plans d’eau (communément désignée sous le vocable « bande riveraine »), dans le but de minimiser l’érosion des rives et les apports de phosphore par ruissellement ». La validité d’un règlement de la sorte fut confirmée par la Cour d’appel du Québec dans la décision Wallot c. Québec, 2011 QCCA 1165, par. 39. 52 La Cour d’appel du Québec souligne : « Although Section 6 acknowledges the recognition our society accords to property rights, these rights are subject to an inherent limitation, expressly stated in Section 6 itself: property rights are limited by the restrictions provided for by law, including above all those limits which stem from the respect of other charter rights ». Québec (Commission des droits de la personne) c. Desroches, [1997] J.Q. no 1903, par. 76. 53 Voir également : art. 976 et suiv. C.c.Q. 50

268

1.8

1.8.1

G. Gidrol-Mistral and A. Popovici

La propriété privée est une institution construite pour permettre l'exclusion. Existent-ils des limites opposables au pouvoir d'exclure du propriétaire et qui sont justifiés par le droit d'accès du non-propriétaire ? En matière de droit privé

En droit civil québécois, le droit de propriété connait des limites qui permettent l’accès au bien à un non propriétaire. Ainsi, les modalités et les démembrements de la propriété permettent aux non propriétaires d’accéder aux biens d'autrui sous certaines conditions. Concernant les modalités de la propriété, il suffit de penser au droit d’accès du propriétaire superficiaire à son bien. Cette propriété étant une propriété en volume, le superficiaire a nécessairement un droit d’accès à la propriété du tréfoncier (art. 1111 C.c.Q.). Quant aux démembrements, les servitudes réelles en donnent de nombreuses illustrations (art. 1177 C.c.Q. et suiv.). Ainsi, le droit de puisage impose l’accès du propriétaire du fonds dominant au fonds servant et génère l’obligation accessoire d’accéder au terrain d’autrui. Le Code civil prévoit par ailleurs des modes d’accès légaux dans des situations de voisinage dans le chapitre consacré aux « règles particulières de la propriété immobilière » (art. 976 et suiv. C.c.Q.). À titre d'exemple, la servitude de tour d’échelle est une « [l] imitation du droit de propriété sur un immeuble conférant un droit d’accès nécessaire pour faire ou entretenir des constructions, ouvrages ou plantations sur un fonds voisin » (Tremblay 2017; DPP 2018 sub verbo « servitude de tour d’échelle »)54. D’origine coutumière (Normand 2020, 124), cette limite est codifiée à l’article 987 du Code civil du Québec : Article 987 Tout propriétaire doit, après avoir reçu un avis, verbal ou écrit, permettre à son voisin l’accès à son fonds si cela est nécessaire pour faire ou entretenir une construction, un ouvrage ou une plantation sur le fonds voisin.

Article 987 Every owner of land, after having been notified verbally or in writing, shall allow his neighbour access to it if that is necessary to make or maintain a construction, works or plantation on the neighbouring land.

L’accès au terrain d’autrui ouvre cependant un droit à la réparation du préjudice subi et à la remise en état du terrain (art. 988 C.c.Q.). Récemment, au Québec, l’accès au fonds d’autrui par un propriétaire d'un fonds enclavé a donné lieu à un nouvelle controverse doctrinale. Le propriétaire d’un fonds économiquement enclavé s'est vu refusé par la Cour d’appel du Québec l’accès aux terrains de ses voisins. Bien que l'article 997 du Code civil du Québec prévoit le droit de passage lorsque le fonds est enclavé, les circonstances particulières de l’affaire

54

Centre Paul-André Crépeau de droit privé et comparé (2018), Dictionnaire de droit privé en ligne.

La propriété face aux défis des biens communs au Québec

269

ont conduit les juges à circonscrire ce droit. Le propriétaire d’une résidence située dans un lieu de villégiature accessible par voie navigable que quelques mois par an, voulait ouvrir une voie terrestre passant sur une dizaine de terrains privés. Jugeant que la destination tant du lieu que des biens d’autrui serait affecté, la Cour d’appel n’a pas accordé l’accès aux terrains d’autrui comme le prévoit la loi, faisant donc primer l’intérêt collectif sur la propriété privée (contra: Devinat 2020)55. Dernier exemple, celui de l’accès aux cours d’eau navigable et flottable. Indépendamment de la propriété des lits des cours d’eau, généralement propriété de l’État, toute personne ayant légalement accès à un cours d’eau navigable et flottable peut y circuler (art. 920 C.c.Q.). Aussi, l’eau étant une res communes, il semble possible d'envisager que tout citoyen québécois puisse avoir accès à ces cours d'eau... à condition d'y avoir un accès terrestre.

1.8.2

En matière de droit public

Le droit public complète l’arsenal du droit privé. Ainsi, l’article 3 de la Loi sur l’eau prévoit que le ministre du Développement durable, de l’Environnement et des Parcs peut prendre des mesures afin de favoriser l’accès public au fleuve Saint-Laurent et aux autres plans ou cours d’eau56. Les abords de certains cours d’eau comme les berges ont longtemps été propriété de l’État en raison d’un principe de droit commun qu’on appelle la « réserve des trois chaînes ». Cela avait pour effet de garantir un accès public aux citoyens québécois. Cependant, la propriété de ces lots de terre est maintenant dévolue aux propriétaire riverain 57. L’accès à l’eau potable des personnes physiques, consacré par l’article 3 de la Loi sur l’eau, soulève également ces enjeux58. Malgré la réaffirmation de la nature de res communes de l’eau, cette loi rend l’État garant des conditions d'accès à cette ressource naturelle. Aussi, Halley et Tremblay (2008, 376) soulignent qu’au Québec, la question de l’accès à l’eau se confond avec celle de l’accès à un service d’approvisionnement en eau59. Madeleine Cantin Cumyn (2007, 600) rappelle 55

Rankin c. Gaucher, préc. note 36. L’article se lit comme suit : « La protection, la restauration, la mise en valeur et la gestion des ressources en eau sont d’intérêt général et concourent à l’objectif de développement durable. Afin de favoriser l’accès public au fleuve Saint-Laurent et aux autres plans ou cours d’eau, notamment pour permettre à toute personne d’y circuler dans les conditions prévues à l’article 920 du Code civil, le ministre du Développement durable, de l’Environnement et des Parcs peut prendre des mesures à cette fin ». 57 Loi sur les terres du domaine de l’État, préc. note 26, art. 45.4. 58 « Dans les conditions et les limites définies par la loi, chaque personne physique, pour son alimentation et son hygiène, a le droit d’accéder à l’eau potable ». 59 Tremblay et Halley soulignent : « Dans l’ensemble, une personne située dans le voisinage d’un réseau exploité par une entreprise d’aqueduc ou un réseau municipal bénéficie du droit de s’y raccorder et de s’y approvisionner en eau courante. En pratique, cela implique l’accès à des quantités d’eau potable largement suffisantes pour satisfaire les besoins domestiques essentiels. Par contre, en l’absence d’un réseau d’aqueduc public ou privé, les citoyens doivent assurer 56

270

G. Gidrol-Mistral and A. Popovici

avec force que le droit d’accès à l’eau potable « est indépendant de la propriété du sol ». Finalement, il est intéressant de relever que l’État, à l’inverse des personnes privées, se prive du droit d’exclure l’accès à ses terrains. Ainsi, l’article 53 de la Loi sur les terres du domaine de l’État énonce que « [t]oute personne peut passer sur les terres du domaine de l’État, sauf dans la mesure prévue par une loi ou par un règlement du gouvernement ».

2 Questionnaire : Partie II 2.1

Logement

Les familles de John, Orri, Sekela et Satoshi sont, avec leurs enfants, désespérément à la recherche de logements à un prix accessible. Ils occupent entre temps des maisons bâties dans le cadre d’un projet immobilier, lequel est suspendu en raison de certains délais concernant les permis de construction. Les quatre amis et leur famille effectuent des travaux sur les maisons et sur leurs terrains afin d’améliorer leurs conditions de vie (par exemple, en peignant les murs et en aménageant des espaces verts). Après quelques mois, le responsable des affaires juridiques du projet immobilier, s’étant aperçu de leur présence sur les lieux, entame une procédure d’éviction. Les familles s’y opposent et intentent un recours contre ce dernier.

2.1.1

Éviction des occupants

Afin de contextualiser les recours des quatre amis et de leur(s) famille(s) contre la compagnie immobilière, rappelons que cette dernière bénéficie de l’action pétitoire pour revendiquer ses biens contre toute personne qui les détiennent sans droit (art. 953 C.c.Q.). Pour procéder à l’éviction des occupants, la compagnie devra déposer une demande d’injonction à la Cour supérieure. L’article 509 du Code de procédure civile précise que « l’injonction est une ordonnance de la Cour supérieure enjoignant à une personne ou, dans le cas d’une personne morale, d’une société ou d’une association ou d’un autre groupement sans personnalité juridique, à ses dirigeants ou représentants, de ne pas faire ou de cesser de faire quelque chose ou d’accomplir un acte déterminé »60. Ainsi le jugement prononcé pourrait être signifié tant aux

eux-mêmes leur approvisionnement en eau potable. Dans ce cas, l’approvisionnement peut notamment se faire à partir des eaux de surface ou souterraines auxquelles les citoyens ont accès dans les limites de leur propriété ou par camion-citerne ». 60 Code de procédure civile, R.L.R.Q. c. C-25.1 [ci-après C.p.c.].

La propriété face aux défis des biens communs au Québec

271

personnes physiques à titre personnel, qu’au groupement sans personnalité juridique que constitue les quatre amis et leurs familles. Dans le cas où les occupants refuseraient de se soumettre à l’ordonnance prononcée par la Cour supérieure, ils sont susceptibles d’être accusés d’outrage au tribunal en vertu de l’article 58 C.p.c. Dans le cas d’une intervention policière, ajoutons qu’ils pourraient également être accusés de méfait, une infraction prévue à l’article 430 du Code criminel canadien « Commet un méfait quiconque volontairement, selon le cas a) détruit ou détériore un bien; b) rend un bien dangereux, inutile, inopérant ou inefficace; c) empêche, interrompt ou gêne l’emploi, la jouissance ou l’exploitation légitime d’un bien; d) empêche, interrompt ou gêne une personne dans l’emploi, la jouissance ou l’exploitation légitime d’un bien »61. À noter que le méfait est une infraction d’intention générale. Il convient seulement de prouver que les occupants avaient l’intention d’utiliser les biens. Face à la protection renforcée du droit de propriété immobilière, les habitants peuvent opposer quelques moyens de défenses selon les circonstances factuelles, dont des recours politiques.

2.1.2

Défenses des habitants

Les règles de droit positif permettent d'envisager plusieurs recours possibles que nous allons successivement aborder.

2.1.2.1

Acquisition par prescription

Les habitants ont occupé l’immeuble en agissant à titre de possesseur. La possession est définie à l’article 921 C.c.Q. : Article 921 La possession est l’exercice de fait, par soi-même ou par l’intermédiaire d’une autre personne qui détient le bien, d’un droit réel dont on se veut titulaire. Cette volonté est présumée. Si elle fait défaut, il y a détention.

Article 921 Possession is the exercise in fact, by a person himself or by another person having detention of the property, of a real right, with the intention of acting as the holder of that right. The intention is presumed. Where it is lacking, there is merely detention.

La possession suppose la présence d’un corpus du bien et d’un animus. Les quatre amis et leur(s) famille(s) ayant la jouissance matérielle de l’immeuble et se comportant comme propriétaires remplissent donc ces deux critères.

61

Code criminel, L.R.C. 1985, c. C-46.

272

G. Gidrol-Mistral and A. Popovici

La possession permet de fonder la prescription acquisitive (art. 930 et 2913 C.c. Q.), mode originaire d’acquisition des biens par l’écoulement du temps (art. 916 al. 1, 2910 et 2875 C.c.Q.). Pour produire ses effets et fonder la prescription acquisitive (art. 2911 C.c.Q.), la possession doit être paisible, continue, publique et non équivoque (art. 922 C.c.Q.), mais elle n’a pas besoin d’être de bonne foi62. En matière immobilière, la prescription acquisitive est soumise au délai de dix ans, peu importe la bonne ou mauvaise foi du possesseur (art. 2918 C.c.Q.). Une fois le délai écoulé, le possesseur acquiert le bien immobilier sans formalité (GidrolMistral et Tran Tran 2016)63. Ainsi, si dix ans se sont écoulés, ils pourront revendiquer l’acquisition du droit de propriété sur l’immeuble occupé, mettant fin à l’action du verus domini. Si la prescription ne s'est pas accomplie, les quatre amis et leur(s) famille(s) seront alors seulement détenteurs et ne pourront bénéficier des effets de la possession.

2.1.2.2

Détention de l’immeuble

Dans le cas où les occupants sont des détenteurs, ils ne peuvent s’opposer au recours en revendication de la compagnie immobilière et devront se plier à la demande d’éviction. Toutefois, le bail par tolérance pourrait leur ouvrir certains droits. Il existe en effet un droit au maintien dans les lieux dans le Code civil du Québec. A priori, cette protection bénéficie aux locataires, leur époux, le conjoint uni civilement d’un locataire ou, s’il habite avec ce dernier depuis au moins six mois, son conjoint de fait, un parent ou un allié, et même la personne qui habite avec le locataire au moment de sa mort (art. 1938 C.c.Q.), d’un logement ayant signé un bail (art. 1936 C.c.Q.). Cependant, ils pourraient alléguer l'existence d’un bail par tolérance avec la compagnie. Selon l’article 1853 al. 2 C.c.Q. : « Le bail portant sur un bien immeuble est, pour sa part, présumé lorsqu’une personne occupe les lieux avec la tolérance du propriétaire. Ce bail est à durée indéterminée; il prend effet dès l’occupation et comporte un loyer correspondant à la valeur locative ». Selon Pierre-Gabriel Jobin, « [t]outes les règles élaborées sur le consentement au bail par tolérance se résument à une seule, en réalité: il faut et il suffit que le propriétaire ait consenti à l'occupation de son immeuble, sans plus; ce consentement peut être exprès ou tacite; le cas classique est celui où le propriétaire connaît l'occupation mais ne s'y oppose pas » (1996, 125). Pour que cet argument porte ses fruits, il leur faudra donc prouver que la compagnie avait connaissance de leur occupation et qu’elle n’a pas agi pour les déloger. S’ils ont gain de cause, ils devront alors acquitter un loyer locatif, y compris sur les arriérés non prescrits.

62 63

Bourgeois c. Société immobilière L'Assomption inc, 2013 QCCS 570. Ostiguy c. Allie, 2017 CSC 22.

La propriété face aux défis des biens communs au Québec

273

En cas d’échec et que les quatre amis et leur(s) famille(s) doivent quitter les lieux, ils pourront obtenir une compensation pour les travaux réalisés dans l’immeuble.

2.1.2.3

Améliorations

Les améliorations effectuées par les occupants appartiennent au propriétaire de l’immeuble par le mécanisme de l’accession, mode originel d’acquisition de la propriété (art. 955 C.c.Q.). Ainsi, le Code civil du Québec prévoit à l’article 957 que « [l]e propriétaire de l’immeuble acquiert par accession la propriété des constructions, ouvrages ou plantations faits sur son immeuble par un possesseur, que les impenses soient nécessaires, utiles ou d’agrément ». Le système de compensation mis en place ressort de la théorie des impenses qui distinguent le possesseur de bonne foi du possesseur de mauvaise foi, auquel est assimilé le détenteur. Les quatre amis et leur(s) famille(s), à moins qu’ils n’aient acquis la propriété de l’immeuble par prescription acquisitive, pourront réclamer le montant de leurs dépenses selon le type d’améliorations effectuées et leur bonne ou mauvaise foi. Les règles sont établies aux articles 958 à 964 C.c.Q.

Impenses nécessaires 958 C.c.Q.

Possesseur de bonne foi Le propriétaire doit rembourser au possesseur les impenses nécessaires, même si les constructions, ouvrages ou plantations n’existent plus.

Impenses utiles 959 C.c.Q.

Le propriétaire doit rembourser les impenses utiles si les constructions, ouvrages ou plantations existent encore; il peut aussi, à son choix, lui verser une indemnité égale à la plusvalue.

Impenses d’agrément Fel! Ogiltig hyperlänkreferens.

Le propriétaire peut demander au possesseur d’enlever les constructions, ouvrages et plantations en évitant d’endommager les lieux, si c’est avantageux.

Possesseur de mauvaise foi et détenteur Le propriétaire doit rembourser au possesseur les impenses nécessaires, même si les constructions, ouvrages ou plantations n’existent plus, mais il y a lieu, déduction faite des frais engagés pour les produire, à la compensation des fruits et revenus perçus. Le propriétaire peut, aux mêmes conditions, rembourser les impenses utiles faites mais il peut alors opérer la compensation pour les fruits et revenus que le possesseur lui doit. Il peut aussi contraindre le possesseur à enlever ces constructions, ouvrages ou plantations et à remettre les lieux dans leur état antérieur; si la remise en l’état est impossible, le propriétaire peut les conserver sans indemnité ou contraindre le possesseur à les enlever. Le propriétaire peut contraindre le possesseur à enlever les constructions, ouvrages ou plantations et à remettre les lieux dans leur état antérieur; si la remise en état est (continued)

274

G. Gidrol-Mistral and A. Popovici

Possesseur de bonne foi Il peut aussi lui demander de les abandonner. Le propriétaire est alors tenu de rembourser au possesseur le moindre du coût ou de la plus-value accordée à l’immeuble.

Possesseur de mauvaise foi et détenteur impossible, il peut les conserver sans indemnité ou contraindre le possesseur à les enlever.

Par ailleurs, le possesseur de bonne foi dispose d’un droit de rétention sur l’immeuble jusqu’au remboursement des impenses nécessaires ou utiles; le possesseur de mauvaise foi ne bénéficie de ce droit que pour les dépenses nécessaires (art. 963 C.c.Q.). L’énoncé des faits semble révéler la mauvaise foi des quatre amis et de leur (s) famille(s) puisqu’ils avaient connaissance de leur absence de titre (art. 932 C.c. Q.).

2.1.2.4

Protection constitutionnelle des droits économiques et sociaux

La reconnaissance d’un droit au maintien dans les lieux ou d’un droit au logement à l’encontre du propriétaire en vertu du droit commun n’est pas évidente puisque les droits économiques et sociaux ont une place encore fragile dans l’architecture des droits fondamentaux canadiens (Bosset 1996). La Charte canadienne des droits et libertés n’offre aucune protection à ces droits. Au Québec, la Charte des droits et libertés de la personne, bien que contenant une section « Droits économiques et sociaux » aux articles 39 à 48, il est possible de déroger à ces droits sans qu’aucune formalité ne soit exigée (l’article 52 de la Charte québécoise). La reconnaissance d’une protection constitutionnelle des droits économiques et sociaux en vertu de l’article 7 de la Charte canadienne n'a pas encore abouti. Cet article énonce que : « Chacun a droit à la vie, à la liberté et à la sécurité de sa personne; il ne peut être porté atteinte à ce droit qu’en conformité avec les principes de justice fondamentale ». La Cour suprême n'a pas encore vidé la question (Jackman et Porter 2013, 20 et suiv.), mais dans l’arrêt Gosselin c. Québec (Procureur général), la juge Arbour de la Cour suprême du Canada, alors minoritaire, a soutenu l’idée que la Charte canadienne contient des obligations positives, qui oblige l’État à agir, et non seulement des obligations négatives de ne pas porter atteinte aux droits et libertés des individus. Elle souligne : « [e]n tant que théorie applicable à l’ensemble de la Charte, tout argument affirmant que la Constitution ne reconnaît que des droits négatifs serait manifestement erronée. Le droit de vote (art. 3), le droit d’être jugé dans un délai raisonnable (al. 11b)), le droit d’être présumé innocent (al. 11d)), le droit de bénéficier d’un procès avec jury dans certains cas (al. 11f)), le droit à un interprète dans des procédures pénales (art. 14) et les droits à l’instruction dans la langue de la minorité (art. 23) pour ne nommer que ceux-là, imposent tous à l’État des

La propriété face aux défis des biens communs au Québec

275

obligations positives d’intervention et il convient donc de les considérer comme des droits positifs (du moins en partie). [. . .] Cette liste se veut illustrative plutôt qu’exhaustive »64.

La juge en chef McLachlin abonde dans le même sens, sans toutefois l’appliquer au cas en l’espèce : [l]a question n’est donc pas de savoir si l’on a déjà reconnu - ou si on reconnaîtra un jour que l’art. 7 crée des droits positifs. Il s’agit plutôt de savoir si les circonstances de la présente affaire justifient une application nouvelle de l’art. 7, selon laquelle il imposerait à l’État l’obligation positive de garantir un niveau de vie adéquat. J’estime que les circonstances ne justifient pas pareille conclusion65.

Récemment, la Cour d’appel de l’Ontario a rejeté une action de quatre personnes en situation d’itinérance soutenant que tant les politiques budgétaires que l’inaction des gouvernements de l’Ontario et du Canada en termes de logement avaient eu pour conséquence de créer les conditions de leur situation d’itinérance ou de difficultés à trouver un logement66. Les demandeurs alléguaient une atteinte au droit à la sécurité et la liberté (art. 7 Charte canadienne) et au droit à l’égalité (art. 15 Charte canadienne). Ces droits ont été jugés comme n’ouvrant pas d'action en justice67.

2.1.2.5

Alternatives politiques et sociales

Sous une pression sociale et politique, la compagnie pourrait être amenée à céder les immeubles à la municipalité. Toute municipalité peut en effet demander à la Société d’habitation du Québec de procéder à la mise sur pied d’un programme d’habitation afin de mettre des logements à la disposition de familles à faible revenu ou à revenu modique (art. 51 Loi sur la société d’habitation)68. Un tel programme peut prévoir l’acquisition de logements de gré à gré ou par expropriation (art. 54 LSH). La gestion du programme peut être assurée par la municipalité ou par un office municipal d’habitation. Les offices municipaux d’habitation du Québec, constituée en vertu de la Loi sur la société d’habitation du Québec ont pour mandat de développer de nouvelles unités de logement dont le loyer est abordable.

64

Gosselin c. Québec (PG), 2002 CSC 84, par. 320, la juge Arbour, opinion minoritaire. Ibid, par. 82-83, la juge McLachlin opinion majoritaire. 66 Tanudjaja v. Canada (Attorney General), 2014 ONCA 852 (demande d’autorisation d’appeler refusée Jennifer Tanudjaja, et al. c. Attorney General of Canada, et al., 2015 CanLII 36780 (C.S. C.)). 67 Ibid, par. 33, le juge Pardu, opinion majoritaire: « Finally, there is no judicially discoverable and manageable standard for assessing in general whether housing policy is adequate or whether insufficient priority has been given in general to the needs of the homeless. This is not a question that can be resolved by application of law, but rather it engages the accountability of the legislatures. Issues of broad economic policy and priorities are unsuited to judicial review. Here the court is not asked to engage in a “court-like” function but rather to embark on a course more resembling a public inquiry into the adequacy of housing policy. ». 68 Loi sur la société d’habitation du Québec, R.L.R.Q. c. S-8 [ci-après LSH]. 65

276

G. Gidrol-Mistral and A. Popovici

Enfin, les occupants pourraient demander à bénéficier d’un logement social, habitation à loyer modique ou coopérative d’habitation. Dans le cas d’une habitation à loyer modique, les locataires paient un loyer correspondant à 25% de leur revenu69. Des programmes de supplément au loyer gérés par les offices municipaux d’habitation du Québec existent. L’office paye une partie du loyer de manière à ce que les locataires aient à leur charge un loyer correspondant à 25% de leurs revenus. Par ailleurs, les bailleurs privés peuvent conclure une entente avec l’office municipal d’habitation pour que leurs locataires puissent bénéficier de ces subventions. Les coopératives d’habitation et les organismes sans but lucratif peuvent se prévaloir de ce programme.

2.2

Système de santé publique

Emanuela et certains de ses voisins ont fondé une clinique médicale sans but lucratif dans un bâtiment qui semble être vacant. Ils y offrent des soins gratuits à des migrants illégaux dépourvus d’assurance maladie. Après quelque temps, Syntech, propriétaire du bâtiment, ayant réalisé que la valeur marchande du bâtiment avait augmenté, décide de s’en départir afin de réaliser des profits. Syntech souhaite intimer Emanuela et les autres bénévoles à quitter les lieux dans les prochains jours. La société entame par conséquent une procédure d’éviction. Plusieurs membres du voisinage sont solidaires avec Emanuela, qui décide de s’opposer à la demande d’éviction. Malheureusement, bien que louable, l’opposition d’Emanuela n’a aucun fondement juridique. Syntech, en tant que propriétaire, pourra demander une injonction et expulser Emanuel et ses collègues qui exercent leur activité au sein de la clinique (art. 953 C.c.Q.; art. 509 C.p.c.). Évidemment, si Emanuela possède le bâtiment depuis plus de 10 ans (art. 2917, 2918 C.c.Q.) selon les critères de la possession utile (art 921 et suiv. C.c.Q.), elle pourra s’opposer à l’éviction puisqu’elle en aura acquis la propriété par prescription acquisitive.70. Bien que la santé puisse être comprise comme étant un droit fondamental, régi par la Charte canadienne71 et la Charte québécoise72, le fait d’offrir des soins gratuits à des migrants illégaux ne peut avoir aucun effet juridique.

69

Voir également : www.omhm.qc.ca/programmes-habitation. Ostiguy c. Allie, préc. note 65. 71 Voir le « Rapport Canada Part II » pour une analyse plus approfondie 72 Voir : Préambule. Voir également les articles 1, 45 et 46, la santé semblant incluse dans les droits économiques et sociaux. 70

La propriété face aux défis des biens communs au Québec

2.3

277

Aliments

Les familles de Marta, Mattias et Madison cultivent, avec leurs voisins, un potager communautaire sur un terrain vacant afin de subvenir à leurs besoins. Max Corporation, propriétaire du terrain, prend connaissance de leurs activités et les invite à quitter les lieux. La société entame une procédure d’éviction, souhaitant également que la nourriture cultivée soit détruite. La question de la destruction des fruits dépend de la bonne ou mauvaise foi du possesseur. En droit québécois, la bonne foi suppose que le possesseur est justifié de se croire titulaire du droit réel qu’il exerce (art. 932 C.c.Q.). Ainsi, au moment de l’entrée en possession, il doit ignorer son absence de titre ou le vice due son titre. Dès lors qu’une dénonciation judiciaire lui est signifiée, il est considéré comme étant un possesseur de mauvaise foi. Le terrain étant vacant, les familles de Marta, Mattias et Madison sont certainement possesseurs de bonne foi. Ainsi, elles pourront conserver les fruits perçus pendant la possession de bonne foi (art. 931 al. 1 C.c.Q.). Max Corporation ne peut donc demander la destruction des fruits récoltés; ceux encore sur pieds lui appartiennent dès la dénonciation et il pourra donc les détruire (art. 900 al. 2, 948, 949 et 955 C.c.Q.). Si Max Corporation arrive à démontrer la mauvaise foi des familles dès l’entrée en possession, ils seront considérés comme possesseurs de mauvaise foi (art. 931 al 2 C.c.Q.), voire détenteur (art. 921 C.c.Q.), et devront alors restituer les fruits perçus, tout en ayant droit à la compensation des frais engagés pour les cultiver et les récolter (art. 933, 955 et suiv. C.c.Q.).

2.4

Eau (Contexte rural)

Flumia, un fleuve de la région, est la source principale d’approvisionnement d’eau de Maya, Malik et Mei. Les trois riverains, aidés par les membres d’autres communautés avoisinantes, construisent un aqueduc et un canal d’irrigation pour leurs maisons et leurs champs. Après quelques années, une société privée réalise des travaux comportant la déviation du fleuve en question. Bob, Steve et Jane découvrent que l’aqueduc et le canal sont désormais à sec. Maya, Malik et Mei intentent un recours à l’encontre de la société. Si la Loi sur l’eau encadre strictement l’exploitation de la ressource hydrique73, les dispositions du Code civil du Québec qui la complètent suffisent à régler la question de nos trois riverains.

73 Voir également : Loi affirmant le caractère collectif des ressources en eau et favorisant une meilleure gouvernance de l’eau et des milieux associés, préc. note 4, art. 6, 7, 8, 9 et 11.

278

G. Gidrol-Mistral and A. Popovici

Article 980 Le propriétaire qui a une source dans son fonds peut en user et en disposer. Il peut, pour ses besoins, user de l’eau des lacs et étangs qui sont entièrement sur son fonds, mais en ayant soin d’en conserver la qualité. Article 981 Le propriétaire riverain peut, pour ses besoins, se servir d’un lac, de la source tête d’un cours d’eau ou de tout autre cours d’eau qui borde ou traverse son fonds. À la sortie du fonds, il doit rendre ces eaux à leur cours ordinaire, sans modification importante de la qualité et de la quantité de l’eau. Il ne peut, par son usage, empêcher l’exercice des mêmes droits par les autres personnes qui utilisent ces eaux. Article 982 À moins que cela ne soit contraire à l’intérêt général, celui qui a droit à l’usage d’une source, d’un lac, d’une nappe d’eau ou d’une rivière souterraine, ou d’une eau courante, peut, de façon à éviter la pollution ou l’épuisement de l’eau, exiger la destruction ou la modification de tout ouvrage qui pollue ou épuise l’eau.

Article 980 An owner who has a spring on his land may use it and dispose of it. He may, for his needs, use water from the lakes and ponds that are entirely on his land, taking care to preserve their quality. Article 981 A riparian owner may, for his needs, make use of a lake, the headwaters of a watercourse or any other watercourse bordering or crossing his land. As the water leaves his land, he shall direct it, not substantially changed in quality or quantity, into its regular course. No riparian owner may by his use of the water prevent other riparian owners from exercising the same right. Article 982 Unless it is contrary to the general interest, a person having a right to use a spring, lake, sheet of water, underground stream or any running water may, to prevent the water from being polluted or depleted, require the destruction or modification of any works by which the water is being polluted or depleted.

Au Québec, l’eau étant une res communes (art. 913 C.c.Q.) toute personne peut utiliser la ressource. Cependant, les usagers doivent préserver tant la quantité que la qualité de cette ressource. Ainsi, nos trois riverains disposent d’un recours contre la société qui, en raison de la déviation, n’a pas conservé la quantité de l’eau mettant à sec tant le canal que l’aqueduc. Certains auteurs suggèrent même la possibilité d’utiliser l’article 982 C.c.Q. à titre préventif (Lemieux 1992).

2.5

Eau (Contexte urbain)

Jose, Jasmine et Horatio sont colocataires d’un appartement situé dans la ville de Flumiapolis. Suite à une augmentation importante du prix de l’eau (200 pour cent sur l’année courante), les trois amis sont dans l’impossibilité de joindre les deux bouts. Après trois factures impayées, la société de gestion coupe leur accès à l’eau. Jose, Jasmine et Horatio saisissent les tribunaux. Au Québec, la distribution de l’eau courante n’est pas facturée aux occupants des logements. Ce sont en effet les taxes municipales qui financent le service public d’approvisionnement de l’eau. Les propriétaires immobiliers sont responsables du paiement de ces taxes. Ainsi, à titre de locataires nos trois amis n’ont pas de factures d’eau à payer. Cependant, le propriétaire peut prévoir dans le bail que la taxe d’eau

La propriété face aux défis des biens communs au Québec

279

sera spécifiquement payée par les locataires de l’immeuble, bien qu’il demeure le seul débiteur de la municipalité. Lorsqu’un propriétaire fait défaut de payer les taxes municipales, il n’est pour autant pas possible pour une municipalité de couper l’approvisionnement en eau lorsque l’immeuble est occupé à des fins d’habitation. Une coupure n’est envisageable que dans des cas prévus par la loi, telle l’exploitation d’une entreprise74. Au Québec, nos trois amis n’auront pas à s’inquiéter, du moins pour l’approvisionnement en eau.

2.6

Nature

Hamid et Heba, accompagnés de leurs deux enfants, ont l’habitude de passer plusieurs fins de semaine à se promener et à jouer dans l’une des rares zones de verdure dans la banlieue de leur ville. Le terrain en question appartient à un citoyen qui habite une maison au bord du lac. Ce terrain est par la suite vendu à la Société C, qui décide de le transformer en country club et en limitant l’accès à ses membres. Hamid et Heba, appuyés par des groupes écologistes, saisissent les tribunaux. Le droit commun n’offre aucun recours aux demandeurs. En effet, selon l’article 947 C.c.Q., la propriété est le « droit d’user, de jouir et de disposer librement et complètement d’un bien, sous réserve des limites et des conditions d’exercice fixées par la loi ». Au Québec le droit de propriété est marqué par l’exclusivisme qui se manifeste par l'exclusion des tiers. Ainsi aucune loi n’empêche la Société C de créer un club privé dont l’accès est limité à certaines personnes. Cependant, la question de l’existence d’une servitude pourrait être soulevée. Hamid et Heba pourraient-ils alléguer, en raison la tolérance passée, de l’existence d’une servitude personnelle ou réelle? Au Québec, il ne peut y avoir de servitude sans titre (art. 1181 C.c.Q.), un tribunal ne peut donc établir de « servitude judiciaire » (Normand 2020, 281). Par ailleurs, la servitude ne peut s'acquérir par prescription acquisitive. Quoi qu’il en soit, [l]es actes de pure faculté ou de simple tolérance ne peuvent fonder la possession » (art. 924 C.c.Q). Hamid et Heba ne peuvent donc prétendre à une servitude sur le terrain. Par ailleurs, bien que certains ont vu dans la Loi sur la qualité de l’environnement75 un droit à un environnement de qualité, qui interprété largement pourrait inclure le droit d’accès à des espaces verts, les tribunaux ont évité de lui

74

Voir : Loi sur les compétences municipales, R.L.R.Q. c. C-47.1, art 27. R.L.R.Q. c. Q-2 [ci-après LQE]; « Toute personne a droit à la qualité de l’environnement, à sa protection et à la sauvegarde des espèces vivantes qui y habitent, dans la mesure prévue par la présente loi, les règlements, les ordonnances, les approbations et les autorisations délivrées en vertu de l’un ou l’autre des articles de la présente loi » (art. 19.1 LQE). 75

280

G. Gidrol-Mistral and A. Popovici

conférer une portée autonome (Thériault et Tremblay-Potvin 2012, par. 4)76. Par conséquent, sauf dans le cas où la Société C commettait une infraction à une autre disposition de la LQE, les demandeurs ne peuvent contester le refus d’accès à ce terrain privé. Seules des solutions politiques semblent s'offrir aux demandeurs. Ces solutions, bien que très incertaines et complexes, permettraient d’amener les autorités québécoises ou locales à protéger l’accès des citoyens à l’espace vert visé. Hamid et Heba, fort du soutien de groupes écologistes et de leur communauté, pourraient faire pression soit contre un groupement de municipalités, soit contre leur municipalité, afin de les amener à modifier la planification et l’aménagement du territoire. Il faut comprendre que le territoire du Québec est divisé en municipalités régionales de comté (MRC). Une MRC « regroupe toutes les municipalités d'un même territoire d'appartenance formant une entité administrative qui est une municipalité au sens que l'entend la Loi sur l'organisation territoriale municipale. Elle est constituée par lettres patentes délivrées par le gouvernement » (Ministère des Affaires municipales et Occupation du territoire 2010). Les MRC et les municipalités sont soumises à la Loi sur l’aménagement et l’urbanisme. Chaque MRC doit maintenir un schéma d’aménagement et de développement (art. 3 LAU). Ce schéma contient les grandes orientations de l’aménagement et détermine les affectations du territoire (art. 5 al. 1(2.1) LAU), tels les usages urbains, agricoles, de loisirs ou de villégiature (Rousseau 2013, par. 7). De plus, « le schéma doit identifier toute partie du territoire présentant un intérêt d'ordre historique, culturel, esthétique ou écologique (art. 5 al. 1(6) LAU) » (Rousseau 2013, par. 7). Considérant l’absence de terrains verts dans la banlieue de Hamid et Heba, ceuxci pourraient demander à la MRC d’identifier l’intérêt écologique particulier du terrain pour l’ensemble des citoyens. La modification au schéma d’aménagement et de développement de la MRC doit nécessairement être appuyé par un règlement d’urbanisme adopté par la MCR concernée. La procédure de modification d’un plan d’urbanisme est prévue aux articles 10.9.1 et suivants. LAU. Elle implique notamment la tenue d’une assemblée publique sur le projet de règlement de modification du plan d’urbanisme (art. 109.2 LAU). Le projet de règlement doit être approuvé par la Municipalité régionale de comté (art. 109.7 LAU). Il serait donc plus simple pour Hamid et Heba de s’adresser directement à leur propre municipalité pour demander aux élus de modifier le plan d’urbanisme de la ville. Le plan d’urbanisme doit être conforme au schéma d’aménagement et de développement de la MRC. L’article 83 LAU prévoit qu’un plan d’urbanisme doit

76

Voir également : Thériault et Tremblay Potvin (2012, par. 4) « Celui qui, prétendant que son droit à un environnement de qualité a été violé, requiert un remède en injonction en vertu de l'article 19.2 LQE., devra donc démontrer que l'auteur de cette violation a transgressé une autre disposition de la Loi sur la qualité de l'environnement, l'un de ses règlements d'application, une ordonnance, une autorisation, une attestation d'assainissement ou un plan de réhabilitation délivrés sous son autorité, ou encore un règlement adopté en vertu de l'article 113 de la Loi sur l'aménagement et l'urbanisme afin de contrôler les odeurs d'origine agricole ».

La propriété face aux défis des biens communs au Québec

281

comprendre : 1° les grandes orientations d’aménagement du territoire de la municipalité; 2° les grandes affectations du sol et les densités de son occupation; 3° le tracé projeté et le type des principales voies de circulation et des réseaux de transport. Selon l’article 85 LAU, le plan d’urbanisme peut également comprendre un programme particulier d’urbanisme pour une partie du territoire, aux fins duquel la municipalité peut exproprier un immeuble (art. 85.0.1 LAU). Enfin, de manière plus radicale, si le terrain en question présente des qualités environnementales exceptionnelles, Hamid et Heba pourraient demander au gouvernement du Québec de créer une aire protégée en vertu de la Loi sur la conservation du patrimoine naturel, qui octroie le pouvoir d’expropriation au ministre du Développement durable, de l’Environnement et des Parcs 77.

2.7

Territoire

Yellowriver, village situé profondément dans la forêt. Le gouvernement donne à une entreprise minière la permission de faire des recherches pour développer une mine d’or. Les habitants veulent bloquer le projet pour protéger l’eau du fleuve menacé par l’activité extractive. Y-a-t-il des moyens légaux pour protéger le fleuve ? La décision d’accorder des droits en matière d’extraction minière relève de l’État, propriétaire des substances minérales situés sur le territoire québécois (art. 3 Loi sur les mines Chapitre M-13.1). C’est donc l’État qui opère la balance entre les intérêts économiques et la préservation de l’environnement. Pour autant, le préambule de la Loi sur les mines précise que les ressources minérales du territoire québécois « constituent un bien collectif pour les générations futures”. Cette notion de « bien collectif” est plus politique que juridique puisque le préambule précise que « le secteur minier a contribué à bâtir l'identité québécoise [. . .] source de fierté”. Ainsi, contrairement à la Loi sur l’eau, la notion de bien collectif minier ne confère pas un usage collectif de ces biens qui demeurent propriété exclusive de l’État, peu importe qu’ils soient sur un domaine foncier public ou privé. Cette notion de “bien collectif” n’impose donc aucune obligation positive à l’État, bien que le préambule de la Loi sur les mines incite à respecter certains principes tels « le développement minéral respectueux de l'environnement”, « de favoriser un développement associé aux communautés et intégré au milieu” et « de diversifier de façon durable l’économie des régions”. Il est intéressant de relever que les enjeux de gouvernance entraînent des « principes de transparence, respect, souplesse, coopération et innovation » (Ministère de l’Énergie et des Ressources naturelles 2019), qui s’accompagnent, quant à eux, d’une obligation positive de consultation des communautés, et plus particulièrement des communautés autochtones78.

77 78

Loi sur la conservation du patrimoine naturel, R.L.R.Q. c. C-61.01, art. 8. Loi sur les mines, préc. note 33, art. 2.1 à 2.3.

282

G. Gidrol-Mistral and A. Popovici

La loi précise qu’il faut être titulaire d’un permis de prospection pour réaliser des travaux d’exploration de substances minérales79, permis pour lequel il suffit de remplir les conditions80 fixées par règlement. D’autres types d’autorisations sont requis, notamment lorsque des espèces menacées peuvent être touchées, offrant des recours supplémentaires. La Loi sur les mines prévoit notamment des autorisations particulières lorsque la prospection vise un terrain situé sur une réserve indienne ou est désigné comme refuge d’oiseaux migrateur81. Aussi, il faut un permis pour procéder à d’importants prélèvements d’eau (LQE, art. 31.75), mais les travaux d’exploration de substances minérales en sont exemptés82. Une fois l’autorisation accordée, la Loi sur les mines accorde de larges pouvoirs à l’industrie minière. Notamment, elle prévoit à son article 26 une interdiction spécifique d’obstruer l’accès à un terrain à celui qui a droit d’y faire de la prospection. Ainsi, le titulaire d’une autorisation de prospection ou d’un droit minier jouit d’une large marge de manœuvre et n’est pas soumis à la plupart des législations environnementales. Dans la mesure où les recherches sont autorisées conformément au cadre législatif, les habitants disposent de peu de moyens pour contester la décision ministérielle qui est par nature discrétionnaire. Seul le recours de droit commun en contrôle judiciaire permet de contester la légalité de la décision ministérielle lorsque l’autorisation viole une loi ou est déraisonnable 83. Pour contester l’autorisation, il faut démontrer que la décision du ministre est illégale ou déraisonnable84. Plusieurs recours visant la protection des espèces menacés ont ainsi permis de bloquer des projets. Dans Centre québécois du droit de l’environnement c. Oléoduc Énergie Est ltée85, les requérants ont utilisé la protection du Béluga et démontré que le ministre n’avait pas tenu compte de toute l’information disponible et que sa décision n’était pas raisonnable. Il est également possible pour les habitants de demander une injonction interlocutoire lorsqu’un risque de préjudice sérieux et irréparable peut être démontré prima facie. Cette injonction permet de bloquer le projet de manière temporaire, le temps que leur demande judiciaire soit entendue sur le fond. Dans ce cas, il faut démontrer l’urgence de la situation ; le risque d’un préjudice irréparable ; une

79

Ibid, art. 19. Ibid, art. 23. 81 Loi sur la convention concernant les oiseaux migrateurs, L.R.C. (1985), c. M-7 ; Loi sur les mines, préc. note 33, art.33. 82 Règlement sur le prélèvement des eaux et leur protection, R.L.R.Q. c. Q-2 r. 35.2, art. 6 (1). 83 Gestion Serge Lafrenière inc. c. Calvé J.E. 99-1019, [1999] R.J.Q. 1313, (C.A.), pp. 18-19. 84 Québec (Ministre du Développement durable, de l’Environnement et des Parcs) c. 9007-5193 Québec inc., 2007 QCCA 667. 85 Centre québécois du droit de l’environnement c. Oléoduc Énergie Est ltée, 2014 QCCS 4147. 80

La propriété face aux défis des biens communs au Québec

283

apparence de droit à protéger et que la balance des inconvénients permet d’ordonner la cessation du projet86. La Loi sur la qualité de l’environnement semble ouvrir une voie de recours originale. L’article 19.1 LQE prévoit en effet que : « Toute personne a droit à la qualité de l’environnement, à sa protection et à la sauvegarde des espèces vivantes qui y habitent, dans la mesure prévue par la présente loi (. . .) ». Ainsi, toute personne affectée domiciliée au Québec pourrait demander au tribunal une injonction pour faire cesser tout acte susceptible de porter atteinte à ce droit (LQE, art. 19.2 et 19.3)87. Ce recours n’est toutefois pas offert aux personnes qui « ne fréquentent pas les lieux »88, même si toute personne ou groupe intéressés peut se joindre au recours à titre d’intervenant (LQE, art.100). Par contre, il faut souligner que dans les faits, la Loi sur la qualité de l’environnement serait difficile à appliquer si les travaux de prospection ont été dument autorisés en vertu de la Loi sur les mines. En effet, l’autorisation peut être interprétée comme un droit de porter atteinte à l’environnement dans les conditions déterminées par le ministre (Nadon 2012). Ainsi, l’autorisation des travaux (art. 22 LQE) rend inefficace l’interdiction générales de polluer édictée par l’article 20 LQE. Enfin, un recours pourrait être fondé sur le droit civil, le Code civil en tant que jus commune (disposition préliminaire, C.c.Q.) ayant un rôle supplétif. Dans le cas où il existe un préjudice, le régime général de la responsabilité civile (art. 1457 C.c.Q.) pourrait s’appliquer, bien que ses conditions restent difficiles à démontrer (faute, préjudice et lien de causalité). Le régime du droit des biens offre deux possibilités de recours aux habitants par le truchement des articles 982 et 976 C.c.Q. L’article 982 dispose que : Article 982 À moins que cela ne soit contraire à l’intérêt général, celui qui a droit à l’usage d’une source, d’un lac, d’une nappe d’eau ou d’une rivière souterraine, ou d’une eau courante, peut, de façon à éviter la pollution ou l’épuisement de l’eau, exiger la destruction ou la modification de tout ouvrage qui pollue ou épuise l’eau.

Article 982 Unless it is contrary to the general interest, a person having a right to use a spring, lake, sheet of water, underground stream or any running water may, to prevent the water from being polluted or depleted, require the destruction or modification of any works by which the water is being polluted or depleted.

Cet article, qui permettrait un recours préventif des usagers de cette ressource collective, nécessite cependant de faire la démonstration que ce recours n’est pas

86 Voir p. ex. Coalition verte c. Technoparc Montréal, 2016 QCCS 4745, par. 27; Municipalité de Saint-Adolphe-d’Howard c. Procureure Générale du Québec (Ministre du Développement durable, de l’Envrionnement et de la lutte contre les changements climatiques), 2018 QCCS 78, par. 17 ; Centre québécois du droit de l’environnement c. Transcanada Pipelines ltée, 2016 QCCS 903, par. 26. 87 Voir p. ex. Entreprises B.C.P. Ltée c. Bourassa J.E. 84-279 (C.A.); Sévigny c. Alimentation G.F. Robin inc., 1999 CanLII 11688 (C.S.); Loi sur la qualité de l’environnement, préc. note 77. 88 Langevin c. Bouchard, 2010 QCCA 1635, par. 3.

284

G. Gidrol-Mistral and A. Popovici

contraire à « l’intérêt général »89. Or, dans la mesure où le ministre est présumé octroyer les autorisations de prospection en tenant compte de l’intérêt général, il semble illusoire de tenter de l’invoquer. Le recours qui pourrait avoir le plus de chance d’aboutir serait celui fondé sur l’article 976 C.c.Q. Article 976 Les voisins doivent accepter les inconvénients normaux du voisinage qui n’excèdent pas les limites de la tolérance qu’ils se doivent, suivant la nature ou la situation de leurs fonds, ou suivant les usages locaux.

Article 976 Neighbours shall suffer the normal neighbourhood annoyances that are not beyond the limit of tolerance they owe each other, according to the nature or location of their land or local usage.

La Cour suprême du Canada a consacré l’idée d’une responsabilité sans faute générale pour trouble de voisinage prenant appui sur l’article 976 C.c.Q. Une fois le trouble anormal de voisinage démontré, l’existence d’un permis et le respect de ses modalités importe peu puisque la responsabilité ne repose pas sur le comportement illicite mais sur l’existence objective du trouble anormal (Popovici A 1997; Arbour et Racine 2009; Bélanger 2009; Charpentier et Moore 2009; Lafond 2009; Emerich 2011; Landry et Ouellet 2013). L'auteur du trouble doit donc mettre un terme aux nuisances et réparer le préjudice90.

2.8

Culture

Le financement public d’un théâtre communautaire est coupé suite à la mise en œuvre de certaines politiques d’austérité. Le théâtre sera donc vendu à une société privée souhaitant l’exploiter pour générer des profits. Evgenia, Misha et Katia travaillent comme acteurs auprès du théâtre. Ils s’opposent à la vente et, appuyés par d’autres employés, décident d’occuper le théâtre et de continuer les activités destinées au public grâce à l’implication de bénévoles et à des donations privées. La mairie saisit les tribunaux afin de demander l’éviction des occupants. La ville, en tant que propriétaire du théâtre, peut vendre cet immeuble qui relève du domaine privé de la municipalité et exercer, comme tout propriétaire privé, une action en revendication pour s’opposer à tout usage qu’il n’a pas autorisé et obliger les occupants à quitter les lieux (art. 953 C.c.Q.) par le biais d’une injonction. La troupe de théâtre, qui occupe sans titre ni droit l’immeuble, est considérée comme détentrice du bien. Elle ne peut donc prescrire l’immeuble puisque la détention ne peut jamais fonder la prescription acquisitive, même lorsqu’elle se

89 Association des résidents du Lac Mercier inc. c. Paradis, ès qualité de ministre de l’Environnement, 1996 CanLII4648 (C.S.), par. 69. 90 Ciment du Saint-Laurent inc c. Barrette, 2008 CSC 64.

La propriété face aux défis des biens communs au Québec

285

poursuit au-delà du terme convenu si elle était fondée sur un contrat (art. 2913 C.c. Q.). Le seul moyen dont dispose la troupe est un moyen politique. Elle pourrait tenter de faire pression publiquement pour infléchir la décision de la ville et contrer les compressions budgétaires (interpellation des élus, pétition, opinion publique, etc.). C’est souvent la voie utilisée par les groupes communautaires dans une telle situation 91.

2.9

Climat

Diletta, Flavio et Antonella deviennent conscients de la réalité du changement climatique lorsque leur enseignant décide de travailler sur des documents qui ont circulé à l'époque de l'Accord sur le changement climatique de Paris en 2015. Bien que très jeunes, les trois amis, qui viennent d'avoir 18 ans, reçoivent très sérieusement ces informations et commencent à être très concernés par les lugubres attentes : la croissance de la température globale, la pénurie d'eau, la sécheresse, les incendies, les possibles déplacements de populations, etc. Après le scandale concernant la Popcar corporation, qui porte sur la manipulation du système informatique veillant aux émissions de gaz des voitures, les trois jeunes étudiants sont frappés par la très faible sanction infligée par leur système juridique, aux producteurs des voitures. Pour cette raison, Diletta, Flavio et Antonella décident de porter plainte au nom de générations futures. Ils intentent un procès contre leur gouvernement et la société globale Popcar. La pollution climatique oblige à repenser les liens entre intérêt privé, intérêt général et intérêt public.

2.9.1

Intérêt privé et intérêt général

Nos trois amis souhaitent intenter un recours contre Popcar au nom de l’intérêt général (générations futures). Est-il possible que des personnes privées agissent au nom de cet intérêt général et le contexte environnemental ouvre-t-il des perspectives? Recours en droit commun : Toute action privée en justice suppose un intérêt suffisant pour agir (art. 85 C.p.c.). L’intérêt est suffisant lorsqu’il est direct, personnel, né et actuel (Renno 2015 par. 16)92. Ainsi un justiciable qui souhaiterait agir 91

Voir également : Radio-Canada, « Menacés d'expulsion, des groupes communautaires interpellent la CSDM », Radio-Canada, 23 novembre 2016, en ligne : https://ici.radio-canada.ca/ nouvelle/1001850/menace-expulsion-groupes-communautaires-csdm-demenagement-loyer; Jeanne Corriveau, « Les Forges de Montréal sauvés », Le Devoir, 28 février 2017, en ligne : https:// www.ledevoir.com/politique/montreal/492802/les-forges-de-montreal-sauvees. 92 Voir également : Noël c. Société d'énergie de la Baie James, [2001] 2 R.C.S. 207.

286

G. Gidrol-Mistral and A. Popovici

pour une autre personne (Gaillard 2011), pour la société québécoise93 ou pour une collectivité94, ne possède pas l’intérêt pour agir et ne peut donc intenter une action en justice. Pour certains auteurs, le contexte environnemental permet d’élargir la notion d’intérêt pour agir (Bélanger et Halley 2017, par. 18). Ainsi les articles 19.1 de la Loi sur la qualité de l’environnement, qui reconnaît un droit à la qualité de l’environnement, et 46.1 de la Charte québécoise des droits et libertés de la personne, qui prévoit que « toute personne a droit [. . .] de vivre dans un environnement sain et respectueux », pourraient permettre à tout citoyen québécois d’arguer d’un intérêt suffisant pour agir (Bélanger et Halley 2017, par. 18). Cependant, la reconnaissance d’un intérêt pour agir est insuffisante puisqu’en droit privé, le recours contre Popcar serait fondé sur la responsabilité civile de droit commun (art. 1457 C.c.Q.) ou pour trouble de voisinage (art. 976 C.c.Q.). Dans les deux cas, la réparation suppose l’existence d’un préjudice personnel, critère essentiel de la responsabilité civile québécoise. Or, l’atteinte environnementale, en l’absence de reconnaissance d’un préjudice écologique, rend difficile l’établissement d’un tel préjudice personnel (Desjardins et Mayrand, 2017, par. 24–25; Pham 2018) découlant de l’émission des gaz à effet de serre des voitures de Popcar, le préjudice s’apparentant à un préjudice collectif. Dès lors, la voie du recours collectif, spécificité du droit québécois, semble la plus appropriée (Lafond 2009, 409–410). La Cour d’appel reconnaît d’ailleurs qu’en matière environnementale, l’action collective est à privilégier : « La protection de l'environnement est une responsabilité confiée à tous les citoyens, alors que le pouvoir public est appelé à jouer un rôle sans cesse grandissant dans ce secteur d'activité. La pollution par le bruit n'échappe pas à cette responsabilité. Le recours collectif permet plus facilement d'assurer la mise en œuvre des protections conférées par les lois contre les différentes nuisances environnementales. Il assure du même coup, grâce à la force du regroupement, un juste équilibre entre les personnes aux prises avec les conséquences de la violation alléguée et un contrevenant qui souvent jouit de ressources plus imposantes. Ainsi, les conduites en ce domaine jugées téméraires, déraisonnables ou illégales deviennent plus facilement à la portée de la sanction civile95 »

Cette action collective semble d'ailleurs avoir atteint un nouveau stade de développement puisque récemment un jugement a autorisé un recours collectif contre Volkswagen Canada dans le cas du Dieselgate au Québec96.

93

Voir également : Morin c. Deschênes, 2011 QCCS 4247. Voir également : Zhang c. Chau, 2008 QCCA 1022; 176841 Canada Inc. c. Bomba, [2002] J.Q. no 325 (C.A.); Trudeau c. Pierres St-Hubert Inc., [2001] J.Q. no 944 (C.A.). 95 Carrier c. Québec (Procureur général), 2011 QCCA 1231, par. 80. Voir également Comité d’environnement de la Baie inc. c. Société d’électrolyse et de chimie Alcan ltée, [1990] R.J.Q. 655 (C.A.). 96 Association québécoise de lutte contre la pollution atmosphérique c. Volkswagen Group Canada Inc., 2018 QCCS 174. Ce jugement d’autorisation a été confirmé à la Cour d’appel (2018 QCCA 1034) et à la Cour suprême (2019 CSC 53) mais n’a pas encore été entendu au fond. 94

La propriété face aux défis des biens communs au Québec

287

Ce jugement, bien que préliminaire, permettrait à nos trois amis d’envisager une action collective au nom des générations futures puisque le recours a été autorisé au nom de tous les citoyens québécois, peu importe leur qualité de propriétaire d’une voiture Volkswagen. Par ailleurs les demandeurs s’appuyaient sur la LQE et sur l’article 49 de la Charte québécoise qui permet d’obtenir des dommages punitifs, compensant l’inefficacité des dommages compensatoires et sanctionnant le caractère délibérément trompeur des agissements de Volkswagen. Recours statutaires : La Loi sur la qualité de l’environnement a élargi la notion de qualité pour agir puisqu’elle prévoit que « toute personne physique domiciliée au Québec qui fréquente un lieu à l’égard duquel une contravention à la présente loi ou aux règlements est alléguée ou le voisinage immédiat de ce lieu » peut faire une demande en injonction (art. 19.3, LQE). Nul besoin d’être voisin, propriétaire ou de subir un trouble de voisinage pour bénéficier de ce recours. C’est ainsi que les tribunaux ont reconnu l’intérêt pour agir d’un cycliste qui passait en abord d’une entreprise de recyclage de métaux régulièrement 97. Les critères pour obtenir une injonction se trouvent donc assouplis (Thériault et Tremblay-Potvin 2017, par. 7). En effet, invoquant le caractère d’ordre public de la Loi sur la qualité de l’environnement, les tribunaux ont établi qu’il incombe au requérant d’établir « un droit clair découlant de la violation d'une norme règlementaire ou législative objective »98 plutôt que l’existence d’un préjudice sérieux ou irréparable99. Il suffit de démontrer la violation objective de la loi100, tel le non-respect du seuil maximal d’émission d’un contaminant101, pour obtenir une injonction provisoire. Ici nos trois amis pourraient arguer d’un intérêt pour agir et obtenir une injonction provisoire interdisant à Popcar la vente de ce type de véhicules ou, mieux encore, d‘imposer que ses véhicules respectent désormais la règlementation en vigueur sur l’émission des gaz polluants. Le droit civil permet donc de défendre un intérêt privé mais également un intérêt général et un intérêt collectif qui se semble se métamorphoser en intérêt général représentant un collectif diffus.

2.9.2

Intérêt privé et intérêt public

L’intérêt public pourrait-il permettre à un groupe ou à une personne privée d'agir en justice?

97

AQLPA c. Compagnie américaine de fer et métaux, 2006 QCCS 3949. Calvé c. Gestion Serge Lafrenière inc., [1999] J.Q. no 1334, par. 87 (C.A.). Le critère fut d’abord développé dans l’affaire Québec (Procureur général) c. Société du parc industriel de l'est du Québec, [1979] C.A. 359, par. 12 et 23. 99 Ces critères sont ceux prévus par l’art. 511 C.p.c. 100 Gagné c. Boulianne, [1991] J.Q. no 439, par. 31 (C.A.). 101 Ibid. 98

288

G. Gidrol-Mistral and A. Popovici

En droit public, l’intérêt suffisant s’évalue de manière souple. D’ailleurs, le Code de procédure civile prévoit à l’article 85 al. 2 que « l’intérêt du demandeur qui entend soulever une question d’intérêt public s’apprécie en tenant compte de son intérêt véritable, de l’existence d’une question sérieuse qui puisse être valablement résolue par le tribunal et de l’absence d’un autre moyen efficace de saisir celui-ci de la question ». Il conviendra ainsi de démontrer qu’aucune personne ayant un intérêt personnel, né et actuel ne s’est manifestée ou ne se manifestera dans le futur pour pouvoir exciper de cet intérêt public (Renno 2015 par. 21). Nos trois amis pourraient agir contre l’État notamment par le truchement d’une action en mandamus. Cependant, l’admission de l’intérêt à agir relève du pouvoir discrétionnaire des tribunaux. Il est intéressant de relever que l’intérêt public est aisément reconnu aux groupes ayant une mission de protection de l’environnement 102 puisque « ce n’est pas le procureur général qui va se poursuivre lui-même »103. Ici le meilleur recours possible est celui prévu par la Loi canadienne sur la protection de l’environnement104 qui a créé une action en protection de l’environnement. Cette action hybride, à mi-chemin entre action publique et action privée, permettrait à nos trois amis d’agir contre Popcar. Cette action civile nait de l’échec de l’action gouvernementale. Ainsi, selon l’article 17 de la LCPE, tout particulier âgé de 18 ans et plus peut demander au Ministre l’ouverture d’une enquête relative à une infraction à la présente loi. Nos trois amis pourraient donc demander au Ministre d’ouvrir une enquête. Dans le cas où le Ministre ne respecterait pas l’article 17 LCPE, soit qu’il n’ait pas ouvert d’enquête, soit qu’il n’ait pris aucune mesure raisonnable, l’article 22 al. 3 LCPE leur permettrait alors d'agir directement contre la personne visée par l’enquête, soit Popcar, se substituant en quelque sorte à l'État défaillant. Cette action civile, bien que n’étant pas une action personnelle, permet d’obtenir dans l’intérêt public : (a) un jugement déclaratoire; (b) une ordonnance — y compris une ordonnance provisoire — enjoignant au défendeur de ne pas faire un acte qui, selon le tribunal, pourrait constituer une infraction prévue à la présente loi; (c) une ordonnance — y compris une ordonnance provisoire — enjoignant au défendeur de faire un acte qui, selon le tribunal, pourrait empêcher la continuation de l’infraction; (d) une ordonnance enjoignant aux parties de négocier un plan de mesures correctives visant à remédier à l’atteinte à l’environnement, à la vie humaine, animale

102 Comité des citoyens de la presqu’île-Lanaudière c. Québec (Procureur Général), 2005 CanLII 28503 (C.S.); Centre québécois du droit de l’environnement c. Oléoduc Énergie Est ltée, 2014 QCCS 4398. 103 Conseil régional de l’environnement de Montréal c. Québec (Procureur Général), 2008 QCCS 1041, par. 35. 104 L.C. 1999, c. 33 [ci-après LCPE].

La propriété face aux défis des biens communs au Québec

289

ou végétale ou à la santé, ou à atténuer l’atteinte, et de faire rapport au tribunal sur l’état des négociations dans le délai fixé par celui-ci; (e) toute autre mesure de redressement indiquée — notamment le paiement des frais de justice — autre que l’attribution de dommages-intérêts. Cette action en protection de l’environnement réunit intérêt privé et intérêt public, permettant aux particuliers d'agir dans l’intérêt public.

Références Arbour M-È, Racine V (2009) Itinéraires du trouble de voisinage dans l’espace normatif. C de D 50: 327–359 Beaudoin G-A (2004) La constitution du Canada : institutions, partage des pouvoirs, droits et libertés. In: Bleue – série Traités. Wilson & Lafleur, Montréal, pp 797–798 Bélanger M (2009) In : Service de la formation continue du Barreau du Québec - Développements récents en recours collectifs : L’après Ciment St-Laurent pour les recours collectifs en environnement. Éditions Yvon Blais, Cowansville Bélanger M, Halley P (2017) Accès à la justice pour protéger l’environnement au Québec : réflexions sur la capacité à agir des particuliers et des groupes environnementaux. Revue de droit de McGill 62(3):603–632 Borgeat L, Dussault R (1986) Traité de droit administratif. PUL, Québec Bosset P (1996) Les droits économiques et sociaux, parents pauvres de la Charte québécoise? Commission des droits de la personnes et des droits de la jeunesse, Montréal Bouchard C (1997) La personne morale démythifiée : contribution à la définition de la nature juridique des société de personnes québécoises. PUL, Sainte-Foy Boyd DR (2011) No Taps, No Toilets: First Nations and the Constitutional Right to Water in Canada. Revue de droit de McGill 57(1):81–134 Bras-Miranda G (2003a) La propriété collective. Est-ce grave docteur? – Réflexions à partir d’une relecture de l’arrêt Allard. Revue du Barreau 63:29–57 Bras-Miranda G (2003b) La propriété collective au Québec : les enjeux. Revue du Barreau 63:231– 254 Brun H, Tremblay G, Brouillet E (2014) Droit constitutionnel. Édition Yvon Blais, Cowansville Brun H, Brun P, Lafontaine F (2016) Chartes des droits de la personne : législation, jurisprudence et doctrine. Wilson & Lafleur, Montréal. Available via CAIJ : . Accessed 28 Nov 2020 Cantin Cumyn M (2007) Le pouvoir juridique. Revue de droit de McGill 52:215–236 Cantin Cumyn M (2011) L’eau, une ressource collective : portée de cette désignation dans la Loi affirmant le caractère collectif des ressources en eau et visant à renforcer leur protection. C de D 51(3-4):595–615 Cantin Cumyn M, Cumyn M (2006). In: Normand S (ed) Mélanges offerts au professeur François Frenette : Études portant sur le droit patrimonial. PUL, Quebec p 127-150 Charpentier É, Moore B (2009) Responsabilité civile et rapports de voisinage : Responsable ou obligé? Commentaire de l’arrêt Ciment du St-Laurent c. Barrette. Revue juridique Thémis 43: 467–484 Choquette C (2008) Analyse de la validité des règlements municipaux sur les bandes riveraines. Revue de droit de l’Université de Sherbrooke 39:261–328 Choquette C, Gilles D (2018). In : Jurisclasseur Québec – Droit de l’environnement : Loi affirmant le caractère collectif des ressources en eau et favorisant la gouvernance de l’eau et des milieux associés. Lexis Nexis, Montréal

290

G. Gidrol-Mistral and A. Popovici

Clément-Fontaine M (2012) Un renouveau des biens communs : des biens matériels aux biens immatériels. In: Hommage au professeur Henri-Jacques Lucas : Les modèles propriétaires. LGDJ, Paris Commission sur la gestion de l’eau au Québec (2000) L’eau, ressource à protéger, à partager et à mettre en valeur. Bureau d’audiences publiques sur l’environnement, Québec, p 121 Day S, Brodsky G (2007) Women and the Canada Social Transfer: Securing the Social Union. Status of Women Canada, Ottawa, p 75 Debruche A-F (2006) La protection de la propriété par la Charte des droits et libertés de la personne : diable dans la bouteille ou simple peau de chagrin. Revue du Barreau 66(5):175–216 Desjardins M-C, Mayrand H (2017) In: Beaulac S, Gaudreault-Desbiens J-F (eds) Jurisclasseur Québec – Droit de l’environnement: Recours des citoyens en vertu du droit commun. Montréal, Lexis Nexis Devinat M (2020) Revue de la jurisprudence 1994-2019 en droit des biens. Revue du notariat 122(1):35–74 Emanuelli C (2010) Droit international public : contribution à l’étude du droit international selon une perspective canadienne. Wilson & Lafleur, Montréal Emerich Y (2011) Contribution à une étude des troubles de voisinage et de la nuisance : la notion de devoirs de la propriété. C de D 5:3–36 Emerich Y (2014) Les nouvelles frontières de l’expropriation : vers une expropriation pour cause d’utilité privée. Revue juridique Thémis de l’Université de Montréal 48(3):693–734 Emerich Y (2017) Droit commun des biens : perspective transsystémique. Éditions Yvon Blais, Montréal, p 224 Faget D (2016) Le droit collectif de propriété sur les territoires ancestraux : un collectif abstrait; des entités intermédiaires effacés. Int J Semiot Law 29:135–138 Gaillard É (2011) Générations futures et droit privé : vers un droit des générations futures. LGDJ, Paris Gidrol-Mistral G (2016a) Les biens immatériels en quête d’identité. Revue de droit de l’Université de Sherbrooke 46(1):67–138 Gidrol-Mistral G (2016b) L’affectation à un but durable, vers une nouvelle forme d’appropriation des biens communs? Réflexions autour de l’article 1030 du Code civil du Québec. RGD 1:95– 140 Gidrol-Mistral G, Popovici A (2019) Duguit appropriated: the case of trusts and collective ownership in Quebec. In: Babie P, Viven-Wilksch J (eds) Léon Duguit and the social obligation norm of property. Springer, pp 311–327 Gidrol-Mistral G, Tran Tran TN (2016) Publicité des droits et prescription acquisitive : des liaisons dangereuse? Revue générale de droit 46:297–342 Gilles D (2014) Essais d’histoire du droit : De la Nouvelle-France à la Province de Québec. Les Éditions Revue de Droit, Université de Sherbrooke, p 208 Halley P, Gagnon C (2012) Les réformes du droit de l’eau au Québec : un patrimoine commun et son État gardien. In: Halley P (ed) L’environnement, notre patrimoine commun et son État Gardien. Éditions Yvon Blais, Cowansville, p 239 Halley P, Tremblay H « Le droit de l’eau potable » (2008) 49 Cahiers de droit 333-391 [online: https://www.erudit.org/fr/revues/cd1/2008-v49-n3-cd2903/029656ar.pdf] Hogg PW (2007) Constitutional Law of Canada. Carswell, Toronto Jackman M, Porter B (2013) Rights-Based Strategies to Adress Homelessness and Poverty in Canada: the Constitutional Framework. Working Paper Series, Ottawa Jobin PG (1996) Le louage. Éditions Yvon Blais, Cowansville, p 125 Labrecque P (1997) Le domaine public foncier au Québec. Édition Yvon Blais, Montréal, pp 102–103 Lafond P-C (2007) Précis de droit des biens. Montréal, Éditions Thémis, p 1015 Lafond P-C (2009) L’heureuse alliance des troubles de voisinage et du recours collectif : portée et effets de l’arrêt Ciment du St-Laurent. Revue du Barreau 68:385–448 Lamontagne D-C (2018) Biens et propriété. Éditions Yvon Blais, Cowansville, p 19

La propriété face aux défis des biens communs au Québec

291

Lamontagne D-C, Duchaine P (2018) La publicité des droits. Éditions Yvon Blais, Montréal Landry I, Ouellet M-Contrat (2013) In : Service de la formation permanente du Barreau du Québec – Développement récents en droit de l’environnement : Évolution de la notion de troubles de voisinage en matière environnementale : question et distinctions. Éditions Yvon Blais, Cowansville Lareau E (1888) Histoire du droit canadien depuis les origines de la colonie jusqu’à nos jours. A. Périard, Montréal, p 157 Lefebvre B (2011) Les régimes matrimoniaux : contrat de mariage, séparation de biens, société d’acquêts. Éditions Yvon Blais, Montréal Lemieux C (1992) La protection de l’eau en vertu de l’article 982 C.c.Q. Revue de droit de l’Université de Sherbrooke 23:191–200 Marchand M (2019) Les fiducies d’utilité sociale : synthèse de connaissances. Territoire innvoants en économie social et solidaire (TIESS), Montréal Ministère de l’Énergie et des Ressources naturelles (2019) Politique de consultation des communauté autochtones propre au secteur minier. https://mern.gouv.qc.ca/wp-content/ uploads/PO-consultation-mines_MERN.pdf. Accessed 28 Nov 2020 Ministère de la justice (1999) Document de consultation publique : la gestion de l’eau au Québec. Publication du Québec, Québec Ministère des Affaires municipales et Occupation du territoire (2010) Guide de la prise de décision en urbanisme : acteurs et processus. http://www.mamot.gouv.qc.ca/amenagement-du-territoire/ guide-la-prise-de-decision-en-urbanisme/acteurs-et-processus/mrc/. Accessed 28 Nov 2020 Morel A (1987) La Charte québécoise : un document unique dans l’histoire législative canadienne. Revue juridique Thémis 21:1 Nadon O (2012) In : Jurisclasseur Québec – Droit de l’environnement : Autorisation préalable – L’autorisation ministérielle et la déclaration de conformité de la Loi sur la qualité de l’environnement. Lexis Nexis, Montréal Normand S (2019) La qualification du titre ancestral des peuples autochtones au regard du droit civil. Revue juridique Thémis de l’Université de Montréal 53(2):221–238 Normand S (2020) Introduction au droit des biens. Wilson & Lafleur, Montréal Patault A-M (1989) Introduction historique au droit des biens. PUF, Paris, p 67 Paul-André Crépeau Center for Private and Comparative Law (2018) Dictionnaires de droit prive en ligne. McGill. https://nimbus.mcgill.ca/pld-ddp/dictionary/search Pham C (2018) L’introduction d’un régime de responsabilité civile pour le préjudice écologique dans le corpus juridique québécois. Dissertation, Université de Montréal Popovici A (1997) La poule et l’homme : sur l’article 976 C.c.Q. Revue du Notariat 99:214–254 Popovici Al (2012) Le patrimoine d’affection : nature, culture, rupture. Dissertation, Faculté des études supérieures et postdoctorales de l’Université Laval Popovici Al (2013) Quebec’s Partnership: une société distincte. J Civ Law Stud 6:339–372 Rayneault N (2008) L’expropriation municipale québécoise : mise en œuvre et contrôle. Dissertation, Université Laval, p 27 Reid H (2016) Dictionnaire de droit québécois et canadien en ligne. Wilson & Lafleur, Cowansville. . Renno K (2015) In : Lafond P-C (ed) Jurisclasseur Québec – Procédure civile : Audiences, délais, intérêt pour agir, représentation devant les tribunaux et certaines conditions pour agir. Lexis Nexis, Montréal Rousseau G (2013). In : Jurisclasseur Québec – Droit municipal : Planification et aménagement. Lexis Nexis, Montréal Thériault S, Tremblay-Potvin C (2012). In: Beaulac S, Gaudreault-Desbiens (eds) Jurisclasseur Québec – Droit de l’environnement. Lexis Nexis, Montréal Thériault S, Tremblay-Potvin C (2017). In: Jurisclasseur Québec – Droit de l’environnement. Lexis Nexis, Montréal

292

G. Gidrol-Mistral and A. Popovici

Tremblay H (2008) La gestion économique de l'eau souterraine par le droit de propriété au Québec. Revue de droit de l'Université de Sherbrooke 38:484–537 Tremblay H (2017) Le droit de l’eau face aux déluges bibliques et aux sécheresses millénaire :la gestion des conflits d’usage causés par la variabilité hydrologique. C de D 58:383–424 Vivier N (2003) Les biens communaux en France. In : Démélas M-D, Vivier N (eds) Les propriétés collectives dace aux attaques libérales (1750-1914) : Europe occidentale et Amérique latine. Presses universitaires de Rennes, Rennes, pp 139–154 Zoltvany YF (1971) Esquisse de la Coutume de Paris. Revue d’histoire de l’Amérique française 25(3):365–384

Property Meeting the Challenge of the Commons in Russia Maria Erokhova and Dmitry Dozhdev

Abstract In Russian law there is no such term as “commons” and there is no underlying concept of objects serving the common interests of all people. Nor does Russian law express any concern about future generations. There are two possible regimes of property destined to serve the interests of all: (1) property exempted from private ownership and civil turnover relationships, such as water, which the State protects and makes available free to its residents, and (2) property owned privately where the owner bears duties to protect the object and assure its access to all by special arrangement (e.g., cultural property). In pre-Soviet times Russian legislation featured the notion of “common participation” in some kinds of property, such as water navigation and public road transportation. During the Soviet period (1917–1989) land and natural resources could not be objects of private property and were deemed all-people domain. Since then, all-people domain has become State property, open to privatization.

1 Questionnaire: Part I 1.1

What Legal Categories in Your Legal System May More Closely Correspond to the Notion of the Commons as Deployed in the Introduction?

At present in the Russian law discourse there is no such term as “commons” and there is no underlying concept of objects serving the common interest of all people. The Constitution of the Russian Federation (Basic Law) of 1993 does not comprise

M. Erokhova Faculty of Law, Moscow School of Social and Economic Sciences, Moscow, Russia D. Dozhdev (✉) Faculty of Law, Moscow School of Social and Economic Sciences, Moscow, Russia Russian School of Private Law, Research Centre for Private Law, Moscow, Russia © The Author(s), under exclusive license to Springer Nature Switzerland AG 2023 U. Mattei et al. (eds.), Property Meeting the Challenge of the Commons, Ius Comparatum - Global Studies in Comparative Law 59, https://doi.org/10.1007/978-3-031-25218-1_9

293

294

M. Erokhova and D. Dozhdev

any statement or allusion on property reserved to the use in the common interest of all. The land and the natural resources that are proclaimed to be used and preserved “as a ground of life and activities of the peoples living on the respective territory” (Part 1 Article 9) could be object of “private, state, municipal and other forms of ownership” (Part 2 Article 9), that is in any form of ownership. Taken literally, these words presume that there is no way to exempt either land (even like a territory) or natural resources from any form of ownership at all to be reserved as a kind of public domain or people’s property. There is no legal form to encompass and to protect the common interests envisaged in the Constitution of 1993, nor does the Basic Law express any concern about future generations. The special laws provide sometimes that some kinds of property are exempted from private ownership, but do not indicate ideologically relevant reasons, referring generally to the provisions of the Constitution, which could imply some perennial values connected in the social consciousness with the Basic Law, but not necessarily those making part of the commons. Speaking on the limitations on private property in land (Part 2 Article 36), the Constitution mentions such concerns as ecological safety and rights and interests of others. Advancing eventual reasons for the limitation on human rights and liberties imposed by law (Part 3 Article 55), the Basic Law enumerates: (1) protection of the constitutional order; (2) morality; (3) health; (4) rights and legally recognized interests of others; (5) military defence and state security. Actually, the Constitution does not advance any structured concept of the interests of the people as a whole. Still, from the optimistic point of view, it could be held that the exemption of some property from private ownership and market relationships is backed by the ideology that nears the idea of commons. Let us consider the kinds of property that in the present-day Russian law cannot be object of private ownership.

1.1.1

Land Plots Within the Forest Areas

The Forest Code of the Russian Federation 2006 envisages (Article 8) that the forests belong to the Federal property. The forests are viewed by the legislation as both ecologic systems and natural resources and are managed according to their social, ecological and economic purposes. To manage the forest plots the Subjects of the Federation create special Departments of Forest Economy. The Departments are entitled to give the forest plots in lease or in gratuitous use to private persons and to establish the servitude of passage through such a plot (Article 9). People are entitled to free and gratuitous access to the forests. They can gather fruits, berries, nuts, mushrooms and other forest products for their use and consume (Article 11). All people visiting the forests should comply with the rules of fire and sanitary care. The Department of forest economy can give permission to private persons to cut the forest to get wood or for sanitary purposes (Articles 16–18).

Property Meeting the Challenge of the Commons in Russia

1.1.2

295

Specially Protected Natural Territories

The status of specially protected natural territories is determined by the Federal Law “On Specially Protected Natural Territories” (1995) that enumerates under this category the plots of land, water and air space above them containing objects of special ecologic, scientific, cultural, aesthetic and health relevance (Article 1). The Law states that specially protected natural territories are objects of all-people domain and may be in the federal or regional state property or in the municipal property (Article 95). The term “all-people domain” («народное достояние»: narodnoje dostojanije) was present in the former (Soviet) Constitutions (1936, 1976), but is not known to the Constitution of the Russian Federation in force (1993). Its usage in the Law is due to the tradition of social consciousness and, strictly speaking, has no legal foundation in the present-day Russian law. In accordance with Article 9 of the Constitution of the RF proclaiming that every object can be private, state or municipal property, the specially protected natural territories can belong to private persons, to the Russian Federation, to the Subjects of the Russian Federation (regional property) or to the municipalities (local powers), depending on their legal status. It means that “all-people domain” has been transformed in the post-Soviet period to the state or municipal property. On the decision of public powers such property may be rented out and thus involved in economic use. Article 2 of the Law “On Specially Protected Natural Territories” enumerates the following categories of the specially protected natural territories: (1) reserves; (2) national parks; (3) natural parks; (4) natural monuments; (5) botanical gardens. (1) Reserves According to Part 2 Article 6 of the Law immoveable property situated within the territory of the state natural reserves are objects of Federal property and are exempted from circulation. The most ancient in the world is the Baikal natural reserve. 1 There is no private land, nor private buildings within its territory. (2) National parks Any immoveable property or natural resources situated within the national parks are objects of Federal property and are exempted from civil turnover (Article 12). People can visit national parks for tourism and recreation paying a fee established by the public power managing the national park (Part 6 Article 15). The land plots situated within the national park territory can be given to private persons in lease, but for health or sportive ends only (Article 17). One of the most renowned national parks in Russia, Valday Park, comprises Iversky monastery that belongs to the Russian Orthodox Church. There is a private hotel in the Park territory, but the owner leases the land where it is located from the state. 2 The national park Kurshskaya Kosa comprises three villages with plenty of private houses, and the owners lease the land they occupy

1 2

http://baikal-zapovednik.ru/. http://www.valdaypark.ru/.

296

M. Erokhova and D. Dozhdev

from the state. 3 The latter Park provides an example of the model limitations for visitors. The website of the Park envisages that it is forbidden for visitors to enter the Park by car; to park the car out of the special parking places; to ride quadricycle cycles; to make fire and to organize fireplaces; put tents elsewhere, but only in the specially arranged places; to pollute the place and leave rubbish; to walk on dunes and to reach the sea elsewhere, but only in the specially indicated places; to gather mushrooms, berries, plants; no hunting; no dogs; no other action that could damage the nature or diminish the aesthetic value of the landscape. (3) Natural parks Unlike the national parks, natural parks are not exempted, but only limited in private use. The immoveable property within the national parks could become object of private ownership (Article 18). (4) Natural monuments (i.e. natural features of unique value) are not limited in the civil turnover and could be private property, but every owner should undertake a duty to preserve and to assure the regime of protection of the object (Article 27). (5) Botanical and dendrology parks The parks of this category are limited in the civil turnover. According to Article 28 of the Law these can be only objects of state property and can be managed by the state institutions and state academic organizations. 1.1.3

Water Objects and Shore Lines

The water objects are regulated by the Water Code of the Russian Federation (1995). The water objects include surface waters (seas, fluids, water reservoirs, swamps, glaciers) and underground waters (water horizons, underground water basins). The surface waters comprise the waters and the shore lines (Article 5). The water objects belong to the Federal property, except for ponds within the private land plots (Article 8). Article 6 of the Law declares the surface waters belonging to state or to municipal property “public objects for common use”. They are water objects of free access. Anybody is entitled to have access to the objects of common use and to use them gratuitously for personal and everyday purposes. The water objects constitute proper commons for the present-day Russian law.

1.1.4

Cultural Values

The regime of cultural values is regulated by the Federal Law “On the Objects of Cultural Heritage (Historical and Cultural Monuments) of the Peoples of the Russian Federation”. The Law proclaims that the objects of cultural heritage

3

http://www.park-kosa.ru/cn_posetitelyam/pravila-povedeniya/.

Property Meeting the Challenge of the Commons in Russia

297

represent unique value for the whole multi-national people of the Russian Federation and are an unalienable part of the world cultural heritage. These objects are not exempted from the civil turnover and can belong to private persons, but everyone is authorized to access the objects of cultural heritage in the order established by the Article 47.4 of the Law “On the Objects of Cultural Heritage”. The order of access is the following. The objects are fixed in the State Open Register of the Objects of Cultural Heritage that is administrated by the Ministry of Culture of the RF 4 and on the agreement of the Ministry with the owner the access to the object is opened for anyone who wants (Part 2 Article 47.4). The use of the Register is complicated: to find the single item, one has to enter its registration number and location, and this information is not easily obtained. In practice, however, the access to the cultural values is given through expositions conducted by the public powers or by private persons on the agreement with the owners of the values. The Law (Articles 47.6 and 47.1) envisages the imposition on the owner of the value of a special obligation to protect it. The object of the cultural heritage being immovable, the protection obligation of the owner should be fixed in the United State Register of the Immovable Property. If the owner of the cultural values enlisted in the State Open Register of the Objects of Cultural Heritage does not comply with the protection obligation, the public powers can sue him in court demanding the seizure of the object from his property in conformity to the rules applied to the waste of property (Article 54 of the Land Code of the Russian Federation). The sanction, however, is not applied in the case of violation by the owner of his duty to grant public access to the values.

1.1.5

Natural Medicinal Resources

The source of the legal regulation is the Federal Law “On the Natural Medicinal Resources, Health-Improving Locations and Resorts” (1995). Natural medicinal resources comprise mineral waters, curative mud, salt lake waters and normal lake waters (Article 1). These resources are deemed property of the state (Article 9). However, the state owns the natural resources to preserve them and to provide that they are used for their purposes, and is expected to assure their medicinal means to the people. To comply with this end, the state can grant the natural medicinal resources in concession to the private persons (Article 11).

1.1.6

Continental Shelf

The continental shelf is the seabed and the bosom of the undersea regions lying outside of the territory waters of Russia (Article 1 of the Federal Law “On the 4

https://www.mkrf.ru/ais-egrkn/.

298

M. Erokhova and D. Dozhdev

Continental Shelf of the Russian Federation” 1995). The Russian Federation exercises its sovereign rights to explore the continental shelf and to exploit its mineral and biologic resources (Article 5). These rights are established as exclusive: nobody can explore the continental shelf without the consent of the Russian Federation. The state can grant concessions for the exploration and exploitation of the continental shelf to private persons.

1.1.7

Subsoil Resources

The legal status of the subsoil resources is determined by the Federal Law “On the Subsoil Recourses” (1995) laying down that these are the property of the state. (Article 1.2). The management of the subsoil resources (as well as that of water and other natural resources) is reserved by the Constitution of the RF (Article 72) to the common administration of the Russian Federation and its Subjects. Both the Russian Federation and the respective Subject of the Federation issue the legislation on the subsoil resources. The concessions for the exploration and exploitation of the subsoil resources are granted to private persons by the Subject of the Russian Federation (Article 4 of the Federal Law “On Subsoil Resources”), while the minerals and other resources extracted by authorized persons belong to them in private ownership (Article 1.2).

1.1.8

Motorways

The legal status of the roads serving all people is determined by the Federal Law “On the Motorways and Road Works in the Russian Federation”. The Law establishes the United State Register of the Motorways of the Russian Federation. Each road officially in use in the country, as well as its category, should be fixed in the Register (Article 10). The motorways can be objects of private property (Article 6), but the owner should give access to every interested person if the road is qualified by the public powers as a road “for common use” (Article 28). That is the first time we encounter the category of “common use” in the Russian legislation. The owner of the motorway bears the burden of its maintenance and repair (Articles 14–22). Granting access to the motorway for private persons, the owner of the motorway is entitled to charge a road fare (Article 36).

1.1.9

Railroads for Common Use

The legal status of the railroads is determined by the Federal Law “On the Railway Transport in the Russian Federation” (2002) and by the Land Code of the Russian Federation (2001). The Land Code (Part 3 Article 27) lays down that the land plots occupied by the railways of common use belong to the Federal property.

Property Meeting the Challenge of the Commons in Russia

1.1.10

299

Aviation Property

The Air Code of the Russian Federation (1997) defines that all property of the civil and experimental aviation—aircrafts, airports, means of security—can belong to private as well as to public property, but the objects of the united system of air traffic can exclusively belong to the Federal property. That means that the property designated to the interests and needs of all is exempted from the private property and from the market relationships. However, there are cases when such property falls into the private hands by mistake, but continues to serve to the common needs by destination. The runway strips are referred by the Air Code of the RF (Article 7) to the means of air traffic and are exclusively public. In 2011 the Supreme Commercial Court of the RF 5 dealt with the dispute regarding a runway that was unduly privatized in the Republic of Buryatia (one the Subjects of the Russian Federation) in 1994. The runway strip became private property, as it was said, in 1994, while the public office Property managing committee filed the claim only in 2010. The vindication claim in the Russian law is supposed to be made within a 3-year prescription term. And the defendant advanced the respective exception, for the public office should have been aware of the privatization act. The claimant insisted that the prescription term was inapplicable to disputes on property that was exclusively public. The dispute reached the Supreme Commercial Court that applied the prescription term. 6 It came out from the materials of the case that the private ownership on the means of air traffic did not entail any inconsistency in its exploitation. The property was used in compliance with its public scope of serving the common interest.

1.1.11

Federal Mail

The means of national mail service are regulated by the Federal Law “On Mail” (1997). General mail means can be private property, but the means of the Federal mail are deemed to be the Federal property and cannot be privatized (Article 24). The public scope of this type of property is to assure mail service for the whole population of Russia.

1.1.12

Places of Burial

The legal status of the places of burial is defined by the Federal Law “On Burial” (1996) and the Article 27 of the Land Code of the RF. The special regulation is due to

5

The Supreme Commercial Court was the highest court dealing with the commercial disputes in the Russian Federation in 1992–2014. In 2014 the Court was disbanded and since then its role is exercised by the Economic Collegium of the Supreme Court of the Russian Federation. 6 Statement of the Presidium of the Supreme Commercial Court of 11.10.2011 N. 7337/11.

300

M. Erokhova and D. Dozhdev

the specificity of the object. The cemeteries are exempted from the civil turnover (Point 4 Article 27 Land Code).

1.1.13

Author’s Right After the Expiration of the Exclusive Right Term

According to Article 1282 of the Civil Code of the RF (2000) on the expiry of the time period previewed for the validity of the exclusive right of the author of a work of science, literature or art such work shall pass into the “all-society domain”. The authorship, the name of the author and the inviolability of the work remain equally protected, but the use of the work since the expiration of the exclusive right term becomes free. Any person can use the work freely “without any consent or permission and without payment of author’s compensation” (Part 2 Article 1282). 7 The work can be published by anybody and the person who has published the work after it had passed into the public domain will get publication right nearing the rights on copyright (Article 1303). The publication right is an exclusive right and its turnover rules are similar to those of the copyright. Everyone’s right to use freely the work after its passage into the public domain is a clear example of commons in the Russian law.

1.1.14

Conclusion

It can be deduced from this overview of the Russian legislation in force that there are two possible regimes of the property destined to serve the interests of all: (1) some kinds of property are exempted from the regime of private ownership and civil turnover relationships (e.g. the water objects) and referred to the exclusive property of the state, while the state undertakes the duty to protect such property and to assure free use of it to all people; (2) other kinds of property can be owned by private persons, but the private owner of such property is burdened with the duties to protect the object and to assure access to it for everyone on special agreement (e.g. the cultural values). The institution of commons, though, can be recovered from the systematic analysis of the current legislation and the court practice; it is not, however, backed by the provisions of the Constitution of 1993 and the very idea of property with the scope to serve the interests of all and open to free use of everyone is far from being consolidated into one unique category within the present-day Russian legal doctrine. The regime of free access is recognized with regard to the water objects and to the author’s works upon the expiration of the time for the exclusive rights of the author. The water objects are declared by the respective legislation to be public property, but everybody has the right to receive permission from the state body managing state property to use it privately. The regime of free access to the author’s work is called

7

Civil Code of the Russian Federation (2008), p. 148.

Property Meeting the Challenge of the Commons in Russia

301

“all-society domain”. Much more prevalent is the notion of state property that is viewed not as private property of the state (that is not exempted from the civil turnover), but as public property, exclusively reserved to the state (and exempted from free market) so that the objects fall into the public domain. This issue is treated more specifically in the next part of the report.

1.2

Is There Today or Was There in the Past a Concept of the Commons in Your Legal System? In the Affirmative, Is It Statutory, Jurisprudential, Doctrinal or Customary?

In the pre-Soviet (tsarist) times the Russian legislation operated with the notion of “common participation” in some kinds of property, i.e. limits imposed on private property in the interests of everybody. 8 The relevant examples of the rights of common participation [in the use of smb.’s property] included mostly the duties of passage and navigation: 9 – the owner of a road is not entitled to prevent free passage to anyone; – owner of the road should open the space along the road for cattle and allow the passing cattle to feed from his loans; – owner of the land plot along the navigable river should assure free navigation for others and cannot, thus, arrange any construction (mill, dam, etc.) that could obstruct navigation or clog up the duct; – owner of the land along the navigable river should allow access to the river for those who push or lift up vessels, to allow vessels to moor and to stop at the riverbank. The category of the rights of common participation was included in the broader category of the limitations on property for the common good forming part of the Book 3 “On Property rights” of the Draft Civil Code of the Russian Empire (1905) “On the Limitations of Property Rights for Common Good” (Chapter 2: Articles 39– 48). 10 The Chapter started from the rule on expropriation for public needs (Article 39), enumerated various duties of passage and navigation for the owners of the land adjoining a public road or navigable river, and concluded exposing the duty to observe the right of free fishing for everyone (Article 48). The category, thus, combines both alienation of property (expropriation) and imposition of limitations and duties for common needs. The Draft Civil Code 1905 was never adopted by the The notion of “common participation” was coordinated with that of “private participation” indicating at the servitude (easement). 9 Article 434, T. X, Corpus of the Laws of the Russian Empire. E.g., Meyer (2003), p. 23. 10 Proekt Grazhdanskogo Ulozheniya Rossijskoy Imperii (Draft Civil Code of the Russian Empire). (1905) Book 3, vol. 1. Senate, St.-Petersburg, p. 141. 8

302

M. Erokhova and D. Dozhdev

Russian Parliament. The outburst of World War I in 1914 prevented it from coming into force and the October Revolution of 1917 abolished the category of common good together with all tsarist legislation. On the day after the October Revolution the new socialist powers promulgated the Decree “On the Land” (November 8, 1917) and all the land passed into the all-people land fund. The land could be distributed among the working class on the decision of the local self-government. The private ownership in real property was abolished, as well as all forms of its legal limitation for common good. During the Soviet period (1917–1989) the land and all natural resources could not be objects of private property and were deemed all-people domain (« общенародное достояние »: obsshenarodnoje dostojanije—Article 5 of the Constitution of the USSR 1936; Article 11 of the Constitution of the USSR 1977). The state had to protect and to manage the all-people domain. The notion of all-people domain is due to the negation of private property in principle, and is thus incompatible with that of commons aimed at the determination of property in common use and for common good within the context of private property and market economy. Since dismantling of the socialist order in the late 1980s and negation of the Soviet ideology, the all-people domain was declared public (state) property and was open to privatization. The right of private ownership in land was recognized by the Foundations of the Civil Law of the Russian Federation (1990), then fixed in the Constitution of the RF 1993 (Article 9) and regulated in the Civil Code of the RF (Part I: 1994; Part II: 1995), but the entry in force of Chapter 19 of Part I of the Civil Code of the RF was postponed until the adoption of the Land Code. The Land Code of the RF was promulgated in 2001. Article 1 (6) of the Land Code lays down the priority of preserving especially valuable lands and lands of specially protected areas, according to which the change in the established purpose of valuable agricultural lands, lands occupied by protective forests, lands of specially protected natural territories, lands occupied by cultural heritage sites, other especially valuable lands and lands of specially protected territories for other purposes is limited or prohibited in the order envisaged by the Federal laws. The specially protected categories of the land and the order of change in the established purpose of the land and its putting into the other category are envisaged in Articles 7 and 8 of the Land Code and in the laws indicated under the Point 1 above. The very determination of the specially protected categories pursues the aims directly connected with the category of common interest of people. Chapter 2 of the Land Code (Articles 12–14) specially deals with general protection of lands that clearly pursue the scope of common interest (fertility, ecology etc.). As a means to assure such common interests as passage, access to water resources, fishing, watering of the chattel, haymaking, etc. the Land Code establishes public servitude (Part 3 Article 23). The public servitude can be established by the normative act issued by the Russian Federation, by the Subject of the Russian Federation, by the local self-government organ depending on the scope of interest in view. The public servitudes will be treated in detail at Point 8 below. The various limitations on property can be established for the reasons of protection of environment, flora and fauna, migration of wild animals, fertility of land, and

Property Meeting the Challenge of the Commons in Russia

303

historical and cultural monuments (Part 2 Article 56). Among the reasons for expropriation of land plots for public needs, the Land Code (Article 56_3 11) enumerates those clearly connected with common interest (for example, change of the category of the land plot for ecological or social reasons, the need for reconstruction of the dilapidated or collapsing buildings). In the course of dismantling the socialist legacy, therefore, the legal institution of all-people domain has been replaced by the state property. Article 214 of the Russian Civil Code lays down that the land and other natural resources that are not in the private ownership of physical or legal persons and not in the ownership of the local bodies fall into the property of the state. The idea of commons can be seen in the determination of the specially protected categories of land and in the limitations on private and public property established in common interest and granting to everybody the right to access or to use the property of another in some cases. The legal construction of common participation known to the pre-revolutionary Russian Law re-emerged in the form of the public servitude.

1.3

Is the Commons Today a Topic of Academic Debate in Your Legal System – and in the Affirmative in What Context?

At present the concept of commons is not discussed in the academic community of Russia. No link for a special conference or round-table on the issue can be provided. Still, there are cases in judicial practice when assets exempted from the private property fall into private hands by mistake. The most common case regards the plots of forest that became occasionally private. It gave rise to the discussion of why forest areas cannot belong to private persons. Sometimes the forestry while fixing forest areas failed to indicate the outer woods as part of the forest and to register these areas in the United State Register of the Immovable Property. 12 As a result, the municipalities considered these areas agricultural lands and disposed of them within their discretion. The municipalities sold the outer woods to private persons, the purchasers registered their private property, and the lands entered into the free market. In 2013–2017 the forestry re-examined the situation, monitoring the forest areas, and found out that some parts of them (mainly outer woods) resulted in the private

A special Chapter VII_1 (Articles 56_2 – 56_12) “Order of the expropriation of the land plots for public needs” was introduced since April 1, 2015 by the Federal Law N.499 (31.12.2014). 12 The grounds for error were even more favorable before 1997 when the State Register of Titles in the Immovables did not exist. Since January 1, 2017 the former State Register of Titles in the Immovables is united with the State Cadaster in the United State Register of Immovable Property (according to the Federal Law N.218 of July 13, 2015 “On the State Registration of Immovable Property”). 11

304

M. Erokhova and D. Dozhdev

property. The public representatives started to file vindication claims against the private owners arguing that there could be no private ownership on this plots, for the forests in no manner could become privatized. The courts supported this position on the ground of protection of the public interest. 13 On the side of the purchasers there was present a contrary ground, that of good faith. Relying on the public register in full accordance with the law, they could have not possibly known that the plots belonged to the category of lands exempted from private property. The conflict has gained wide resonance and the issue was intensively discussed by lawyers and the State Duma (Parliament). The main concern of the discussion was the underlying principle of exemption of the forest plots from the civil turnover. 14 The new Federal Law N. 280 from July 29, 2017 followed, that was labelled “forest amnesty”. The main rule the Law laid down is that the good faith purchaser who relied on the data of the public register (United State Register of the Immovable Property) becomes irreversible owner of the plot, that should then be excluded from the category of the forest areas. The courts, thus, should deny the vindication claims from the public bodies, once the exception of good faith is opposed. Now even the previous court decision does not prevent the purchaser from bringing the new claim demanding the recognition of the right of property in the land (forest) plot (Point 5 Article 10). The discussion failed to reveal and pursue the idea of commons; the public interests were sacrificed to the certainty of the law and the stability of the turnover.

1.4

Is There Any Kind of Public Property in Your Legal System That Is Absolutely Not Alienable?

The exemption of property from the civil turnover in Russian law is not necessarily coordinated with the scope to reserve this property for common use and the idea of commons. In Point 1 above, the list of property for common use has been presented. Here it will be complemented with the list of objects that are absolutely inalienable. The list is present in Part 4 Article 27 of the Land Code of the RF. Besides those presented under the Point 1 above, these are the lands occupied by military objects, such as locations of military forces, military courts; objects of state security; objects of state defence; nuclear objects: nuclear power plants, nuclear storage facilities, and other nuclear objects; communication lines erected for the purposes of defence of the state border; penalty enforcement services; engineering structures.

See as an example of a commercial court decision case N. А62-4540/2015, and for the general jurisdiction case N. 2-6/088-2016. 14 The records of some discussions can be found at: http://леснаяамнистия.рф/page690366.html; http://леснаяамнистия.рф/page1828949.html. 13

Property Meeting the Challenge of the Commons in Russia

305

The Constitution of the RF (Article 72) mentions some kinds of property for common use (land, water objects, natural resources) under the heading “On the purposes of joint care of the Federal Powers and the Subjects of the Russian Federation”. The idea returns to December 27, 1991 when the Supreme Soviet of the Russian Federation promulgated Statement N. 3020-1 “On the delimitation of property within the Russian Federation in the Federal property, state property of the Republics making part of the Russian Federation, state property of the regions, autonomous regions, cities of Moscow and Saint-Petersburg, and municipal property”. All property enumerated in this still valid Statement was usually uncritically regarded as exempted from the civil circulation and distributed between Federation and its regions. The official explication of the issue followed in 2014. In one case, the municipal body sold a historical monument to a private person. Later, the same municipal body claimed the object from the purchaser stating that the historical monument cannot be private property. The claim was backed by the reference to the fact that historical monuments fall into the category of joint care of the Russian Federation and its regions. The case reached the Supreme Commercial Court that gave an official interpretation of the norm in question. 15 The Court indicated that the delimitation of property between the Russian Federation and its regions does not imply the exemption of the property from the civil turnover and does not establish exclusively public legal status of such property.

1.5

Are There Remedies in Your Legal System for Someone to Challenge in Court a Government That Decided Privatization of the Commons?

The Code of Commercial Procedure of the RF contains special provision (Article 52) authorizing the Public Prosecutor to claim for nullification of the acts of privatization made by the public bodies and to vindicate the property from the purchasers. The ground for the claim is precisely the fact that such property is exempted from the civil turnover and cannot fall into the private hands. Thus, if the local body will decide on privatization of a coastline, the decision will be nullified on the claim of the public prosecutor and the property taken from the purchaser. The same powers are possessed by the Federal Agency for the management of the state property (“Rosimusshestvo”, scil. “Russian [Federal] Property [Agency]”). The Agency functions as manager of the state property and decides on privatization. Its powers and duties are regulated by the Act on the Federal Agency for the management of the state property, enacted by the Statement of Government N. 432 from June 5, 2008. The Agency is entitled to claim for nullification of any bargain concluded with the objects reserved for the exclusive property of the state (public 15

Statement of the Presidium of the Supreme Commercial Court of the RF N. 1792/14 of June 3, 2014.

306

M. Erokhova and D. Dozhdev

property). 16 For instance, if a municipal body sells a forest plot, the Federal Property Agency will vindicate the plot from the purchaser. The Federal Property Agency can act together with the public prosecutor to protect the public property. Private persons cannot claim for nullification of the privatization acts. However, everyone can file a complaint to the public prosecutor and ask him to act in protection of an uncertain group of people. The defendant of the claim for nullification of the privatization act cannot advance a good faith exception in his defence. The main concern regards the prescription of action that can invalidate the prosecutor’s claim. Recently, the Supreme Court held that the prescription of action term should start from the moment when the person in whose interest the claim is filed should have known about the violation of his rights and interests and identified the defendant. 17

1.6

Are There Remedies in Your Legal System for Someone to Challenge in Court a Government That Decided Nationalization of the Commons?

In the present-day Russian law there is no such category as commons. The property destined for the common interest is reserved as public property and belongs to the state or to the local powers (municipalities). The nationalization, instead, could be backed by the grounds of common (public) interest. For instance, the Land Code of the RF (Chapter VII_1: Articles 56-2–12) provides special legal mechanism of expropriation of the land plot for improper use or violation of the land category and its regime. The preservation of the special regime of the category of land and the order of its use serves the interests of all and by itself could be regarded as a mode of existence of commons in the Russian law. However, nationalization could affect the private interest. The private owner can sue the state for damages on the unfair nationalization act (Article 306 Civil Code). It can be assumed that the act of nationalization could affect not only the owner, but some wider interest (for instance, nationalization of a private road could damage all those who made use of it). All damaged persons then could sue the public body for a just compensation. Still, there is no judicial case to support this assumption.

16

Point 5 Act on the Federal Agency for the management of the state property. Point 5 Statement of the Supreme Court of the Russian Federation N. 43 “On some issues connected with the application of norms of the Civil Code on the prescription of action” of September 29, 2015. 17

Property Meeting the Challenge of the Commons in Russia

1.7

307

To What Extent Private Property Is Considered a Fundamental Right in Your Legal System, and What Other Constitutional Rights Could Defeat it in a Balancing Test?

Chapter 2 of the Constitution of the Russian Federation, considering fundamental human rights and liberties, proclaims that the right of private ownership is protected by law and that no one can be deprived of his property except on the decision of the court (Article 35). The right of ownership is thus referred to the fundamental human rights. Private property is thus laid down as a foundation of the civil society and the modern Russian statehood. The whole system of the present-day Russian law is subordinate to this basic value. All other regulations should be interpreted taking into account this fundamental principle and all specific rules and regulations are structurally dependent on it. That means that there should be no competing values with the principle of private property in a proper organized and balanced legal regulation, and no other right could possibly defeat the fundamental right of ownership. Article 36 of the Constitution of the RF guarantees the right of private ownership in land. The possession, use, and disposition of the land and other natural resources should be realized freely by the private owners, if it does not damage the environment and does not affect the rights and legally recognized interests of others. Article 42 of the Constitution of the RF, however, proclaims the right of everyone to the enabling environment and information on its state. It can be deduced that the right of private property is limited by the right of all people to the ecologically enabling state of the environment. Article 40 of the Constitution of the RF guarantees the right of living residence for everyone. Based on that principle Article 446 of the Civil Procedure Code of the RF forbids the levy of one’s unique residential premises for debts. Everyone is liable for his debts with all his property (Article 24 Civil Code of the RF). The right of creditor to get satisfaction from the levy on the property of the debtor is thus defeated by the human right to the living residence. In 2012 the Constitutional Court of the Russian Federation examined how the rule of Article 446 of the Civil Procedure Code of the RF fits with Article 35 of the Constitution. The special Statement of the Constitutional Court 18 recognized that Article 446 of the Civil Procedure Code of the RF fully corresponds to the Constitution, as the right of private property that backs, among others, the right of the creditor for levy on the assets of the debtor subject to limitation by the right of everyone to a living residence. The Constitutional Court remarked, however, that the residential right is protected from the levy in the extent of minimal normative of residence. The mechanism of realization of the excessive part of the residence should still be elaborated, and the lack of such mechanism does violate the right of the creditor to get satisfaction from levy on the debtor’s assets. It was stressed that in that

18

Statement of the Constitutional Court of the Russian Federation N. 11-P of May 14, 2012.

308

M. Erokhova and D. Dozhdev

issue the right of property of the creditor resulted in conflict with the human right of the debtor. In recognizing the proprietary nature (in the constitutional sense of the term) of the right of the debtor to levy the whole property of the debtor to get satisfaction of his claims the Constitutional Court fixes the conflict of the rights on property. From the civil law perspective, however, the competing rights should be regarded as the obligation rights on the part of the creditor and that of property on the part of the debtor. This perspective deprives the conflict of the constitutional dimension and re-establishes the legal harmony. Thus, the claim in vindication of the residential premises will not be defeated in the view of the constitutional right of the defendant to a living residence.

1.8

Private Property Is an Institution Aimed at Allowing Exclusion from Land. Is There Any Limit to Such a Power of the Owner to Exclude Justified by a Right of Access of the Private Non-Owner?

In the Russian law the owner has to admit the access to his property from the part of an indefinite circle of persons in three types of situations. (1) Public servitude Public servitudes are regulated by the Land Code of the RF (Article 23). Public servitude can be established for the purpose of transit and passage; repair of the communication and electric lines; access to water resources; haymaking; hunting. Public servitude is established not by agreement of the neighbouring owners but by the normative act of the state or local power in the interests of all people having a need in it. The owner is authorized to impose a reasonable fee for the limited use of his property by another (Point 6 Article 23). The amount of payments can be established by the court. (2) The private property reserved to the use of all In was shown under Point 1 that some objects in the Russian law destined to serve common interests can belong to private persons. Such objects are the motorways and the cultural values. The owner of such objects undertakes duty to assure access to them for everyone on reasonable conditions. The owner of the motorway should allow the transit and the owner of the object that is recognized and registered as cultural value should assure to anyone who wants the possibility to contemplate the masterpieces comprising part of his property. (3) Linear objects within the land plots in private property The Russian Civil Code (Article 130) defines as immovable not only land plots but also buildings and construction. Some constructions are linear objects: lines of gas

Property Meeting the Challenge of the Commons in Russia

309

and water pipelines, communication lines, power supply, including cables and various facilities. The owner of the linear object can (and usually does) differ from the owner of the land where it is situated. In the cases when the owners of the land demand in the court removal of the linear objects, the courts deny the claims making reference to the public interest in the stable supply with water, power, gas, Internet, etc. 19 In fact, the current rules of the Russian legislation do not imply such decisions, nor give apparent ground to protect the common interests in this way. It would not be correct to hold that the linear object functions within the scope of common interest, while the private property in land serves the interests of its owner. The linear object itself belongs to the private property of its owner and the usual reference to the common interest is simply the way to pursue the private interests of the supplying company and to defeat the competing interests of other private owners. According to the Civil Code in force, the disputes of this type should be decided on the private law grounds and both owners of the immovable property should be treated equally. The court should either support the claim of the owner of the land (negation claim—Article 272 Civil Code), or establish a private servitude in favour of the owner of the linear object burdening the land (Article 272). One may suppose that conflict emerged due to the local powers’ mistake when the public body privatized the land plot without taking into consideration the presence of the linear object in it. The claim of the owner of the land plot actually gives an opportunity to the court to mitigate such mistake: to fix the borders of the land plot in a proper way and to decide on the purchase of the part of the plot to satisfy the needs of the linear object. In a different perspective, the servitude can be established in favour of the linear object to assure access to the supporting construction and other facilities for maintenance and repair. In the Russian law, the owner of the dominating immovable entitled to the servitude is at the same time obliged to pay a periodic fee to the owner of the serving land plot. Such compensation to the landowner could settle the issue. The current court practice remains inconsistent, even when conceived from the ideological point of view. There are recent judgements supporting the establishment of the servitude and even those ruling to demolish the lines of supply. However, the claims of landowners are most frequently denied and the court decisions are usually backed by the alleged “common interest”.

19 In one known case the Supreme Commercial Court supported the claim for dismantling of the power line supports (Statement of the Presidium of the Supreme Commercial Court of March 19, 2013 N. 15104/12): all lower courts’ decisions were motivated with the typical reference to the common interest.

310

M. Erokhova and D. Dozhdev

2 Questionnaire: Part II 2.1

Housing

John, Orri, Sekela and Satoshi, desperate to find a home at an affordable cost, together with their families (including several children) inhabit homes in a development project, suspended due to delayed authorizations. The four friends and their families work on both the buildings and the land to enhance their living conditions (for instance, by painting the walls and adding a little garden). After a couple of months, the legal manager of the land discovers the four families and attempts to remove them. The families refuse to leave and the manager brings a claim against them. In Russia the success of the claim for ejection of the squatter depends upon the ability of the claimant to prove his title to the property. Since the introduction of the registration of titles system in 1999 the registration in the United State Register of Immovable Property can provide sufficient evidence for vindication. The legal manager of the land can be the owner of the land plot under development or be in contract relationships with the landowner (i.e. lease for construction). Both titles should be registered and both could provide for efficient vindication. If the title emerged before 1999 and was not registered, then other evidence would be required and that could make it difficult for the claimant to succeed. If, supposedly, the manager stays with the owner of land in contractual relationship that entitles him to possession (legal possessor), then he owns a good title to the land (that, however, should be registered). The defendants, in abstract terms, can advance in their defence the exception of good title or of good faith. Both possibilities are, however, excluded considering the properties of the case. The squatters have no legal exceptions against the vindication claim of the owner or legal possessor of the land. There exist no specific provisions in the Russian law for protection of the single house from eviction. After the ejection, John, Orri, Sekela and Satoshi can apply to the municipal powers for a temporary housing.

2.1.1

Claimant and Defendant

Russian law does not recognize any protection for the squatters. According to the Housing Code of the RF (Point 1 Article 35), the physical person that has no title for using the house is subject to ejection upon judicial decision. The law establishes, thus, the requirement of the judicial decision and the requirement of good title in the claimant. The claimant should be the owner (Article 301 Russian Civil Code) or legal possessor, i.e. a person in contractual relationship with the owner that entitles him to possession (Article 305). The claim for ejection from the house is consistently

Property Meeting the Challenge of the Commons in Russia

311

understood by the current court practice as vindication claim. 20 The claimant by vindication demands to restore the possession to him from the unauthorized (“illegal”) possessor. The vindication claim cannot be brought against the authorized possessor (“legal possessor”), as the latter is himself entitled to possession and defeats the owner or other legal possessor whose title is more recent. The vindication claim is a petition claim. The owner claiming for vindication should prove his right of ownership in the house. The legal possessor should prove that his title derives from the owner on legal grounds, e.g. contract of lease. The Russian law at present does not recognize possessory means of protection that could have provided the restoration of possession to the precedent possessor without any proof of title.

2.1.2

Prescription of Action

The Russian Civil Code (Article 200) applies to the vindication claim’s general term of the prescription of action in 3 years. The prescription term runs from the moment when the owner has known or should have known about the occupation of the house and could have identified the defendant, but not over 10 years from the moment of the violation of his right. In the case under analysis the prescription of action has not expired and cannot be opposed to the claim by the defendants.

2.1.2.1

Constitutional Right to Housing and the Claim on Ejectment from the Single House

The Constitution of the Russian Federation (Article 40) guarantees to everyone the right to housing. Consistent with this norm, Article 446 of the Russian Civil Procedure Code establishes the exemption from the levy regarding the single house of the debtor. A single house can be seized and sold, only if the debtor himself has mortgaged it. The exemption from the levy is applied to the debtor’s property. That means that the execution of the judgement on vindication, when the property is taken from the defendant non-owner, does not meet any constitutional limits. Unlike the protection of the debtor from the levy, the possessor who has no title to the house will be evicted from it without mercy, notwithstanding that it could be his last hope for housing. The constitutional principle of the inviolability of private property defeats the constitutional right to housing. 21

20 An Overview of the judicial practice established in the cases connected with the ejectment of the citizens from the residential premises on the claims filed by the public bodies and the local powers, issued by the Presidium of the Supreme Court of the Russian Federation on November 25, 2015. 21 In its Statement of 8 June 2010 No. 13-P the RF Constitutional Court indicated that “the implementation of the right to housing [. . .] means that the legal regulation of relations of

312

2.1.3

M. Erokhova and D. Dozhdev

Ejectment of Children

Dealing with the claim aimed at the ejection of minor children the court should attract to the procedure a representative of the municipal guardianship body (Article 46 Civil Procedure Code of the RF). The appearance of the guardianship body at the court has a scope to assure that the children ejected from the house would get temporary housing from the municipality in conformity with the Article 95 of the Housing Code of the RF. However, the current judicial practice 22 in Russia on ejection from houses evidences that entire families are ejected without receiving any alternative housing from the municipalities. 23

2.1.4

Compensation for the Inseparable Improvements

The Russian Civil Code (Article 303) imposes on the owner duty to compensate the good faith possessor for the inseparable improvements of the property. The possessor is considered in good faith when he did not know nor should have known that the property belonged to another (Article 302). The squatters were aware that the home was alien property, and thus have no right to compensation for the inseparable improvements. The possessor not in good faith (mala fide) is compensated for the necessary expenses only and for the period only when the owner could gain profits from the property (Article 303). Painting the walls and arranging the garden will not be regarded necessary expenses. The ubi commoda, ibi incommoda principle would not be in favour of the squatters as well. John, Orri, Sekela and Satoshi will not be obliged to compensate the owner for their living, as the home was not officially recognized as a residence and the owner was not authorized to let it. Neither from that point would any compensation be due to them.

possession, use and disposal of residential premises should provide for everyone an adequate judicial protection of this constitutional right.” 22 For the following see: https://zakon.ru/discussion/2015/09/29/vyselenie_nesovershennoletnego_ rebyonka#comment_214357. 23 Ruling of the Yaroslavlj regional appellate court of March 29, 2012 N. 33-1552 and of June 23, 2012 on the case N. 33-3769/2012; Ruling of the Rostov regional appellate court of June 25, 2012 on the case N. 33-7194; Ruling of the Tomsk regional appellate court of July 10, 2012 on the case N. 33-1738/2012; Ruling of the High Court of the Chuvashia Republic of July 4, 2012 on the case N. 33-2109/2012; Ruling of the High Court of the Tatarstan Republic of July 19, 2012 on the case N. 33-6168/2012; Ruling of the Samara regional appellate court of August 30, 2012 on the case N. 33-7403/2012; Ruling of the High Court of the Comi Republic of August 23, 2012 on the case N. 33-3558АП/2012; Ruling of the Moscow city appellate court of July 20, 2012 on the case N. 11-12044.

Property Meeting the Challenge of the Commons in Russia

2.1.5

313

What Do Families Without Housing Do?

People without housing can apply to the municipality for housing under the social contract of hiring. Such demands outnumber the municipal facilities, so the municipalities organize a queue and satisfy the demands periodically on the emergence of social housing. In the big and attractive cities, the queue is long; it is much easier to get municipal housing in the regions with harsh living conditions or severe climate.

2.1.6

How Do Municipalities Create Social Housing?

The municipal housing stock is formed by the dwellings that fall into the municipal property as abandoned and deprived of owner or as vacant due to lack of heirs (Articles 225 and 1151 of the Civil Code) and by the residential places erected by the municipality itself. The municipality produces housing on agreements with developers. The municipality puts in the land plot for development, while the developer undertakes the obligation to build a home and to transfer it into municipal property. Usually the developer retains some spaces in the new buildings in his own property. The price of the contract depends on the proportion of homes resulting in the hands of the parties.

2.2

Health Care

Together with other people from her neighborhood, Emanuela has organized a volunteer non-profit medical clinic in what appeared to be an abandoned building offering free services to irregular migrants who have no health insurance. Soon after, Syntech Corporation, the owner of the building, realizing that the market value of the building has increased since they acquired it, decides to sell it at a profit. Syntech would like Emanuela and her volunteers out of the building within a few days in order to sell it, and initiates an eviction action. Many people in the area are upset by this news. Emanuela defends. The building occupied by Emanuela and her medical clinic belongs to the Syntech Corporation. The owner tolerated during some time that the building was occupied, but then demanded the occupants vacate the premises. The law is no doubt on the side of the owner. Advocating for Emanuela, one can look for a contractual relation between her and the owner that could have emerged tacitly from the fact that the owner tolerated her presence in the building. In this case, Emanuela could demand to qualify the claim as contractual and could insist on some additional period before leaving (one additional month in the case of gratuitous loan for use). The fact that the non-profit clinic provided free medical services for irregular immigrants will not be considered by the Russian court as a sound ground to deny the vindication claim of the owner.

314

M. Erokhova and D. Dozhdev

On the admission of the tacit contract of gratuitous use (commodatum) between the owner and Emanuela the position of the occupant improves. Though each party to the contract can terminate it at any time, the other party should be informed one month in advance (Article 699 Russian Civile Code). Emanuela will be able to use this month to find other place for her clinic. The thesis of contractual relationship between Emanuela and the owner, however, raises serious doubts since she occupied the building as vacant and conducted no negotiations with the owner. The fact that the owner tolerated her presence in the building does not by itself evidence his tacit recognition of any title in Emanuela. The claim of the owner is better qualified as vindication. The only valid reply on vindication is that of bona fide purchaser for value (Article 302 Russian Civil Code). The position (and respective exception) of the good faith purchaser for value requires the tradition of possession (conveyance in the case of immovable) based on a good title, which is not implied in this case. There is no good faith in Emanuela either. She knew that the building did not belong to her and she lacked legal title relevant for acquisitive prescription. Никак не может, если не выкупит. If the title of the owner is registered, the good faith of the defendant could follow from reliance on the public register only (Article 8.1 (6) Russian Civil Code), and that is not the case. The Russian court will satisfy the owner’s claim and rule to restore the premises to the owner. The non-profit medical clinic that provides medical services for people without insurance undertakes a relevant public function and deserves support of the society and the public powers. Emanuela can apply to the municipality and demand gratuitous use of a vacant premise for her clinic. There is no legal device to impel the municipality to satisfy such demand, but it could work out, since the municipality is naturally inclined to improve health care in the region. Still, the most perspective way for Emanuela is that of philanthropic support from private persons or charities that could provide her the means to rent premises for her clinic. The fact that the building is not used by the owner does not imply that it could be occupied even for charitable purposes.

2.3

Food

Marta, Mattias, and Madison, together with their families and neighbours, cultivate a communal garden on a vacant plot of land as a food source. Max Corporation, the owner of the plot of land, discovers the three families and tells them to leave. Max Corporation brings a claim against the three families for their removal and the removal of the food grown by the families on its land. The land plot is vacant and it can be reasonably supposed that Marta, Mattias and Madison did not gravely impair the land by cultivation (e.g. damaged or completely removed the decorative grass). The claim of the owner is not aimed at compensation for harm incurred, but to put an end to the intrusion and trouble. The unauthorized use in this case, supposedly, is not connected with the violation of possession, and

Property Meeting the Challenge of the Commons in Russia

315

the claim of the owner should be qualified as a negation claim (actio negatoria). The Russian court will issue a judgement in favour of the owner and will oblige the intruders to leave the land plot. As for the crops, the owner obviously does not regard them as valuable, but as foreign objects that should be removed from his land. In this perspective, the ruling of the court to clear the land plot would consequently imply a permission to take the foods for Marta, Mattias and Madison and to keep it for themselves and their families. The land plot has obviously no fences, but could be easily distinguished from the surface and surrounding landscape. Legally it has defined borders and is registered in the public register. The intruders supposedly do not pretend to occupy the land plot (and expulse the owner from his possession), but just effectuate use of the alien property without authorization. Unlike the vindication claim, when the owner deprived of possession demands his property back, the claim of the owner in this case will be qualified as a negation claim brought by the owner in possession to put an end to troubles and unauthorized intrusion (Article 304 Russian Civil Code). The claim does not lead to the compensation, but the ruling issued by the court directly imposes on the defendant a duty to leave and not to intrude in future. No one can use another’s property without the will of the owner. The future of the foods grown on the other’s land plot is determined by the principle that all products of the land belong to the owner. The Russian Civil Code develops the principle in respect to those who use the property with legal title. Article 136 states that the fruits, production, and incomes belong to the person that uses the property based on a legally relevant ground. This circle includes the owner and everyone who has got access to the property on agreement with the owner. The agreement with the owner actually constitutes the legal ground for the use of the property and confers to the user some legal title (lease, gratuitous use, fiduciary management, etc.). This general principle is concretized for the products of land by the Land Code of the RF (Part 2 Article 40). It states that the seeds, plants, and all agricultural production, as well as the income from its realization, belong to the owner of a land plot. The court may state in the judgement that the food is part of the owner’s property and, in the case the crops have been consumed by the families, award respective compensation to the owner, following the logic of unjust enrichment deriving from the unauthorized use of the property of another. In our case, the owner demands that the crops should be taken away from the land plot. That means that the owner does not regard the food grown in his land as object of his property, but treats them as a foreign body contaminating the land plot. If the court takes this demand à la lettre, the families could profit from their self-made garden. Three families have seeded the alien land plot to get some food by their labour and skills. They put their need and penury before the proprietary interest of another member of the society. They use the land in its prior scope to serve as ground for life and living resources. Does private property overcome this prior scope of the land?

316

M. Erokhova and D. Dozhdev

To solve the case, the judge should follow the lines of reasoning established within the legal system. Being the prior value by itself, the law provides for the socially proved hierarchy of the interests. The categories of land in the Russian legal system are fixed and cannot be changed by discretion of private persons. If the land used by the families belongs to the category of agricultural lands, the garden arbitrarily put into it would damage the integrity of the established agricultural process. If the land belongs to the industrial land, the products of the garden could be harmful for the health of consumers. It could happen that the garden is made within another inappropriate context, i.e. in a cemetery or railroad zone. Innocent enterprise violating the legally organized use of the land could produce unacceptable malicious results affecting the food production or other points of common interest.

2.4

Water (Rural)

Maya, Malik, and Mei depend on the water of Flumia, a nearby river. The three villagers together with other villagers in the area build aqueducts and an irrigation canal from the river to their respective homes and fields. After a few years, a private corporation diverts the water of the Flumia River. Soon after, Maya, Malik, and Mei realize that water no longer flows to the aqueducts and irrigation canal from the river. Maya, Malik and Mei sue. The corporation has changed the course of the river that was a source of water supply for the village, thereby affecting the irrigation system. Do the villagers have any protection by the Russian law? The water objects in Russia are reserved for common use and cannot belong to private property (Article 6 Water Code of the RF). To erect an aqueduct and arrange the irrigation system is possible only on the permission of the public powers (Article 11). One of the paramount conditions of the permission for works connected with the water object is the preservation of its natural state (Article 42). If the works connected with the water object are conducted without permission, the Russian court would regard the result as unauthorized construction and apply the relative rules ruling to demolish them at the expense of the wrongdoer. 24 It could be supposed that the villagers did not have any permission for the erection of the aqueducts, while the corporation did, or vice versa: the villagers did, but the corporation did not. The solution of the dispute depends on the authorization for the works obtained from the public powers. Let us analyse all possible situations.

24

An example gives the judgement of Mineralovodsk city court in Stavropol region of September 20, 2013 on the claim of the public prosecutor to the private person demanding to demolish a dam; the judgement of Malojaroslavl regional court in Kaluga region of April 19, 2012 on the claim of the public prosecutor to the private persons demanding to demolish a construction built within the water protection zone.

Property Meeting the Challenge of the Commons in Russia

2.4.1

317

Situation 1. Both the Villagers and the Corporation Have Permission for the Works

Such situation can arise when the municipality first issued a permit for the erection of the aqueduct to the villagers, and then authorized the corporation for works leading to the change of the course of the river. Both the villagers and the corporation acted legally, but these acts resulted in the lack of water in the irrigation system. The public body issued the permission for the works in the river ignoring the interests of people living near the river and their depending on the water resources. Whatever reason underlies the act of the public body, such act will be qualified as tort by the court and the victims will be entitled to full compensation (Article 1069 Civil Code of the RF). The claim will be filed against the treasury of the Subject of the Federation. The villagers should provide evidence that the change of the course of the river caused damages to them (for instance, that they had to irrigate their lands from other sources and incur expenses for drilling new wells or building new water-supply system) and for other connected works.

2.4.2

Situation 2. Neither the Villagers nor the Corporation Have Permission for the Works

In this case, the villagers will have no damages, as they are themselves unauthorized developers. The reason for the denial of the claim for damages to the villagers lies in the fact that the harm for the villagers resulting from the lack of water supply is caused not only by the unauthorized works conducted by the corporation but also by the wrongdoing by the villagers themselves, who erected the aqueduct and built the irrigation canals without official permission. Russian law does not compensate for the harm caused by the acts of the victim (Article 1083 Civil Code of the RF). The unauthorized works conducted by the corporation can be put in question by the villagers or by the public prosecutor acting in common interest (Article 45 Civil Procedure Code of the RF). They can demand to demolish the unauthorized construction and to restore the previous course of the river (Article 222 Civil Code of the RF).

2.4.3

Situation 3. The Villagers Have Permission for Building of the Aqueduct, While the Corporation Was Not Authorized to Change the Course of the River

In this case, the villagers will have at their disposal all means of protection. They can sue for damages and demand to restore the course of the river in the previous state. Situation 4. The villagers lacked authorization for the irrigation system, while the corporation has permission to change the course of the river.

318

M. Erokhova and D. Dozhdev

In this case, the villagers will have no legal protection. As they had no right to arrange the irrigation system, from the legal point of view there is nothing to protect. Even the long use of the aqueduct will not help, for in the Russian law it cannot be legalized by prescription. The water objects in Russian law form that what properly could be labelled “commons”. The legal regime of these objects requires proper regulation and management in common interest. Legally, the water objects belong to the state and the public bodies are supposed to adopt public regulations to assure the scope of the special regime of the water objects. Private persons can produce any works connected to the water objects only on special permission from the public bodies. The one who acts without permission violates the law and remains without further legal protection. It could be deduced from that experience that the regulation of commons in the Russian law is subordinate to the following principle. An unauthorized intervention with any activities or works in the sphere of commons is sanctioned by the refusal in further legal protection from eventual harm.

2.5

Water (Urban)

Jose, Jasmine, and Horatio are three friends that inhabit an apartment together in a city, Flumiapolis. Following a large increase in the price of water (200% in one year), the three friends fail to pay their water bills. After failing to pay their third bill, the water management cuts off their access to the water supply. Jose, Jasmine and Horatio sue. The solution depends on the qualification of the action filed by the inhabitants. They could file alternatively two claims.

2.5.1

Claim 1. Jose, Jasmine, and Horatio Can Sue the Water Management to Compel It to Restore the Water Supply

First, one must assess whether the water managing body is entitled to cut the access of the consumers to water if the consumers delay the payment. In Russia, the issue is ruled by the Federal law “On water supply and water access” (2011). The relations between the consumer and the water manager are based on the contract that the water-supplying organization should conclude with any applicant on the same conditions. That is a public contract with typical conditions (Article 13). According to the contract, the water-supplying organization is obliged to supply water and the consumer is obliged to pay for the amount consumed. The consumer should install the water counter to gauge the amount of consumption of water. In the case of payment delay, the water-supplying organizations can cut off water supply if the consumer is indebted for two payment periods or more. The water can be cut off in one day. After the payment, the supply of water should be resumed at once.

Property Meeting the Challenge of the Commons in Russia

319

Practically, the cutting off of water in a block of flats means the plumbing of the tube and to resume the supply the plumb is taken off on the demand of the consumer. The cited rules mean that the claim of the consumers will be not satisfied without payment.

2.5.2

Claim 2. The Consumers Can Demand to Define the Reasonable Price for the Water

The Federal law “On water supply and water access” seems prima facie to establish the contractual model of the relations between the supplier and the consumer based on reciprocity and freedom of agreement. However, the same Law (Point 6.1. Article 12) lays down the principle of fixed charging of water supply on the base of state regulated fee for the water contracts. The Housing Code of RF (Part 2 Article 157) states that the fee for utility services is calculated according to the fixed charges established by the public bodies of the Subjects of the Federation. To put it clearly, it is the state (the Subject of the Russian Federation) who determines the price of water, and not the parties to the contract of water supply. The Federal Rates’ Office defines the maximum of fees for the utility services for the whole country, while the Subjects of the Federation fix the fees for the respective territory, but not exceeding the maximum established by the Federal Office. If the consumer finds the fee unreasonably high, it is possible to put in question the normative act establishing the high fee and to bring evidence that it is economically unsound. In the case when the fee is augmented 200%, the consumers have to find out if the fee has been increased for the whole region (the Subject of the Russian Federation). If the fee of the region remains the same (or has not increased so dramatically), they may pay according to the previously established volumes. If the fee of the Subject of the Federation exceeds the maximum fee of the Russian Federation, then the consumers can sue to nullify the act of the Subject of the Federation as contrary to the maximal fees established by the Federal law. Even if the Federal maximum exceeds the reasonable fee, the consumers can sue for nullification of the Federal normative act elevating the fees by providing evidence that the elevation lacks economically reasonable grounds.

2.5.3

Metalegal Analysis

In Russia, cutting off access to water became possible only recently, even for delay in payment. Previously, the water manager contracted with the organization managing the block of flats, not with the final consumer. The contracting with the manager of the block of flats implied that it is the manager who pays for water, not the final consumers who only paid the bills of the manager. If one of the consumers did not pay the fees, the manager just distributed the debt among all other inhabitants of the block of flats. The sums were not high and the people did not protest, though they were not happy with the practice. In the beginning of the 2000s, this practice ended,

320

M. Erokhova and D. Dozhdev

as the non-paying consumer actually enriched at the cost of those who paid. Water was not regarded as a common or communal resource, but came to be treated as an object of individual consumption and private contracting. The Subjects of the Federation can partially compensate citizens for the expenses for water supply directed to the water manager company, so that the people pay less than the fees advanced by the manager company. For example, in Moscow the manager company was fixing fees for 100% of the costs, but the Moscow Government undertook to pay 10% announcing to the people fees amounting to 90% of the actual costs of the water supply. This financial support from the regional powers respects the idea of commons, but actually results in a kind of social programme. The same is true for the formation of the price for water services that are outside of market regulation, notwithstanding the economic realities.

2.6

Nature

Hamid, Heba, and their two children used to spend many weekends walking and playing in one of the few green areas at the outskirts of the city where they live. The land belongs to a private owner who lives in a small house near the lake. Corporation C acquires the green area and converts it into a members-only country club. Hamid and Heba sue. A local environmental group also sues claiming access to what they consider a natural commons. In Russia, the solution of the conflict between the people used to walking in the park and the owner of the park who closed access to the people depends on the legal status of the park. The same applies to the lake: if it is natural or artificial (pond).

2.6.1

Access to the Park

The legal status of the park is subordinate to the Federal Law “On the specially protected natural areas” (1995). Article 18 of such Law admits that natural parks can belong to private persons, but the owner should admit everyone to the park. The status of natural park is given to the area on the decision of the executive organ of the Subject of the Federation (Article 19). If the park is private land, instead, then the owner can establish his own regime of access. The public body controls the commitment of the owner to the rules imposed on the use of the natural parks (Article 33). If the park (where the family used to walk freely) has a legal status of natural park, then non-admittance of people to walk in it actually violates the public regime, and the family can complain to the public body that effectuates control over the natural parks. The family can complain to the public prosecutor. The public powers should compel the owner to give access to the natural park to everyone and impose an administrative fee for the violation of the rules of use of the natural parks on the owner (Article 8.39 Code of the Administrative Wrongs of the RF).

Property Meeting the Challenge of the Commons in Russia

321

If the owner does not commit to the ruling, all the interested people and public bodies can submit the owner to the court, demanding free access to the natural park (Articles 45 and 46 Civil Procedural Code of the RF). As a consequence, the family will win all the claims against the owner who closes access to the natural park where the family used to walk and will get free access to the private property.

2.6.2

Access to the Lake

If the lake in the area is artificial pond, then the solution will be different. According to Point 2 Article 8 of the Water Code of the RF the pond situated within the borders of a land plot can be private property, and the owner will have no duty to allow any access to it for the strangers. If the lake is considered natural, then the solution is different. In Russia, the water object cannot belong to the private property and everyone can have access to it (Part 2 Article 6 Water Code of the RF). The family can demand access to the natural lake in court (Article 22 Land Code of the RF). The family can even demand establishment of the servitude of passage to the lake, and the public prosecutor should assist in the claim (Article 45 Civil Procedure Code of the RF). The very status of the natural park that imposes on the private owner the duty to give access to it to everyone and to not convert its social scope implies that the natural park is subordinate to the duties that constitute a proper kind of commons within the Russian legal system. The same is true for the public servitude of access to the water object present in the Russian law. In the case of private ownership of the artificial pond, the solution follows the principle of exclusion of the stranger.

2.7

Territory

Yellowriver is a small village sitting within a large and remote forest area. The government grants to Gold Masters Corporation permission to dig seeking for gold in order to develop a nearby mine. Aware of the high polluting risks of gold extraction to the nearby river, villagers erupt in protest and attempt to stop the project by legal means. Do they have any available action to protect the river— either as individuals or as an endangered community? The development of the subsoil in Russia is ruled by the Federal Law “On the Subsoil Resources” and by several sub-laws. Article 1.2 of the Law “On the Subsoil Resources” lays down that the subsoil resources within the borders of the Russian Federation are the property of the state. The subsoil resources can be searched and exploited on the grounds of the license issued by the Subject of the Russian Federation (Article 4). The license is issued on the grounds of several expert statements including the ecological impact of the intended exploitation (Article 20).

322

M. Erokhova and D. Dozhdev

The license can be put into question by an interested person, if he provides evidence that the exploitation of the subsoil resource would damage the environment. Legal protection of this kind is granted by the Federal Law “On the Protection of Environment” (2001) and by Article 1065 of the Russian Civil Code referring to the right to demand that the damage should be prevented (threat of harm). In the judicial practice of the Supreme Commercial Court, there is a related case: a corporation has a license for exploitation of the gold-bearing area on the condition it assures protection of the environment. The corporation did nothing. The license has been annulled. The corporation tried to prove that it did not afflict any damage to the environment. The Supreme Commercial Court, in its ruling, supported the act of the public body revoking the license and stated that the right to exploit the subsoil resources is subordinate to the conditions of the license. If the license stipulates protection of environment, the special measures are obligatory for the licensee. 25 It follows that the villagers can sue for the annulment of the license. They should provide evidence on the threat of harm from the gold extraction: that would be the expert’s testimony. As a result, the license for search and exploitation of gold would be cancelled. The villagers can sue individually. They can also join and apply as co-claimants (Article 40 Civil Procedure Code of the RF). They can demand for the public prosecutor to join in support of the claim (Article 45 Civil Procedure Code of the RF). Ecological safety refers directly to the idea of commons. The very possibility to sue for the annulment of the license for exploitation of subsoil resources on the basis these activities could harm the environment and health of the population induces the eventual investor to assure the ecological safety of his project. The investor can minimize risk by conducting a preliminary ecological impact assessment of the project.

2.8

Culture

State funding to a nonprofit local theater is cut in response to austerity measures; as a result the theater will be sold to a private company that wants to operate the theater at a profit. Evgenia, Misha, and Katia are actors, and along with other concerned citizens that protest the sale and other workers, they occupy the theater, and continue the theater’s programming for the public through a combination of volunteer work and donations. The municipality brings suit to evict against Evgenia, Misha, Katia, and the other actors. The Constitution of the RF (Article 44) guarantees that everyone can take part in cultural life and benefit from cultural bodies. This guarantee does not, however, imply that the municipality cannot sell the local theatre to a private person, who

25 Ruling of the Presidium of the Supreme Commercial Court of the Russian Federation of November 27, 2012 N. 9662/12.

Property Meeting the Challenge of the Commons in Russia

323

would run it on a commercial basis. The occupation of the theater exposes the actors to the vindication claim of the owner. The claim will be satisfied by the Russian court in the same way as in 2.1 above. Russian law does not give any room to deny the owner’s claim with reference to the cultural ends of the object. In Russia, disputes related to the theaters are typically the following. The director of the municipal theater, without any consent or approval from the municipality, leases premises for unreasonably low rent. The lessee puts into the premises restaurants and shops. The actors complain to the municipality or to the public prosecutor that the theater is functioning like a shopping center rather than a cultural enterprise. Then, the municipality or the public prosecutor act in the annulment of the leases as concluded by the director ultra vires. 26 In these cases, the constitutional right to access to culture and the protection of property successfully overcome the profitoriented interests. The actors can apply to the municipality asking for another building to arrange the non-profit theater. The legal grounds for such appeal could be found in Article 28 of the Foundations of the Legislation of the RF on Culture (1992) that proclaims the importance of culture and artistic creativity for the society and declares that the state and municipalities are obliged to support creative people in their activities. The law does not impose any sanction for this obligation: it is purely declaratory.

2.8.1

Variation: Assume That the Actors Obtain Permission to Stay and to Use the Theater Provided That They Run It as a Commons in the Interest of Culture and Future Generations. What Legal Form Should They Use to This Purpose?

In Russia, local theaters situated in municipal buildings function in the form of public institutions (a special kind of public legal entity). The property of the institutions belongs to the municipalities, while the institutions are entitled to the operative management (Article 123.21 Russian Civil Code). The regime of the operative management permits separation of property between the state (owner) and the public institution, so that the owner would be not liable for the obligations of the institution, while the property of the institution cannot by levied for the debts of the owner (Article 123.22). The owner (the state or the municipality) cannot evict the property from the institution or alienate it to another person (Point 2 Article 296 Russian Civil Code), but the very institution can be liquidated on the discretion of the owner. The legal title of the operative management does not guarantee to the theater the autonomous exercise of property rights and the very existence of the institution. A non-profit foundation fund seems a much more convenient legal form for the local theater. The foundation is defined by law as a non-profit body without

26

The case of the Electrotheatre Stanislavsky in Moscow (N. A40-104162/2014); the Ruling of the Appellate Court of the Volga-Viatsky region of March 22, 2013 N. A43-10452/2012; Ruling of the Appellate Court of the North-Western region of March 26, 2003 N. A56-27376/02.

324

M. Erokhova and D. Dozhdev

membership and created through accumulation of assets contributed by private persons and by organizations pursuing socially relevant scopes (Article 123.17 Russian Civil Code). The foundation becomes full owner of the property contributed to the foundation (Article 123.18). The foundation is headed by a collegial body; the powers of the body are defined in the charter of the foundation. The foundation cannot be reorganized (Article 123.17). The foundation can be liquidated only by court decision. In case of liquidation, the liquidated property should be directed for the purposes corresponding to the scopes of the liquidated foundation (Article 123.20). If the actors create a common foundation with the municipality, the latter could transfer to the foundation a building to locate the theater. The municipality would take part in the collegial body of the foundation together with representatives of the actors on a rate established by the charter.

2.9

Climate

Diletta, Flavio, and Antonella became aware of the reality of climate change when their school teacher decided to work on reading materials that were circulated at the time of the 2015 Paris Agreement on Climate Change. Although just turned 18 years old, all the three of them took the information quite seriously and started to worry about the gloomy expectations they learnt about: dangerous rise in the global temperature, water scarcity, droughts, forest fires, possible displacement of populations, etc. After the scandal involving the Popcar Corporation, concerning the manipulation of computer system for the control of emission in cars, Diletta, Flavio, and Antonella are struck by the quite feeble sanctions inflicted to the car manufacturer—not only in their jurisdiction. For this reason, Diletta, Flavio, and Antonella decide to take action in the interest of future generations. They sue their government and the global corporation Popcar. The solution depends upon the object of the claim. The facts presented indicate the claim is aimed at banning production of cars with defects in emission system and compensating for harm inflicted on the environment by the defective cars already produced. The Federal Law “On the Protection of the Environment” (Article 77) mentions such claim. The right of physical persons, organizations, and the public prosecutor to file a claim for protection of the environment is supposed by the Statement of the Plenary Session of the Supreme Court of the RF from October 18, 2012 N 21 “On the application by the courts of the legislation on liability for violation of law in the sphere of environment protection and the use of the nature” (Point 31). The Statement of the Supreme Court of the RF envisaged the right of citizens to file claims in protection of the environment independently from the fact of harm inflicted on their health or property (Point 33). This provision opens the way for any interested person to stand for protection of environment in abstracto. It would be better for Diletta, Flavio, and Antonella to attract the public prosecutor to

Property Meeting the Challenge of the Commons in Russia

325

participation in the legal process. The public prosecutor can give support to the claimants in collecting the evidence necessary for the claim, in particular by underwriting a part of the expenses for the ecological impact assessment. At present, Russian law does not regulate the collective actions of citizens. The Ministry of Justice of the RF prepared a draft law on amendments for the Civil Procedure Code of the RF regarding collective actions. The draft law establishes the minimal number of participants for collective actions at 20 persons. Even if Diletta, Flavio, and Antonella will not manage to gather the required number of participants, they can sue Popcar like co-claimants. The limitation of action for the compensation of harm inflicted on the environment is 20 years from the moment of the wrongdoing (Point 3 Article 78 Federal Law “On the Protection of the Environment”). The claimants should provide evidence that the emission of the given model of cars exceeds the standards of environmental impact (Articles 23 and 45). The evidence is given on the basis of ecological expertise. The amount of inflicted harm equals the expenses needed to restore the damaged environment. The measures to be taken to restore the environment are indicated in the ecological expert report, as this is the sphere of special knowledge. The judgement supporting the claim will enumerate the measures that the corporation should take to comply with the court decision. Alternatively, Diletta, Flavio, and Antonella can argue that Popcar be sentenced to penalty in favour of the Subject of the Federation, while the ecological public power care for rehabilitation of the environment. The judgement could ban further production of the given car model and demand additional expertise to ensure that ecological standards are strictly observed. If the claim and judgement are directed at measures to be undertaken for the rehabilitation of the environment, the control over execution of the judgement would be more difficult. The public prosecutor for ecological issues could take these measures under control. The ecological actions taken in the interests of future generations constitute a new sphere of disputes that invoke two principal concerns. (1) The claimant does not sue for compensation in his own favour, but for penalty to be paid to the public treasury and for the ruling of the court that would oblige the defendant to undertake a number of measures to restore the harm inflicted on the environment. In the latter case, it is difficult to control the execution of the ruling of the court. Alternatively, the penalty to the public treasury may comprise the expenses for the ecologically relevant measures that would be exercised by the public bodies specially dealing with ecological issues. (2) The national court could hardly be impartial when the issue in contention is the productive activity of the national corporation that forms a sound source of the state budget.

326

M. Erokhova and D. Dozhdev

Let us consider the following example. The Russian public corporation “Rosneftj” has announced the exploitation of oil fields situated off the Arctic Sea shelf. 27 At the same time, Greenpeace is of the opinion that oil production in the Arctic would cause melting of ice and climate change. 28 How can the plans of the corporation be blocked or even questioned in court? There can be no evidence before the exploration of the shelf starts. The forecasts of the scientists can cause serious concern among citizens, but will the Russian court be able to decide on the issue impartially? Supposedly, an international court would provide for more just and effective resolution of ecological disputes concerning all peoples living on our planet as well as future generations.

References Civil Code of the Russian Federation (2008) Part IV. Parallel Russian and English Texts (trans: Zhiltsov AN, Maggs PB). Walters Kluwer, Moscow Meyer DI (2003) Russkoye Grazhdanskoye Pravo [1902] (Russian Civil Law). Statut, Moscow Proekt Grazhdanskogo Ulozheniya Rossijskoy Imperii (Draft Civil Code of the Russian Empire) (1905) Senate, St.-Petersburg

27 28

https://www.rosneft.ru/business/Upstream/offshore/. http://www.greenpeace.org/russia/ru/news/2014/24-03-2014_No_Exxon_in_the_Arctic/.

Property Meeting the Challenge of the Commons in Slovakia Matej Mlkvý

Abstract Under Slovak law, closest to the notion of commons are special categories of things that can only be under public ownership or the use of which is reserved to the public. Only the State can own mineral resources, caves, underground water, natural springs, and water currents. In addition, certain categories of things are destined for public use, such as public roads, forest roads, sidewalks, public parking spaces, and museums. Legal doctrine has also recognized things common to all such as flowing rainwater, air, and sea. Special rights of use were more prominent in the Socialist law before 1989, which aimed at limiting private ownership in favor of State or collective forms of ownership. All these measures (with the exception of the right to access forests) were abolished after 1989 as incompatible with the notion of protection of private ownership. If the decision of the government to privatize the commons were contrary to law, any member of the public could file a complaint alleging breach of law with the public prosecution service. The government would have to nationalize the commons legally through expropriation of property from the current owner if the current owner did not decide to transfer her ownership title voluntarily. Private property is considered one of the core fundamental rights in the Slovak legal system.

M. Mlkvý (✉) Comenius University, Bratislava, Slovakia e-mail: matej.mlkvy@flaw.uniba.sk © The Author(s), under exclusive license to Springer Nature Switzerland AG 2023 U. Mattei et al. (eds.), Property Meeting the Challenge of the Commons, Ius Comparatum - Global Studies in Comparative Law 59, https://doi.org/10.1007/978-3-031-25218-1_10

327

328

M. Mlkvý

1 Questionnaire: Part I 1.1

What Legal Categories in Your Legal System May More Closely Correspond to the Notion of the Commons as Deployed in the Introduction?

Under Slovak law, closest to the notion of commons are special categories of things in the legal sense (i.e. land and chattels) that can only be under public ownership or the use of which is reserved to the public at large. Closely associated are certain statutory bestowing rights of use to land belonging to another person. Under Slovak law, certain categories of immovables can only be under public ownership. Under Article 4(1) of the Slovak Constitution, only the state can own mineral resources, caves, underground water, natural (medicinal) springs, and water currents. Apart from this, legal doctrine has recognized that certain categories of things are destined for public use (res publico usu destinatae) such as public roads, forest roads, sidewalks, public parking spaces, and museums. Legal doctrine has also recognized things common to all (res communes omnium) such as flowing rainwater, air, and sea. With regards to limitations of ownership rights to land, the most important exception is the right of the public to enter forests (i.e. land designated in the land cadaster as forest land) at own danger and liability (Section 30(1) of Act No. 326/2005 Coll. on Forests). Other than that, entry onto land in private ownership is only permitted if there is an immediate threat of violation of a person’s right (Section 6 of Civil Code), if it is necessary for the maintenance or cultivation of neighbouring land or buildings (Section 127(3) of Civil Code), in state of emergency or compelling public interest if the aim cannot be achieved by other means (Section 128(1) of the Civil Code), and when a person is entering land for the purpose of preventing the occurrence of harm under the general duty of prevention (Section 417 of Civil Code; general duty of prevention is codified in Section 415).

1.2

Is There Today or Was There in the Past a Concept of the Commons in your Legal System? In the Affirmative, Is it Statutory, Jurisprudential, Doctrinal or Customary?

There is no legal institution that would wholly encompass the concept of commons. As stated above, under Slovak law the nearest to the notion of commons is the separate legal regime of certain categories of things (in the legal sense) and special rights of use (mainly granting access to forests). Special rights of use were more prominent in the Socialist law before 1989, which aimed at limiting private ownership in favor of state or collective forms of ownership. During Socialism, although private ownership to apartment buildings was possible, the private owner was

Property Meeting the Challenge of the Commons in Slovakia

329

severely limited in her rights of use and disposition. The owner had, for example, only the right to use a single flat within her own apartment building, and only if she actually resided there; otherwise, she as owner had no legal right to compel any of the tenants to leave the apartment building. Transfer of ownership of the apartment building was only possible with the consent of the local state authority, and if rental income exceeded 3000,- Czechoslovak crowns, the owner could not dispose of them freely. The local state authority could even—without consent of the owner—carry out repairs on the apartment building at the expense of the owner. In the countryside, local Socialist farmer cooperatives could be granted the right of use of arable land in private ownership by the local state authority if the land was not effectively used for agriculture without any remuneration to the owner. A restricted legal regime as to the disposition with land also applied to land plots designated for future construction. All these measures (with the exception of the right to access forests) were legislatively abolished after 1989 as incompatible with the notion of protection of private ownership.

1.3

Is the Commons Today a Topic of Academic Debate in your Legal System—And in the Affirmative in What Context?

The question of commons is marginal in the contemporary academic debate in Slovakia. From the sociological viewpoint, based on data from Eurostat nearly 90% of inhabitants of Slovakia live in houses or apartments they own. Only 1.5% of inhabitants live in flats with regulated leases and 8.5% in flats with commercial lease. 1 As is apparent from these statistics, inhabitants in Slovakia are inclined to obtain ownership of the house or apartment they live in, and they are considerably less likely to seek rent accommodation as a long-term solution of their housing situation. Nevertheless, the ratio of inhabitants/number of houses or apartments in Slovakia is higher when compared to other EU member states (indicating shortage in housing), so the discussion now is starting to focus more on facilitating the construction of municipal or state apartments for lease (i.e. possibility of adopting a new Building Construction Act). Apart from this, in 2013–2014 the government proposed amendments to Act No. 326/2005 Coll. on Forests that would have limited free public access to forest land. After considerable public outcry this proposed amendment was dropped and the old legal regime (right of the public to enter forests at own danger and liability under Section 30(1) of the Act) was maintained. A more pressing problem is the illegal construction of houses predominantly in the countryside by members of the impoverished Roma community, who regularly construct houses on land they have no legal claim to. The perseverance of such illegal housing in practice is due to 1

See, eg, “Rental Housing Is Scarce: There Are Several Ways to Change That” (2019).

330

M. Mlkvý

several factors, mainly because under Slovak law ownership of buildings and of the land on which the building is constructed can be permanently separated in time (and the right to demolish a building has to be obtained from the court); another factor is considerable fragmentation of land ownership among a large number of co-owners, making the costs of proceedings to demolish illegal buildings in practice prohibitive to them. This cannot, however, be a permanent solution to the impoverished Roma housing and numerous municipalities and NGOs focus on addressing these problems. The issues raised are nevertheless more of a social than legal nature.

1.4

Is There Any Kind of Public Property in Your Legal System That Is Absolutely Not Alienable?

Under Article 4(1) of the Slovak Constitution, only the state can own mineral resources, caves, underground water, natural (medicinal) springs, and water currents. These categories of things cannot be under private ownership and therefore are inalienable by the state. Other things under public ownership can be transferred under statutorily prescribed conditions.

1.5

Are There Remedies in Your Legal System for Someone to Challenge in Court a Government that Decided Privatization of the Commons?

Under Slovak law, it is crucial for the plaintiff to be able to demonstrate in her lawsuit that her rights or legally protected interests were violated or are in danger of violation. No natural or legal person can successfully raise a claim if she is unable to demonstrate a direct negative impact upon her right or legally protected interest. If the decision of the government to privatize the commons were contrary to law, any member of the public could file a complaint alleging breach of law with the public prosecution service, which under the Slovak Constitution and statutes is an independent protector of legality. If the public prosecution determines that the decision to privatize the commons were contrary to law, it has the power to sue the appropriate public body in a court of law. In the absence of violation of private interest action can be brought only by the public prosecution and not by a private individual, who can only file a complaint with the prosecution. Although the prosecution has a statutorily prescribed duty to act in case it determines that law is violated, in practice the prosecution has relatively broad discretionary powers.

Property Meeting the Challenge of the Commons in Slovakia

1.6

331

Are There Remedies in Your Legal System for Someone to Challenge in Court a Government that Decided Nationalization of the Commons?

The government would have to nationalize the commons legally through expropriation of property from the current owner if the current owner did not decide to transfer her ownership title voluntarily. Under Article 20(4) of the Constitution, expropriation or forced limitation of ownership right is possible only in the necessary extent and in public interest, under statute and for adequate compensation. These conditions and the procedure itself are further regulated in Act No. 282/2015 Coll. on Expropriation of Land and Buildings and on Forced Limitation of Ownership Right to Them. If the expropriation were contrary to law, a private individual whose interests were not adversely affected by the expropriation has only the option to file a complaint with the public prosecution service, which is inter alia also tasked with monitoring the legality of procedures of state and municipal administrative bodies. There is no duty on the prosecution—who has broad discretion—to challenge the validity of the administrative decision against which the claim was filed.

1.7

To What Extent Private Property Is Considered a Fundamental Right in Your Legal System, and What Other Constitutional Rights Could Defeat it in a Balancing Test?

Private property is considered one of the core fundamental rights in the Slovak legal system. It is protected by numerous safeguards, which is a reaction to the previous development during the Socialist era when private ownership was considered inferior to state ownership and ownership of Socialist enterprises. The main limitation of ownership is the possibility of expropriation. Under Article 20(4) of the Constitution, expropriation or forced limitation of ownership right is possible only in the necessary extent and in public interest, under statute and for adequate compensation. These conditions and the procedure itself are further regulated in Act No. 282/2015 Coll. on Expropriation of Land and Buildings and on Forced Limitation of Ownership Right to Them, which provides that expropriation is only available if the aim cannot be achieved by agreement or similar means. Furthermore, the public interest has to serve an aim identified by a statute and the existence of such public interest always has to be demonstrated in the course of expropriation proceedings. It is therefore clear that the public interest is a relatively ambiguous term under Slovak law but nevertheless it must have a statutory basis if used to justify expropriation or forced limitation of ownership right. Apart from expropriation and forced limitation of ownership right (if outright expropriation is not necessary to reach the aim), each lease of apartments is

332

M. Mlkvý

considered protected under law (Section 685(1) of Civil Code). The protected nature of apartments manifests itself in several ways—landlord can only terminate lease of flats on statutorily defined grounds, each such termination is reviewable by a court of law upon application by the tenant, tenant has a right to an alternative accommodation (the quality of which is based on the ground of termination), and in certain cases the rent amount is regulated by statute. This is usually the case of leases of flats, which commenced during the Socialist era in apartment buildings owned by private individuals (or ownership of which reverted back to private individuals after 1989).

1.8

Private Property Is an Institution Aimed at Allowing Exclusion from Land. Is There Any Limit to Such a Power of the Owner to Exclude Justified by a Right of Access of the Private Non-Owner?

With regards to limitations of ownership rights to land, the most important exception is the right of the public to enter forests (i.e. land designated in the land cadaster as forest land) at own danger and liability (Section 30(1) of Act No. 326/2005 Coll. on Forests). Otherwise, entry onto land in private ownership is only permitted if there is an immediate threat of violation of a person’s right (Section 6 of Civil Code), if it is necessary for the maintenance or cultivation of neighbouring land or buildings (Section 127(3) of Civil Code), in state of emergency or compelling public interest if the aim cannot be achieved by other means (Section 128(1) of the Civil Code), and when a person is entering land for the purpose of preventing the occurrence of harm under the general duty of prevention (Section 417 of Civil Code; general duty of prevention is codified in Section 415). Apart from that, separate statutes grant certain rights of emergency access to land to utility providers if necessary.

2 Questionnaire: Part II 2.1

Housing

John, Orri, Sekela and Satoshi, desperate to find a home at an affordable cost, together with their families (including several children) inhabit homes in a development project, suspended due to delayed authorizations. The four friends and their families work on both the buildings and the land to enhance their living conditions (for instance, by painting the walls and adding a little garden). After a couple of months, the legal manager of the land discovers the four families and attempts to remove them. The families refuse to leave and the manager brings a claim against them.

Property Meeting the Challenge of the Commons in Slovakia

333

Slovak law, in accordance with Roman legal principles, differentiates between ownership and possession. Possession requires (like under Austrian and Roman law and unlike under the German law) both the physical element (corpore) and the mental element (animo). The mental element requires the possessor to dispose with the thing as hers, i.e. to behave like the owner towards the thing (Section 129 (1) of the Act No. 40/1964 Coll. Civil Code, hereinafter “Civil Code”). Prior to 1950, Czechoslovak civil law was not unitary—the Austrian Civil Code of 1811 (ABGB) applied in the Czech lands while Hungarian statutory and customary provisions created before 1918 were in force in Slovakia. In this period, possession has been differentiated as in Austria between lawful possession (rechtmäßiger Besitz, possessor is in possession with a valid legal title), honest possession (redlicher Besitz, possessor is bona fide that the thing is hers) and real possession (echter Besitz, possession obtained not by force, nor stealth, nor the license of the owner—nec vi, nec clam, nec precario). In 1950, during the Socialist era, the civil law was unified with the adoption of Act No. 141/1950 Coll. Civil Code. This Code has been replaced by Act No. 40/1964 Coll. Civil Code, which is still with substantial amendments in force in Slovakia (although not in the Czech Republic). Under both the Civil Code 1950 and 1964 the previous categories of possession known to the Austrian Civil Code have been abolished and new categories of just (oprávnená držba) and unjust possession (neoprávnená držba) were created. According to Section 130(1) of the Civil Code 1964, if the possessor is with regards to all circumstances in good faith that the thing or right belongs to her, she is a just possessor. Under established case law, the test is not subjective but objective— whether the possessor is in good faith with regards to all circumstances is to answer whether the possessor taking usual precautions that with regards to the circumstances and the nature of the case can be required from anyone was in the belief that the thing or right belongs to her. Such qualified good faith ceases to exist when the possessor acquires knowledge of such circumstances that must have objectively raised doubt whether the thing belongs lawfully to her. It will be legally irrelevant whether the possessor remained despite these circumstances subjectively in good faith or not. 2 In the present case, the four friends must be regarded under Slovak law as unjust possessors since objectively they could not be in good faith that the homes belong to them. They inhabited the homes without obtaining any legal title to them and Slovak law does not enable to acquire ownership by mere adverse possession without satisfying the requirements of prescription. Ignorance of law cannot establish good faith with regards to all circumstances. The situation might have been different if the friends could justify their possession on at least a putative title—prima facie legal title (such as contract of sale) that turns out to be invalid. Under such circumstances, a reasonable person in their position might think that she acquired ownership title to houses. However, this is not suggested by the question’s scenario. Since possession by John, Orri, Sekela, and Satoshi is unjust, they cannot acquire ownership of the

2

Spáčil (2005), p. 223.

334

M. Mlkvý

house through prescription since this requires inter alia apart from the lapse of prescriptive period (10 years with regards to immovables) also just possession. It must be clear from the aforementioned that the company remains the owner of the houses. The fact that houses are built on public land (it is suggested in the scenario that the company had some kind of a valid legal title to build on the public land) will not deprive the company of its ownership title to the houses. The Civil Code 1950 abolished the Roman law principle of superficio solo cedit requiring the owner of the land and things attached to the land including buildings to be in principle the same. At that time the objective of the legislator was to enable Socialist organizations to build on land without formally obtaining ownership title to it (since to a large extent private ownership of land was not abolished during the Socialist era in Czechoslovakia). This remains the valid law in Slovakia, although the Roman principle has been reintroduced in the Czech Republic by virtue of Section 506 of Act No. 89/2012 Coll. Czech Civil Code. In order to evict John, Orri, Sekela, and Satoshi, the company cannot use self-help (this is limited under Section 6 of the Civil Code to proportionate measures against the threat of an unlawful interference with right), since the friends have already interfered with the right of the company (i.e. it is not a novel interference). The company might be able to apply for possessory remedies under Section 5 of the Civil Code (enabling the municipal authority in case of clear interference with “peaceful condition” to order the restoration of the status that existed before such interference, functionally the same as protection of possession by interdicts under the Roman law). The main remedy, nevertheless, will be via judicial action. The company as the owner of the house can file an action under Section 126(1) of the Civil Code under which the owner has the right to be protected against those who unlawfully interfere with its ownership right; she can mainly claim the surrender of the thing from the person who unlawfully retains it. This section entails the two main Roman actions pertaining to the protection of ownership—rei vindicatio and actio negatoria. The burden of proof will rest on the company to prove that the house is in its ownership and that the house is occupied by the four friends (as defendants). John, Orri, Sekela, and Satoshi might be able to raise a human rights argument based on Article 31 of the revised European Social Charter (which Slovakia has ratified). Section 712 and 712a of the Civil Code provide that after the cessation of lease of an apartment the landlord has the duty to provide (under the majority of circumstances) substitute housing to the tenant and until such substitution is provided, the tenant is not obliged to vacate the premises. The courts have been willing to apply in some cases this section analogically to legal relationships existing outside of lease contracts based on Section 853 of the Civil Code (providing for the possibility of analogy in civil law) and Section 3(1) of the Civil Code, which provides that the exercise of rights stemming from legal relationships established by civil law cannot be contrary to “good morals.” Therefore, in order to decide in favour of the plaintiff suing for the eviction of defendants a court might condition its decision upon the plaintiff’s providing substitute housing to the defendants. In a majority of cases, the court will decide so if the defendants were inhabiting the apartment under the claim of right that has ceased to exist, or they derived their right

Property Meeting the Challenge of the Commons in Slovakia

335

to inhabit from a family relationship which ended (e.g. former spouse inhabiting the flat of the other spouse). This will also be applied in the case of family houses. 3 In the present case, John, Orri, Sekela, and Satoshi were inhabiting the house without any legal title from the beginning. In a similar case, the Supreme Court of the Czech Republic (this would be a significant persuasive authority in Slovakia) ruled that the courts cannot condition even by the use of analogy the eviction of defendants from premises who were using them without any legal title on the plaintiff providing substitute housing for them (Decision No. 22 Cdo 1737/1998). Therefore, the only reasonable option is for John, Orri, Sekela, and Satoshi to raise the objection that the company itself is acting against “good morals” (Section 39 of the Civil Code) when filing this action (akin to the doctrine of unconscionability in common law jurisdictions). However, whether to entertain such a motion would be discretionary upon the court, and courts tend to limit the use of this doctrine to exceptional circumstances. Here, John, Orri, Sekela, and Satoshi would carry a heavy evidentiary burden of proving that conditions of both parties to the suit are such that it would be contrary to good morals for the court to order the defendants to vacate the premises despite the defendants’ possessing no valid legal title to the homes. The fact that John, Orri, Sekela, and Satoshi made some improvements to the premises will (unlike the situation in some of the common law states) be of no significance when considering the ownership or right to possess the premises. Section 131(1) of the Civil Code provides that unjust possessor is obliged to surrender the thing to its owner together with all its fruits and benefits and pay damages that the owner has incurred as a result of unjust possession. Unjust possessor is authorised to deduct from the damages that are sought against her the expenses necessary to maintain and operate the thing albeit she is not permitted to bring separate action to recover them. This is also in line with Roman law, which permitted the possessor mala fidei to recover only the necessary expenses (impensae necessariae). Unjust possessor is permitted under Section 131(2) of the Civil Code to detach from the thing everything that improved the thing through the use of her funds if this is possible without impairing the substance of the thing (ius tollendi). Therefore, it would be necessary to consider whether the individual improvements to the house were necessary and if it is determined that they were not (or John, Orri, Sekela, and Satoshi decide to keep them) whether they can be detached from the house without damaging the house itself.

2.2

Health Care

Together with other people from her neighborhood, Emanuela has organized a volunteer non-profit medical clinic in what appeared to be an abandoned building offering free services to irregular migrants who have no health insurance. Soon

3

Fekete (2011), p. 641.

336

M. Mlkvý

after, Syntech Corporation, the owner of the building, realizing that the market value of the building has increased since they acquired it, decides to sell it at a profit. Syntech would like Emanuela and her volunteers out of the building within a few days in order to sell it, and initiates an eviction action. Many people in the area are upset by this news. Emanuela defends. Under Slovak law, the primary question is whether Emanuela has any right to use the building. Although her activities provide services to the broader community, this will not establish any legal right per se to use the building. It is suggested that the building has been abandoned before Emanuela opened the clinic within its premises. There has been some controversy whether it is possible to abandon an immovable under Slovak law. The majority of immovables in Slovakia are registered in the cadastre of immovables, which provides a comprehensive system of land registry. The cadastre ownership document describes in part A the immovable itself (e.g. plot or building number, type, area), in part B the owners of the immovable, and in part C any rights of third parties (servitudes, encumbrances, etc.) pertaining to the immovable. Since an immovable listed in the cadastre registers also its owners, Slovak law excludes the possibility to abandon an immovable. If the immovable is not listed in the cadastre, the majority opinion is, as well, that such immovable cannot be abandoned. The minority opinion states that such immovable may be abandoned because provision of Section 46(1) of the Civil Code requires written contract only when an immovable is being conveyed and as such does not apply to transfer of immovable by other means. 4 If the immovable is not legally abandoned, then the clinic or Emanuela could have acquired ownership to it without the consent of Syntech only through prescription. Originally the Civil Code of 1964 did not recognize prescription as a title of acquisition of ownership. Due to practical concerns, prescription was reintroduced by Act No. 131/1982 Coll., which amended the Civil Code reintroducing prescription from April 1, 1982. Article 134 of the Civil Code, apart from the more general conditions regarding the subject and object of prescription, requires an uninterrupted just possession through the prescriptive period (in case of immovables 10 years). Furthermore, good faith regarding all circumstances must exist through the whole prescriptive period (not just at the beginning of the period as was the case under Roman law). Since possession must be just, possessor has to be objectively in good faith that a (putative) legal title has conveyed ownership to her. Disregarding the question of the prescriptive period, Emanuela has no such putative legal title that could establish an objective good faith that she or the clinic is the owner of the building. In the absence of a putative legal title, Emanuela (or the clinic) remains an unjust possessor. Therefore, even under the presumption that the building is not registered in cadastre and siding with the minority opinion that an immovable can be abandoned, unjust possession cannot lead to acquisition of ownership through prescription. If the building is abandoned a question may arise whether it is not possible to

4

Fekete (2011), p. 755.

Property Meeting the Challenge of the Commons in Slovakia

337

acquire ownership through occupation of an abandoned thing. Although this would be perfectly possible under the Roman law, the Slovak Civil Code does not explicitly recognize occupation as a mode of acquiring ownership. Section 135 of the Civil Code provides that whoever finds a lost thing is obliged to surrender it to its owner. If the owner is unknown, the finder must surrender the thing to the appropriate state authorities. If within 1 year from the surrender of such thing to the state authorities the owner does not claim the thing, the state (not the finder) acquires ownership of the thing and the finder has a right to have her costs reimbursed and to receive a reward totalling 10% of the value of the thing. This is mutatis mutandis applied to hidden and lost things. The version of the Civil Code in force before substantial amendments to the Civil Code in 1991 departing from the Socialist law was even stricter since it wholly excluded the concept of res nullius. Section 453(2) of the Civil Code before the amendments of 1991 provided that the state automatically acquired ownership to all abandoned things regardless of their value. The wording of the section is a legacy of the Socialist origin of the Civil Code preferring collective forms of ownership (state ownership and ownership of socialist organizations) to private ones. The judicature has since recreated the concept of res nullius in case law, but this applies usually to newly created movables and wild animals. Even if the building was abandoned, Emanuela or the clinic could not acquire ownership as a result of occupation since the state would acquire it. The final question is whether Emanuela or the clinic could have acquired a separate right outside of ownership or right of possession with regards to the building. Since contractual obligations cannot be established without the consent of both parties (in this case also Syntech), the only possible rights to the building may be rights in rem pertaining to a thing of another (iura in re aliena). The Civil Code of 1950 amalgamated the classes of servitudes (Dienstbarkeiten, servitudes) and land charges (Reallasten, onera realia) known to the Austrian Civil Code of 1811 into a category of real burdens (vecné bremená). This was taken over by the Civil Code of 1964. Rights from real burdens (such as a right of use of a building) can also be acquired through prescription. The standard is objective as when ownership is acquired through prescription, i.e. good faith with regards to all circumstances. Since Emanuela does not have a putative title (and courts have ruled that a mere verbal assurance that such right exists not evidenced in a written contract is not sufficient to establish it), she will not prevail even on this claim. Emanuela would therefore not be able to mount successful defence to Syntech’s action to vacate the premises under Section 126(1) of the Civil Code. From a practical viewpoint, however, Syntech will probably not be able to evict Emanuela and the clinic within a few days, since self-help under Section 6 of the Civil Code is excluded (available only against threats, not against already perfected dispossessions). Syntech would therefore have to use possessory remedies provided by the municipal authorities or most likely file a court action under Section 126 (1) of the Civil Code as described in the answer to the previous question. Bearing in mind the standard length of these proceedings (usually 30–60 days before the municipal authority; proceedings before the court would probably take at least a year), Syntech

338

M. Mlkvý

will not probably be able to evict Emanuela and the clinic from the premises within a short period of time without their cooperation and would be forced to wait for the municipal authority or the court to reach a decision.

2.3

Food

Marta, Mattias, and Madison, together with their families and neighbors, cultivate a communal garden on a vacant plot of land as a food source. Max Corporation, the owner of the plot of land, discovers the three families and tells them to leave. Max Corporation brings a claim against the three families for their removal and the removal of the food grown by the families on its land. The result would be materially the same as in the answer to the previous question. Marta, Mattias, and Madison do not have any legal title to use the land and are therefore unjust possessors. The use of the land—whether providing health care community services or growing food—will be of no practical legal significance in determining whether possession is just or unjust. As described in the answer to the previous question, unjust possessors will not be able to defend themselves against action to recover the land under Section 126(1) of the Civil Code. They can, however, deduct necessary expenses needed to maintain and operate the land from the damages Max Corporation would claim from them based on their unjust possession. If Max Corporation would not claim damages (only the recovery of the land itself), then Marta, Mattias, and Madison cannot bring a separate action to have these expenses reimbursed. With regards to the food grown, Section 131(2) of the Civil Code enables Marta, Mattias, and Madison when vacating the land (even as unjust possessors) to detach from the land the food they have planted (vegetables, fruit, etc.) since this will not impair the land itself.

2.4

Water (Rural)

Maya, Malik, and Mei depend on the water of Flumia, a nearby river. The three villagers together with other villagers in the area build aqueducts and an irrigation canal from the river to their respective homes and fields. After a few years, a private corporation diverts the water of the Flumia River. Soon after, Maya, Malik, and Mei realize that water no longer flows to the aqueducts and irrigation canal from the river. Maya, Malik and Mei sue. The use of water in the Slovak Republic is regulated by Act No. 364/2004 Coll. Water Act. Pursuant to Section 18(1) of the Water Act, everyone is entitled at her own risk and without permission of state water management authority to collect or in other manner use ground or underground water in order to satisfy the personal needs of households if such collection or other use of water is undertaken in an appropriate place, using simple water constructions, and in a way that will not limit or prevent

Property Meeting the Challenge of the Commons in Slovakia

339

the same use by other persons (“general use of water”). Simple water constructions are defined by the same statute mainly as wells from which water is extracted manually, technical constructions that collect water from flowing currents (limited to those whose current is less than 10 l/min), excavations built in order to collect rain water, and movable containers used to collect ground or underground water. The use of water cannot threaten or decrease the quality or medical fitness of the water itself, damage the environment or natural heritage, impair the natural flow of water, damage the riverbanks and lake coasts, water structures and constructions, as well as structures used for fisheries. The general use without permission cannot serve business purposes. Even such general use can be limited, modified, or prohibited by state authorities if this is necessary to protect the health and security of persons, for protection of water structures and constructions, protection of fishery, protection of nature and countryside, and if it is necessary to secure the functions of water currents and conservation of its ecosystem. If a person wants to use water in a manner that cannot be classified as general use of water, she has to seek permission from the state water management authority. The state authority, when granting permission, is obliged inter alia to consider the minimum level of flow in reference to flowing ground waters and minimum level of water in reference to underground water. When Maya, Malik, and Mei constructed aqueduct and irrigation canals, they should have obtained prior permission from the state authority since these structures cannot be classified as simple water structures within the meaning of the Water Act. If they have been granted the permission, they have the right to use the water in accordance with the conditions set in the administrative decision. The authority in the course of issuing the permission has specifically to take into account the flow volume that still enables the general use of above ground waters, secures the functions of the water flow, and preserves the aquatic ecosystems in it (Section 27 (1) of the Water Act). The overall impact of the water structure on surface and underground waters (as well as upon fisheries and protection of the environment) has to be also assessed. If more than one person has the intention to undertake construction of a water structure at the same locality, the authority has the right to condition the issuance of permission on agreement of all the interested parties regulating the joint construction and operation of the structure (Section 25(6) of Water Act). Like Maya, Malik, and Mei, the private corporation was in need to obtain permission from the state authority to redirect the flow. Given the statutorily prescribed criteria that the issuing authority has to take into account, it is unlikely that the authority would grant the private company permission to redirect completely the flow of water. Any water structure has to enable the general use of above ground water, what would not be the case here. If the company did this without permission, Maya, Melik, and Mei would be able to file a complaint with the state authority seeking issuance of an order for the removal of illegal water structures and restoration of the previous flow. Furthermore, if Maya, Melik, and Mei suffered damage as a result of the illegal activity of the company, they would be able to sue the company for damages (Section 420 of the Civil Code). As with any other type of claim for recovery, Maya, Melik, and Mei as the plaintiffs would have to prove the wrongful

340

M. Mlkvý

act of the company (i.e. its illegality), intent or negligence on the part of company as the defendant, the occurrence of damage, and causation between the wrongful act and the damage suffered.

2.5

Water (Urban)

Jose, Jasmine, and Horatio are three friends that inhabit an apartment together in a city, Flumiapolis. Following a large increase in the price of water (200% in one year), the three friends fail to pay their water bills. After failing to pay the third bill, the water management cuts off their access to the water supply. Jose, Jasmine and Horatio sue. The Public Water Pipelines and Public Canalization Act No. 442/2002 Coll. regulates the supply of water. As a general rule, the operator of a public water pipeline is obliged to supply water to customers and to enable customers to access the pipeline system provided that the customers have met the technical conditions set by the statute. Section 28(3) and (9) provide that the operator is entitled to charge water fees for the delivered drinkable water, which is calculated as multiplication of the price for one cubic meter of produced and delivered drinkable water through the public pipeline water system (as set by special statutes and bylaws) and the volume of water actually taken from the pipeline. The price of water is regulated by a special state authority (Úrad pre reguláciu sieťových odvetví, Network Industries Regulation Authority). General principles of price regulation are set in the Network Industries Regulation Act No. 250/2012 Coll. Section 12 (3) of the Network Industries Regulation Act provides that price regulation should take into account economically justified costs, economic efficiency, and appropriate profit (including the amount of investment that can be calculated into the price or economically justified costs and appropriate profit that was calculated into price as approved or set by the Network Industries Regulation Authority). When calculating the amount of appropriate profit, the authority has to take into account inter alia economically justified costs with reference to quality, consumer protection, as well as investments needed to provide for long-term sustainability of the distribution network. This authority will issue a special decision in a separate administrative proceeding that will set the maximum price of water fee that the operator of public pipeline can charge to the customers. The operator of public pipeline can stop or limit the supply of water through the public water pipeline system only in specified circumstances. These circumstances are set in Section 32(1) of the Public Water Pipelines and Public Canalization Act. Section 32(1)(m) provides that the operator is authorized to stop or limit the supply of water through the water pipeline system if the customer did not pay the water and sewer fee in the period of 30 days after the due date. Section 32(2) provides that the customer has to be warned of such action beforehand. Section 32(3) provides that the operator does not have to provide alternative supply of water to such customer.

Property Meeting the Challenge of the Commons in Slovakia

341

In the case of Jose, Jasmine, and Horatio, the water management company was authorized to raise the water fee only if the fee was approved by the Network Industries Regulation Authority. If such water fee was approved by the authority, Jose, Jasmine, and Horatio were warned by the water management of due payment of the water fee before the actual termination of supply of water and Jose, Jasmine, and Horatio were in delay with the payment of water or sewer fee for more than 30 days after the due date, then the water management was entitled to terminate the water supply and Jose, Jasmine, and Horatio would not be able to prevail in a potential lawsuit.

2.6

Nature

Hamid, Heba, and their two children used to spend many weekends walking and playing in one of the few green areas at the outskirts of the city where they live. The land belongs to a private owner who lives in a small house near the lake. Corporation C acquires the green area and converts it into a members-only country club. Hamid and Heba sue. A local environmental group also sues claiming access to what they consider a natural commons. The scenario suggests that Hamid, Heba, and their children were using the green areas as members of the public without claiming any exclusive right of use of land for themselves. If so, they would need to establish that a “real burden” (akin to land servitude or easement) within the meaning of the Civil Code of 1964 exists on the land that provides them with the legal title to use. As already mentioned, the public has a statutory right to enter forests (i.e. land designated in the land cadaster as forest land) at own danger and liability (Section 30(1) of Act No. 326/2005 Coll. on Forests); this does not seem to be the case here. If the green areas are not part of a forest and Hamid and Heba did not have any contract or other permission from the owner, the only way Hamid and Heba could have acquired such right is through prescription. As suggested in previous answers, unfortunately for Hamid and Heba prescription is only available to just possessors who are objectively in good faith (good faith with regards to all circumstances). If there was no putative legal title that could have conveyed such a legal interest on Hamid, Heba, and their children, then Hamid, Heba, and their children would not be able to prove acquisition of such right. Furthermore, there is persuasive case law from the Czech Republic suggesting that in order to acquire right corresponding to a real burden the person would have to have exercised the right for herself and not as a general member of public (Decision of the Supreme Court of the Czech Republic No. 22 Cdo 1141/99, Decision of the Circuit Court in České Budějovice No. 6 Co 1358/90). This would require proof that the person claiming acquisition of ownership through prescription behaved towards the property as her own (the public as such does not possess separate legal capacity and therefore cannot acquire rights for itself). The law in Slovakia would most likely be substantially the same since at the time these decisions were issued, the Czech courts were interpreting the same statute (Civil Code of 1964).

342

M. Mlkvý

Any use of land has to be in compliance with the general planning scheme of the municipality (územný plán), which subdivides the territory into zones. The zones are then grouped into categories that stipulate which kinds of use of land are permissible and which are not. Any approval for construction of buildings has to be in accordance with the general planning scheme of the municipality. In this scenario, however, it is not suggested that the use of land has substantially been changed, only that access to it has been restricted. Generally speaking, the public has a right to use only such land that is designated as public space (verejné priestranstvo). The issue in Slovakia is that the only definition of public space appears in Act No. 544/1990 Coll. on Local Charges (Taxes). This Act states that public space is mainly road, local (transport) communication, square, sidewalk, and market. Furthermore, under this Act the municipality can designate as public space all publicly accessible land in the municipality that is not under ownership of natural or legal persons (with certain exceptions that are not relevant here). However, Supreme Court of the Slovak Republic in decision No. 4 Cdo 52/2009 states that this definition of public space is valid only for tax purposes and suggests that other land may be deemed as public space as well. In that case, the dispute concerned a piece of land that in the cadastre of immovables was registered as public green (albeit its being under ownership of a private individual). Supreme Court ruled in the same decision that private land can be designated as public space, but the municipality has to remunerate the individual for such use of her land. It remains unclear whether a municipality can declare by virtue of a local by-law (všeobecne záväzné nariadenie) private land a public space since in the case decided by the Supreme Court the land became public green during the Socialist era (when the legal framework was substantially different). Nevertheless, the settled municipal practice in Slovakia is to declare as public space only land in the ownership of municipalities or to which the municipality has some kind of a right to use (i.e. leased land or an existing real burden in favour of the municipality). If a real burden existed on the land, then the holder of the right would probably be the municipality. In lieu of Hamid and Heba, the municipality would have standing to bring the claim in its own name. The same would be true if the land were designated as public space and the corporation would violate this status.

2.7

Territory

Yellowriver is a small village sitting within a large and remote forest area. The government grants to Gold Masters Corporation permission to dig seeking for gold in order to develop a nearby mine. Aware of the high polluting risks of gold extraction to the nearby river, villagers erupt in protest and attempt to stop the project by legal means. Do they have any available action to protect the river— either as individuals or as an endangered community? Mining in Slovakia is regulated by the Mining Act (Act No. 44/1988 Coll.). There is a two-step administrative process to obtain the requisite mining permission.

Property Meeting the Challenge of the Commons in Slovakia

343

Firstly, the mining company has to secure a license to the mining site; secondly, it has to apply for permission to conduct either opencast (surface) or deep mining. As part of this administrative process, a mandatory environmental impact assessment has to be performed (regulated under Act No. 24/2006 Coll. on Environment Impact Assessment). Environment Impact Assessment Act provides that a party to these environmental impact assessment proceedings is the “concerned public,” which under the Act is defined as public that is impacted or will likely be impacted by actions concerning the environment or has an interest in these proceedings (whereas an NGO supporting the protection of environment and fulfilling other statutory criteria will always be deemed as having interest in these proceedings (Section 3)). If the residents could meet the statutory definition of “concerned public,” then they will be a party to these environmental impact assessment proceedings and will have considerable procedural rights. The best chance for Yellowriver residents to prevent the environmentally harmful mining would therefore be to enter the proceedings at this stage. Once the two above-mentioned mining permissions are granted to the Gold Masters Corporation, there are only limited steps that the residents can take: filing a complaint with the public prosecution service alleging unlawful acts within the administrative process. At this stage, however, the prosecution will only consider the legality of the process and not the environmental impact per se.

2.8

Culture

State funding to a nonprofit local theater is cut in response to austerity measures; as a result the theater will be sold to a private company that wants to operate the theater at a profit. Evgenia, Misha, and Katia are actors, and along with other concerned citizens that protest the sale and other workers, they occupy the theater, and continue the theater’s programming for the public through a combination of volunteer work and donations. The municipality brings suit to evict against Evgenia, Misha, Katia, and the other actors. Variation: Assume that the actors obtain permission to stay and to use the theater provided that they run it as a commons in the interest of culture and future generations. What legal form should they use to this purpose? Evgenia, Misha, and Katia would, based on the facts of the scenario, have no valid legal title to the premises of the theater even if they continue the previous theater’s programming for the public. Since legal title to the theater was held by the municipality, the sale of municipal property has to be conducted in accordance with the provisions of Act No. 138/1991 Coll. on Municipal Property. Section 9b (1) of said Act enables a natural person who has her permanent residence in the municipality to bring action to challenge the validity of the transaction through which municipal property was transferred to a third party (or to determine that ownership of the municipality to the transferred property exists), if the transfer was not done through public tender, auction, or for a price determined by a professional assessor (with the exception of instances when the Act provides exemptions). If these formal

344

M. Mlkvý

prerequisites for the transfer were observed, Evgenia, Misha, and Katia would not likely be able to sue solely on the grounds of loss of public function (non-profit theater). In the variation to the scenario, it would be best to form a civic association, which is a separate type of legal person established for non-profit purposes under Act No. 83/1990 Coll. on Association of Citizens. The form of civic associations is very popular in Slovakia and is one of the most widely used forms of legal person with the exception of commercial enterprises established under the Commercial Code. The civic association as a separate legal person could enter into a contract with the municipality either to buy the premises of the theater outright or to establish right of use (i.e. through contract of lease, cooperation, etc.). However, sale or lease of the theater to the civic association would need to comply with the provisions of Act No. 138/1991 Coll. on Municipal Property.

2.9

Climate

Diletta, Flavio, and Antonella became aware of the reality of climate change when their schoolteacher decided to work on reading materials that were circulated at the time of the 2015 Paris Agreement on Climate Change. Although just turned 18 years old, all the three of them took the information quite seriously and started to worry about the gloomy expectations they learnt about: dangerous rise in the global temperature, water scarcity, droughts, forest fires, possible displacement of populations, etc. After the scandal involving the Popcar Corporation, concerning the manipulation of computer system for the control of emission in cars, Diletta, Flavio, and Antonella are struck by the quite feeble sanctions inflicted to the car manufacturer—not only in their jurisdiction. For this reason Diletta, Flavio, and Antonella decide to take action in the interest of future generations. They sue their government and the global corporation Popcar. Diletta, Flavio, and Antonella will not have legal standing to pursue their claim in a court of law. A private individual may sue the state acting in its capacity as a public body only in specific circumstances enumerated in Act No. 514/2013 Coll. on Liability for Damage inflicted in the Execution of Public Power and on Amendments to Certain Statutes. Under Section 4 of this Act, the state will be liable for damage caused through an (1) unlawful (administrative) decision, (2) unlawful arrest, apprehension or other deprivation of personal liberty, (3) decision on criminal sanctions, protective measures and custody, and (4) wrongful official conduct. Since the claim of Diletta, Flavio, and Antonella cannot be reasonably subsumed under any of these categories, any claim of Diletta, Flavio, and Antonella against the state would likely be dismissed. Since under the facts of the scenario it is not alleged that Diletta, Flavio, and Antonella suffered any damage in their personal capacity or bought cars from Popcar themselves under misrepresentation as to the cars’ emissions, they would not have the ground to sue Popcar Corporation, since one of the fundamental elements of claiming restitutionary damages (under Section 420 of the Civil Code) is

Property Meeting the Challenge of the Commons in Slovakia

345

the existence of damage. The only forum that would be open to Diletta, Flavio, and Antonella is the extra-legal one, i.e. to try to change the law through political action.

References Fekete I (2011) Občiansky Zákonník: Veľký Komentár [Civil Code: Extensive Commentary]. Eurokódex, Bratislava “Rental Housing Is Scarce: There Are Several Ways to Change That” (2019) Ministry of Finance, Slovak Republic. 2019. https://bit.ly/3BfaYsL Spáčil J (2005) Ochrana Vlastnictví a Držby v Občanském Zákoníku [The protection of ownership and possession in the civil code]. C H Beck, Prague

Property Meeting the Challenges of the Commons in South Africa Juanita Pienaar

Abstract Within South African private law various categories of commons exist, particularly in relation to Law of Property/Law of Things. Commons emerge within the classification of things/objects relating to whether one or more persons, or whether an individual or a community or the public as a whole, has access or rights in relation to a particular object or resource. The approach to categories and the categories themselves also depend on whether the South African Private Law applies or whether the South African customary law applies, be it official indigenous law or unofficial (living) indigenous law. Among things that cannot be owned privately are air and running water and State-owned objects such as public roads, bridges, and seashore. The commons includes natural resources and common land used for pasture. The concept of commons is well-known in South African law, flowing from the common law (Roman-Dutch law), South African customary (indigenous) law, and legislation. Academic debate is ongoing concerning the content of the concept.

1 Questionnaire: Part I 1.1

What Legal Categories in Your Legal System May More Closely Correspond to the Notion of the Commons as Deployed in the Introduction?

Within the context of the South African Private Law various “categories of commons” exist, particularly in relation to the Law of Property/the Law of Things. In this regard commons emerge within the classification of things/objects—in other words as the object of a right on the one hand and as a dimension of the right itself, on the

J. Pienaar (✉) Stellenbosch University (South Africa), Stellenbosch, South Africa e-mail: [email protected] © The Author(s), under exclusive license to Springer Nature Switzerland AG 2023 U. Mattei et al. (eds.), Property Meeting the Challenge of the Commons, Ius Comparatum - Global Studies in Comparative Law 59, https://doi.org/10.1007/978-3-031-25218-1_11

347

348

J. Pienaar

other. The latter relates to whether one or more persons or whether an individual or a community or the public as a whole has access to/has rights in relation to a particular object or resource. In other words: whether it is a co-, common, or communal ownership right or whether it is access only. The approach to categories and the categories themselves also depend on whether the South African Private Law applies or whether the South African customary law applies, be it official1 indigenous law or unofficial, living2 indigenous law.3 The overall categories would thus be different, in light of a legal pluralistic approach.

1.1.1 1.1.1.1

SA Private Law Categories of Objects/Things

Res extra commercio—these are objects or things that cannot be owned privately. In principle this means that any person, all persons, and the public would have access to these things and resources. They include: Common things—res omnium communes—things that are naturally common to mankind and thus not susceptible to private ownership, e.g., air and running water; and Public things—res publicae—things that belong to the state or organ of state, destined to be used by the general public, e.g., public roads. The difference between the first and the second categories is the following: both common things and public things are freely used by the general public, but public things—unlike common things—do not belong to the community as a whole, but belong to the state. Van der Merwe4 highlights that, precisely because public things may be used freely by the general public, the state does not have private ownership of public things, being res extra commercio. In this regard greater limitations may be placed on their use by the state or an organ of state. The regulation of use and access to these things is thus part-and-parcel of this category of things.

1

Section 1 of the Recognition of Customary Marriages Act 120 of 1998 defines Customary Law as ‘[T]he customs and usages traditionally observed among indigenous African peoples of South Africa and which form part of the culture of those peoples.’ Official Customary Law is the law found in codifications, legislation and court decisions. 2 Living Customary Law is the unwritten law embedded in communities, thereby representing ‘lived’ reality of communities who live in accordance with customary law; see Rautenbach (2018), pp. 14–15; Bennett (2004), pp. 2–8; and Himonga and Nhlapo (2014), pp. 25–30. 3 Both official and living customary law are recognised by courts under Section 211(3) of the Constitution of the Republic of South Africa. 4 Van der Merwe (2014), para [32].

Property Meeting the Challenges of the Commons in South Africa

1.1.1.2

349

The Right in Relation to Things/Resources

In relation to res extra commercio, as set out above, no private ownership is vested. As common things belonging to the community as a whole, everyone in the community has access thereto. This would not, however, result in a form of common or co-ownership, precisely because title cannot be vested in relation to things classified as being out of the commercial domain.

1.1.2

South African Customary Law (Indigenous Law)

Common property, or the commons, within the context of customary law entails natural resources and common land used for pasture. As a member of the community, on the basis of shared rules, and embedded in relevant relations, members have access to common property, commonage and natural resources, including water, wood for fuel, plants and herbs, etc.5

1.2

Is There Today or Was There in the Past a Concept of the Commons in Your Legal System? In the Affirmative, Is It Statutory, Jurisprudential, Doctrinal or Customary?

While there is no uniform definition of the commons in South African law that is understood and accepted by legal academics and practitioners alike, the concept of commons—in the sense of the various dimensions thereof—is well-known. The various dimensions of the concept are essentially threefold: The common law or Roman-Dutch concept of the commons as it is encapsulated in the concept: Common things—res omnium communes are things that are naturally common to mankind and thus not susceptible to private ownership, briefly alluded to above, including air and running water, (water law has been reformed since the new constitutional dispensation; see also the discussion in Sect. 2.4 below). Common things may be enjoyed in common by all conforming to the use for which nature had intended them. When reduced to a controllable element, they are also susceptible of individual ownership, e.g. when air is compressed in a gas cylinder or water is contained in a container.6 The customary or indigenous law concept, which is aligned with communal property. This is the context in which the term is currently used most often. In this 5

Pienaar (2017). See Van der Merwe (2014), para 31; Muller et al. (2019), p. 31; Van der Walt and Pienaar (2016), p. 18; Mostert and Pope (2010), p. 31. 6

350

J. Pienaar

regard reference is often made to the ‘commons’ and, more specifically, the “Tragedy of the commons”7 in light of the impact of colonialism and more recently, apartheid, on traditional customary law tenure.8 Increasingly the commons in this context entails the protection and conservation of natural resources.9 This is linked to traditional leadership and governance structures.10 Embodied herewith are the protection and utilization of agriculture, forestry, water and grazing. In this context, traditionally the commons did not have fixed boundaries as boundaries shifted, depending on the needs of the community or the seasonal requirements. “New commons” are now being established, resulting from the land reform programme, after 1994,11 and democracy-related developments.12 Commonage in the national law/Western law: regarding commonage property, usually land at local government level. In South Africa the establishment of municipal commonages dates back to the nineteenth century when towns (mainly in the old Cape Colony) were formally established.13 Presently two broad categories of “commonages” may be distinguished: commonages before 1994 and commonages after 199414 when the new political dispensation commenced. The former category comprises “old”, “existing” and “traditional” commonages, whereas post-1994 commonages relate to “new” commonages resulting from the redistribution programme.15 Commonage land was intended for use by the inhabitants of a particular town for grazing or other agricultural purposes. The new dispensation now requires that land also be used in the “public interest or if the plight of the poor demands it”.16 Although vast tracts of land are still in municipal control and in theory available for redistribution purposes, much of the land is tied in long-term leases to the benefit of established commercial farmers.17

7

Hardin (1968). See however, Binzana-Tutu (2008), p. 18, where the author explains that African tenure systems have erroneously been explained through the notion of ‘tragedy of the commons’. 9 Du Plessis and Pienaar (2018). 10 Traditional Leadership and Governance Framework Amendment Act 41 of 2003. See further Khunou (2009). 11 See Pienaar (2014) for a detailed exposition of the South African land reform programme, its components, its operation and evaluation thereof. 12 Traditional Leadership and Governance Framework Amendment Act 41 of 2003. See further Khunou (2009). Eg, the introduction of wall-to-wall local authorities in South Africa in line with the Local Government: Municipal Structures Act 117 of 1998 and developments in line with the Traditional Leadership and Governance Framework Act 41 of 2004. See also Pienaar (2018). 13 See generally Mostert et al. (2010), paras 53–60. 14 27 April 1994 is a watershed date for South Africa as the first free elections were held on that day, paving the way for a constitutional democracy. 15 Pienaar (2014), pp. 331–32, 286. 16 Mostert et al. (2010), para 57. 17 Pienaar (2014), pp. 832–33. 8

Property Meeting the Challenges of the Commons in South Africa

351

Accordingly, the dimensions of the concept of “commons” flow from the common law (Roman-Dutch law), South African customary (indigenous) law, and legislation.

1.3

Is the Commons Today a Topic of Academic Debate in Your Legal System—and in the Affirmative, in What Context?

The above exposition has highlighted the various dimensions to the concept of “commons”. In this regard an academic debate is taking place concerning the content of the concept. Increasingly, the commons is being highlighted as relevant and in need of academic attention. This is especially the case with regard to communal customary law tenure in relation to land and the areas formerly known as homelands or Bantustans.18 Up to 18 million South African live in these areas. Other connected factors also make this a pertinent issue, including traditional leadership and governance structures,19 problems encountered in this area with regard to legislation that was found unconstitutional20 and economic and livelihood issues. It is not so much the notion of the commons that is being debated, but the difficulties and problems linked to the commons, in particular, communal areas or traditional areas in South Africa.21

1.4

Is There Any Kind of Public Property in Your Legal System That Is Absolutely Not Alienable?

This question also resonates with the first question dealing with legal categories of commons. In light of the overarching distinction between res in commercio and res extra commercio—things in commercial trade and things which cannot be traded

18

Khunou (2009), pp. 81–125. Pienaar (2017), pp. 1–31. 20 Communal Land Rights Act 11 of 2004 (CLARA) empowered the Minister of Land Affairs (now the Minister of Agriculture, Land Reform and Rural Development) to transfer ownership of communal land from the state to communities residing there, to be held under ‘new order rights’, the content of which was not defined. CLARA required that a community had to register its rules before it could be recognised as a juristic person, legally capable of owning land. However, after concerted opposition from rural people living in communal land areas, the Constitutional Court in Tongoane v Minister for Agricultural Land Affairs 2010 6 SA 214 (CC) declared CLARA invalid in its entirety in 2010. 21 Khunou (2009), pp. 81–125. 19

352

J. Pienaar

and thus owned privately respectively—there is indeed public property that cannot be alienated.22 Common things have been set out above. These things belong to communities as a whole. However, when reduced to a controllable state, such common things may be susceptible to individual ownership, as alluded to above. Examples are air compressed in a cylinder and water, when channelled and bottled, elaborated on in more detail below.23 Public things include public roads, bridges, the seafront, etc. As explained above, these things belong to the state, although not in a form of private ownership, and can be regulated by the state or organs of state. With regard to seashore and seafronts interesting developments had occurred in South Africa by way of legislation. The sea and seashore are regulated under the National Environmental Management: Integrated Coastal Management Act 24 of 2008, which provides for “coastal public property”, including inter alia coastal waters, land submerged by coastal waters, any island and the seashore. Section 11 of the Act provides that ownership of coastal public property vests in the citizens of the Republic to be held in trust by the state on their behalf. The section furthermore provides that coastal public property is inalienable and cannot be sold or attached and the property itself or rights over the property cannot be acquired by prescription. The state has the duty and responsibility to ensure that coastal property is used, managed, protected, conserved and enhanced in the interests of the whole community. Any natural person in the Republic has a right of reasonable access to coastal public property. Access may be regulated and fees levied in relation to protected and sensitive areas however, as regulated in the Act.24 Therefore, while the common law approaches and concepts have remained direction-giving, legislative developments enable adaptations of basic principles and concepts in the public interest. Common things may be alienable if placed under control and re-packaged as a commodity, whereas some other public things have been adjusted by way of legislation, but have remained inalienable, in principle.

1.5

Are There Remedies in Your Legal System for Someone to Challenge in Court a Government That Decided Privatization of the Commons?

A privatization in this context could entail government-held or state-owned property or institutions that are (possibly) dismantled and re-packaged and thus privatized. This is thus the opposite of when private property is nationalized, where private

22

Van der Walt and Pienaar (2016), p. 16; Muller et al. (2019), pp. 30–34. See Sect. 2.4. 24 See generally Van der Merwe (2014), para [35]. 23

Property Meeting the Challenges of the Commons in South Africa

353

property becomes state-owned, set out below in more detail.25 In the case of privatization the property concept is thus adjusted and changed drastically. The body/institution engaging in the privatization process can either be Parliament itself26 or the executive. If the executive’s decision amounts to an administrative decision regulated by the Promotion of Administrative Justice Act 3 of 2000 (PAJA),27 then the Act applies and remedies available in PAJA may be used to challenge the administrative decision. These remedies are found in Section 628 and 8 of the Act, respectively. Administrative remedies: “Administrative action” is any decision, or failure to take a decision, by an organ of state, when exercising a public power or function or power in terms of the Constitution. While decisions of natural and juristic persons also amount to administrative action when there is the exercise of a public power or a public function, this will not be relevant in the instance of privatisation. Section 8: Remedies in proceedings of judicial review, based on rationality, namely a rational connection between the decision and purpose for which it was taken.29 The following possibilities emerge: 1. Declaration of constitutional invalidity—Following a declaration of invalidity, the court has discretion whether or not to set aside the irregular administrative action. 2. Setting aside unlawful administrative action—derived from common law and provided for in Section 8(1) of PAJA. A court may also decide that a just and equitable order requires that it keep the irregular administrative act in force temporarily, in which case it may suspend the declaration of invalidity so that the irregular decision remains in force for the period of suspension. 3. Remittal—when a court reviews and sets aside administrative action, it almost always refers the matter back or remits it to the decision-maker to enable it to reconsider the matter and make a new decision. In exceptional cases, the court does not give the administrator a further opportunity. Instead it makes the decision itself; this is termed substitution, as set out forthwith. 4. Substitution—the court has the power to substitute its own decision for that of the administrator or it may vary the administrative action or correct a defect resulting from the administrative action.30 5. Compensation—judicial review is generally an inappropriate means for an individual to seek recovery of loss suffered as a result of unlawful administrative action. Judicial review is directed primarily at the pre-emption, correction, and

25

See Sect. 1.6 below. In which case decisions are made by way of promulgating legislation. 27 See Section 1 of the Promotion of Administrative Justice Act 3 of 2000 (PAJA). 28 Judicial review and the grounds for review. 29 See Quinot (2015), pp. 175–179. 30 See eg, Rakgase v Minister of Rural Development and Land Reform 2020 1 SA 605 (GP). 26

354

J. Pienaar

reversal of improper administrative acts. Compensation under Section 8(1)(c)(ii) (bb) is a relatively untested remedy. De Jong v Trustees Simcha31 underscored two findings: (a) compensation cannot be granted where the court has remitted the matter for reconsideration by the decision-maker; and (b) the judge accepted that the circumstances that render a case exceptional within the meaning of the subsection are concerned not with the egregiousness of the impugned conduct of the administrator, but with the appropriateness of departing from the usual remedy of remittal. 6. Temporary interdict or temporary other relief—In the administrative law context, interdicts are typically used to prevent the commission of irregular administrative action or to prevent the taking of further steps in reliance on administrative action; mandatory interdicts are used to procure performance when public officials refuse to act. Common law remedies: If the decision does not amount to an administrative decision in terms of Section 1 of PAJA, then common law or constitutional remedies apply. This may be the case where PAJA, for example, does not apply when dealing with policy decisions or where one of the requirements in Section 1 is not met. 1. Delictual damages for malperformance of statutory functions—courts approach the awarding of delictual damages against public bodies for negligent conduct in performance of statutory functions rather cautiously: bona fide administrative errors, incompetence or even negligence by public officials will ordinarily not found a delictual claim.32 2. Interdict (prohibitory, mandatory, and structural interdicts)—courts may threaten to undermine the separation of powers doctrine where it grants an interdict that restrains the exercise of an executive or legislative power authorized by statute or the Constitution, but under the common law the courts have granted interdicts to restrain the exercise of statutory power in cases where there are allegations of mala fides or where the functionary has acted outside the law. 3. If no rationality between decision and purpose, then declaration of constitutional invalidity occurs. See in this regard powers of courts in constitutional matters under Section 172(1) of the Constitution: When deciding a constitutional matter within its power, a court (a) must declare that any law or conduct that is inconsistent with the Constitution is invalid to the extent of its inconsistency; and (b) may make any order that is just and equitable, including (i) an order limiting the retrospective effect of the declaration of invalidity; and (ii) an order suspending the declaration of invalidity for any period and on any conditions, to allow the competent authority to correct the defect.

31

2014 4 SA 73 (WCC). Steenkamp NO v Provincial Tender Board of the Eastern Cape 2007 3 SA 121 (CC) para 56; Telematrix (Pty) Ltd v Advertising Standards Authority SA 2006 1 All SA (SCA) para 26. 32

Property Meeting the Challenges of the Commons in South Africa

355

4. Declaration of Rights. Constitutional remedies: If applicable, constitutional damages. Criminal remedies: Where the decision is based on corruption: 1. Section 217 of the Constitution enjoins organs of state in the national, provincial or local sphere of government to contract for goods or services in accordance with a system that is fair, equitable, transparent, competitive, and cost effective. 2. The Prevention and Combatting of Corrupt Activities Act 12 of 2004 (PRECCA). This Act is the key statute on corruption in South Africa. It provides for the general offence of corruption as well as specific offences. It also provides for investigative measures, as well as preventative measures combatting corruption. In simple terms, corruption is the abuse of power for private gain. This might well be relevant where state-owned property is being privatized. In terms of PRECCA, corruption has the following elements: • • • • •

Someone giving (offering to give) Someone receiving (or agreeing to receive) Someone in a position of power Gratification To use their power illegally, unlawfully or unfairly.

3. Depending on the circumstances the Public Finance Management Act 1 of 1999 (PFMA) and the Treasury Regulations enacted in terms of PFMA may also be applicable. In this regard the specific obligations on organs of state to investigate corruption within the sphere of public procurement are set out in detail. The PFMA and Treasury Regulations are applicable to national or provincial government departments.

1.6

Are There Remedies in Your Legal System for Someone to Challenge in a Court a Government That Decided Nationalization of the Commons?

Nationalization is the process of transforming private assets into public assets by bringing them under the public ownership of a national government or state. In this context private property is thus converted into collective property with a view to its utilization in the general interest. Section 25, the property clause, set out in detail in Sect. 1.7 below, provides that expropriation of property may take place under a law of general application, in the public interest or for public purposes and with the payment of just and equitable compensation. In this context nationalization would be possible, aligned with constitutional parameters. If, for example, nationalization would entail expropriation without just and equitable compensation, then Section 25 would first have to be amended to provide for such conduct. In 2018 a review committee was established to explore the possibility of amending Section 25

356

J. Pienaar

to make it possible for expropriation to take place with nil compensation, for land reform purposes only. In December 2019 a draft amendment of Section 25 was published for comment.33 Ultimately, the process was finalized in 2022 without the property clause being amended. Having regard to the exposition above and the categories and classification of things, the nationalization of common things (belonging to the community as a whole) and public things (belonging to the state or organ of state to be utilized in the public interest) is problematic. That is the case as these objects are not held in private ownership and can therefore not be “nationalized” as is normally understood under the term. However, in light of the property clause generally and Section 25(9) in particular, all reasonable measures have to be taken so as to broaden access of all citizens to South Africa’s natural resources. In this context regulation is integral, usually by way of legislation, providing as point of departure that (a) the state is the custodian of such resources and (b) access thereto is regulated and provided for specifically. Given the categories of things and the regulation of access, water and air come to mind. Regulation of Air: The following legislative measures directly or indirectly regulate access to and use of air: • • • • • • • • • • • •

National Environment Management: Air Quality Act 39 of 2004 Aviation Act 74 of 1962 Civil Aviation Act 13 of 2009 Carriage by Air Act 17 of 1946 International Air Services Act 60 of 1993 Air Service Licensing Act 115 of 1990 Civil Aviation Offences Act 10 of 1972 Airports Company Act 44 of 1993 Air Traffic and Navigation Services Company Act 45 of 1993 South African Airways Act 5 of 2007 South African Express Act 34 of 2007 Convention on the International Recognition of Rights in Aircraft Act 59 of 1993

Regulation of Water:

Likewise, access to and use of water are regulated by way of various legislative measures, elaborated on in more detail below.34 Of note is that the National Water Act 36 of 1998, which recognizes that while water is a natural resource that belongs to all people, the discriminatory laws and practices of the past have prevented equal access to water, and use of water resources. Remedies: Either Parliament or the executive has the authority to nationalize property. Similar to the exposition already provided in Sect. 1.5 above, if a decision amounts

33 Draft Constitution Eighteenth Amendment Bill, published in Government Gazette 42902 of 13 December 2019. 34 See Sect. 2.4.

Property Meeting the Challenges of the Commons in South Africa

357

to an administrative decision35 PAJA would apply and the remedies available in PAJA may be used to challenge the administrative decision under Sections 6 and 8 of PAJA. Section 6(1) provides for judicial review of administrative action and sets out the grounds of review. With respect to challenging legislation, thereby also challenging government, the following remedies are available: Constitutional remedies: Declaration of Invalidity The Constitutional Court of South Africa has the power to decide on the constitutionality of any parliamentary or provincial Bill.36 The validity of the Bill/Act can be challenged on either procedural or substantive grounds. Procedural grounds would be to challenge the process of the Bill passing through Parliament, also referred to as the correct “tagging” 37 of the Bill and its implications. Another ground would be to challenge whether there was sufficient public participation or consultation.38 Substantive Grounds In this context the relevant question posed is whether the law or conduct of the respondent (Government / state) infringed a fundamental right of the applicant. If the question is answered in the affirmative the court will consider whether the infringement is justifiable. In this equation the limitation clause, Section 36 of the Constitution, is relevant. If the infringement, having regard to relevant considerations set out in Section 36, is deemed justifiable, then the application must be dismissed and the legislative measure or act is left intact. However, if the infringement is not justifiable, the result is unconstitutional and cannot be endorsed. Being unconstitutional, the issue of an appropriate remedy immediately emerges.39

35

Section 1 of PAJA. Section 167 of the Constitution. 37 There are four main types of Bills that come before Parliament: 36

1. 2. 3. 4.

ordinary Bills that do not affect the provinces (Section 75 of the Constitution); ordinary Bills that affect the provinces (Section 76 of the Constitution); Money Bills (Section 77 of the Constitution); and Bills amending the Constitution (Section 74 of the Constitution).

The process of classifying a Bill into one of the four categories above is called ‘tagging’ and will determine the procedures the Bill must follow to become law. Bills are tagged by the Joint Tagging Mechanism (JTM), a Committee consisting of the Speaker and the Deputy Speaker of the National Assembly and the Chairperson and Permanent Deputy Chairperson of the National Council of Provinces. They are advised by the Parliamentary Law Adviser. The JTM decides on the classification of the Bill by consensus. 38 Eg, Doctors for Life International v The Speaker of the National Assembly 2006 6 SA 416 (CC); Land Access Movement of South Africa v Chairperson, National Council of Provinces 2016 5 SA 635 (CC). 39 Currie and De Waal (2005), p. 28.

358

J. Pienaar

Powers of courts in constitutional matters are set out in Section 172(1) of the Constitution. When deciding a constitutional matter within its power, a court (a) has to declare that any law or conduct that is inconsistent with the Constitution is invalid to the extent of its inconsistency; and (b) may make any order that is just and equitable, including: (i) an order limiting the retrospective effect of the declaration of invalidity; and (ii) an order suspending the declaration of invalidity for any period and on any conditions, to allow the competent authority to correct the defect. Applying the rationality test entails determining whether there is rationality between the specific decision/measure and purpose or aim it intends to achieve. This exercise can result in a confirmation of the measure or act if there is indeed rationality or a declaration of constitutional invalidity, where no rationality exists. With respect to administrative, common law and criminal law remedies, the same remedies set out in Sect. 1.5 above also apply here, albeit in the context of nationalization by Government. To that end the remedies set out there are not repeated here again.

1.7

To What Extent Is Private Property Considered a Fundamental Right in Your Legal System and What Other Constitutional Rights Could Defeat it in a Balancing Act?

Private property is indeed a fundamental right in the South African Constitution. However, property is negatively protected in Section 25 of the South African Constitution, the property clause. Section 25 is reproduced here: Property 25 (1) No one may be deprived of property except in terms of law of general application, and no law may permit arbitrary deprivation of property. (2) Property may be expropriated only in terms of law of general application— (a) for a public purpose or in the public interest; and (b) subject to compensation, the amount of which and the time and manner of payment of which have either been agreed to by those affected or decided or approved by a court. (3) The amount of the compensation and the time and manner of payment must be just and equitable, reflecting an equitable balance between the public interest and the interests of those affected, having regard to all relevant circumstances, including— (a) the current use of the property; (b) the history of the acquisition and use of the property;

Property Meeting the Challenges of the Commons in South Africa

359

(c) the market value of the property; (d) the extent of direct state investment and subsidy in the acquisition and beneficial capital improvement of the property; and (e) the purpose of the expropriation. (4) For the purposes of this section— (a) the public interest includes the nation’s commitment to land reform, and to reforms to bring about equitable access to all South Africa’s natural resources; and (b) property is not limited to land. (5) The state must take reasonable legislative and other measures, within its available resources, to foster conditions which enable citizens to gain access to land on an equitable basis. (6) A person or community whose tenure of land is legally insecure as a result of past racially discriminatory laws or practices is entitled, to the extent provided by an Act of Parliament, either to tenure which is legally secure or to comparable redress. (7) A person or community dispossessed of property after 19 June 1913 as a result of past racially discriminatory laws or practices is entitled, to the extent provided by an Act of Parliament, either to restitution of that property or to equitable redress. (8) No provision of this section may impede the state from taking legislative and other measures to achieve land, water and related reform, in order to redress the results Chapter 2: Bill of Rights 11 of past racial discrimination, provided that any departure from the provisions of this section is in accordance with the provisions of section 36(1). (9) Parliament must enact the legislation referred to in subsection (6). In all instances where conflicting or two fundamental rights—of which private ownership is one—come into conflict, a balancing act will take place. In the South African context examples are the following that have emerged from case law: Dignity—this is the case where effecting improvements to make a home more habitable on the basis of a right to dignity (Section 10 of the Constitution)40 is weighed against the right of the landowner (Section 25: private property) who does not consent to the improvements; see Daniels v Scribante.41 Right to access to housing (Section 26(1) of the Constitution)—balancing the right of the landowner with the right of the unlawful occupier; see Grootboom of the Republic of South Africa v Grootboom.42 Right not to be arbitrarily evicted from a home (Section 26(3) of the Constitution)—balancing the right of the landowner with the rights of unlawful

40

Everyone has inherent dignity and the right to have their dignity respected and protected. 2017 4 SA 341 (CC). 42 2001 1 SA 46 (CC). 41

360

J. Pienaar

occupiers; see Port Elizabeth Municipality v Various Occupiers43 and City of Johannesburg Metropolitan Municipality v Blue Moonlight Properties (Pty) Ltd.44 Right to family life under Section 5 of the Extension of Security of Tenure Act 62 of 199745 balanced with the right of the landowner; see Hattingh v Juta.46 Right to religion and cultural beliefs47 as provided for under the Extension of Security of Tenure Act 62 of 199748 and the right of the landowner; see Nkosi v Bührman.49 Right to an environment (Section 24 of the Constitution) that is (a) not harmful to a person’s health or wellbeing; and (b) protected for the benefit of present and future generations, read with the National Environmental Management Act50 and the Environment Conservation Act 73 of 1989, and the right of the landowner; see BP Southern Africa (Pty) Ltd v MEC for Agriculture, Conservation Environment and Land Affairs.51 There is thus no closed list of fundamental rights that will always prevail when balanced with private ownership, or vice versa. In each instance the balancing or weighing will take place. Of importance is that two guiding principles prevail here: the single system of law-principle52 and subsidiarity rules.53 The latter entails the following: when a right is being enforced and a legislative measure was promulgated to deal with that particular right, then the legislative measure has to be employed and relied on and not the Constitution directly, except when the legislative measure’s constitutionality is questioned.54 This means that, where the right to access to housing is relevant within the context of eviction, the Constitution itself cannot be relied on (for example Section 26 that provides for a right to access to housing). Instead, the Prevention of Illegal Eviction from and Unlawful Occupation of Land

43

2005 1 SA 217 (CC). 2012 2 SA 104 (CC). 45 This Act is part of the overall land reform programme and is aimed at preventing interference with occupiers’ rights within the context of agricultural and rural areas. In these instances the occupier has consent to occupy and may only be evicted under the Act, on a legal ground. See for a discussion of the Act Pienaar (2014), pp. 395–432. 46 2013 3 SA 275 (CC). 47 Herewith is included the right to bury a deceased on land that does not belong to the deceased when certain requirements had been met; see Pienaar (2014), pp. 418–23. 48 Freedom of religion, belief and opinion is also provided for in Section 15 of the Constitution. 49 2002 1 SA 372 (SCA). 50 National Environmental Management Act: Environmental Laws Amendment 14 of 2009; the National Environmental Management Act: Protected Areas 15 of 2009 and the National Environmental Management Act: Protected Areas Amendment Act 21 of 2014. 51 2004 5 SA 124 (W). 52 Ex Parte President of the Republic of South Africa: In re Pharmaceutical Manufacturers Association of South Africa 2000 2 SA 674 (CC) para 44; Van der Walt (2012), pp. 19–20. 53 See for more detail Van der Walt (2012), p. 20; Van der Walt (2008), pp. 77–128; Van der Walt (2017), p. 13. 54 Van der Walt (2012), pp. 40–43, 81–91. 44

Property Meeting the Challenges of the Commons in South Africa

361

Act 19 of 1998 (PIE), promulgated to specifically give effect to Section 26 of the Constitution, must be used in order for the balancing to take place.55

1.8

Private Property Is an Institution Aimed at Allowing Exclusion from Land. Is There Any Limit to Such Power of the Owner to Exclude Justified by a Right of Access of the Private Non-Owner?

The power to exclude is one of the entitlements of owners, the other entitlements being inter alia56 the right to possess or be in possession of one’s property; the right to use and enjoy one’s property, to exploit it, the right to dispose of property, the right to burden the land and to grant rights (limited real rights: iura in re aliena) in relation to land to third parties. Limitations on owners can thus emerge when an owner grants limited real rights in relation to his or her land to a third party, for example, a right of use or a servitude to another.57 That means that the third party—a non-owner—has the right to access the landowner’s property in line with the servitude. For example, if the servitude entails a right of way, the non-owner (servitude holder) would have a limited real right to access the land and use the right of way. In these instances the right to exclude would have been limited, voluntarily, by the landowner. Apart from the voluntary example above, it is also pertinent that all fundamental rights provided for in the Bill of Rights, including property, may be limited under Section 36 of the Constitution, the limitation clause, under certain conditions. These rights may only be limited in terms of a law of general application to the extent that the limitation is reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom, taking into account all relevant factors including: (a) (b) (c) (d) (e)

The nature of the right; The importance of the purpose(s) of the limitation; The nature and extent of the limitation; The relation between the limitation and its purpose; and The less restrictive means to achieve the purpose.

While the right to exclude is thus an integral part of land ownership in South African law, that right may be limited, either by way of the landowner himself or herself by granting access rights to other persons, or by way of the Constitution. In cases of

55

See also Sect. 2.1 below. Muller et al. (2019), pp. 103–104. 57 Muller et al. (2019), pp. 377–379. 56

362

J. Pienaar

unlawful occupation of land,58 the Bill of Rights, coupled with specific legislation, the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act (PIE) 19 of 1998, already alluded to above, also become relevant. Combined, these aspects may also have an impact on the owner’s right to exclude, depending on all the facts and circumstances in any given situation. Some of these matters were already raised in Sect. 1.7 above, regarding the balancing act of ownership and other relevant rights in the Constitution. Overall, depending on the particular facts, for example, the duration of the illegal occupation or the composition of the group of unlawful occupiers (e.g., the elderly, or disabled, female-headed families, young children, etc)59 an eviction order may be refused on the basis that it is not just and equitable in prevailing circumstances. In such a case the power to exclude would not be realized in practice. See also Sect. 1.7 above and Sect. 2.1 below. While “access” is not a legal notion per se, it is encountered and provided for in the Bill of Rights specifically, in the following contexts that resonate with the present question: Section 25 (4) For purposes of this section (section 25 – the property clause) (a) the public interest includes the nations commitment to land reform, and to reforms to bring about equitable access to all South Africa’s natural resources (5) The state must take reasonable legislative and other measures, within its available resources, to foster conditions which enable citizens to gain access to land on an equitable basis.60 Section 26(1) Everyone has the right to have access to adequate housing Section 27 (1) Everyone has the right to have access to – (a) health care services, including reproductive health care; (b) sufficient food and water; (c) Social security, including if they are unable to support themselves and their dependents, appropriate social assistance. Section 28(2) Everyone has the right to receive education in the official language or languages of their choice in public educational institutions where that education is reasonably practicable. In order to ensure the effective access to, and implementation of, this right, the state must consider all reasonable educational alternatives, including single medium institutions, taking into account—

58

Also referred to as squatting or informal settlement. Section 4(7) of PIE; see Pienaar (2014), pp. 723–727; Muller et al. (2019), pp. 753–755. 60 Section 25(5) is essentially an embodiment of the redistribution programme, one of the three sub-programmes of the overarching South African land reform programme. 59

Property Meeting the Challenges of the Commons in South Africa

363

(a) equity; (b) practicability; and (c) the need to redress the results of past racially discriminatory laws and practices.

2 Questionnaire: Part II 2.1

Housing

John, Orri, Sekela and Satoshi, desperate to find a home at an affordable cost, together with their families (including several children) inhabit homes in a development project, suspended due to delayed authorizations. The four friends and their families work on both the buildings and the land to enhance their living conditions (for instance, by painting the walls and adding a little garden). After a couple of months, the legal manager of the land discovers the four families and attempts to remove them. The families refuse to leave and the manager brings a claim against them.

2.1.1

The Law of Things/Property Law

Eviction is regulated under the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act 19 of 1998 (PIE) in light of Section 26(3) of the Constitution, which entails the following: No one may be evicted from their home or have their home demolished, without an order of court made after considering the relevant circumstances. No legislation may permit arbitrary evictions.

In South Africa the eviction paradigm has shifted drastically and all evictions from a home or shelter have to comply with both the Constitution61 and PIE.62 However, where evictions from business, commercial or trade premises are involved, the common law may still be employed. This means that the rei vindicatio is applicable and that the following three requirements have to be met:63 • The applicant must show that he/she is the owner of the property so occupied • That the respondent is in control or in possession of said property, and • That the property is still in existence.

61

Section 26(3) of the Constitution of the Republic of South Africa, 1996. Prevention of Illegal Eviction from and Unlawful Occupation of Land Act 19 of 1998. See Van Wyk (2010); Muller et al. (2019), pp. 753–762. 63 Muller et al. (2019), pp. 269–270. 62

364

2.1.2

J. Pienaar

The Status of the Families

They do not seem to have consent or another right in law to occupy the buildings: therefore they are unlawful occupiers for purposes of the PIE.64 Consent in this regard means neither tacit, nor explicit consent.65

2.1.3

Is the Building Abandoned?

If the building belongs to a person or entity consent for occupation will be necessary in order to prevent the occupiers from becoming unlawful occupiers. But is there an owner? Would consent in law be needed if the building is abandoned and can buildings or immovable property be abandoned? The point of departure is the principle of superficies solo cedit, meaning that structures attached to the land form part of the land. In this regard the owner of the land is usually the owner of the building, meaning that the land and building together form immovable property as a whole. The property law rules dealing with abandoning of property entail that an abandoned thing (res derelictae) is where the owner lost, abandoned or discarded property with the intention to do away with ownership. If that is the case, then such an abandoned thing is open to ownership by another person by occupation or appropriation. The intention to abandon or discard property is taken very seriously and must be very clear.66 Courts will therefore not reach this conclusion lightly. Herewith the legal rules:67 An abandonment of property by the owner thereof, with the intention to relinquish ownership, results in the loss of ownership by derelicto. The abandoned property becomes res nullius and is open to acquisition by another.68 For abandonment there must be an intention by the owner to abandon the property.69 Whether a clear intention of abandonment exists is a question of fact to be proved in each case.70

64 Section 1 of the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act 19 of 1998 provides a definition of unlawful occupier, namely a person who has no consent to reside or has no other right in law to reside. 65 See for more detail Pienaar (2014), pp. 691–699. 66 Van der Walt and Pienaar (2016), pp. 121–122. 67 Constantinos Papas No v Motsere Trading CC, case 46011/2012 [2014], ZAGPJHC decided on 6 June 2014 para 4. 68 Reck v Mills 1990 1 SA 751 (A) 757C–D; Du Bois (2007), pp. 490–491; Van der Merwe (1989), p. 377. 69 Meintjes NO v Coetzer and others 2010 5 SA 186 (SCA) para 16. 70 Salvage Association of London v SA Salvage Syndicate 1906 SC 169 at 171; Goldstein & Co (Pty) Ltd v Gerber 1979 4 SA 930 (A) 936–37.

Property Meeting the Challenges of the Commons in South Africa

365

While there is a degree of uncertainty, as Gerrit Pienaar71 explains, most academic writers in South Africa are of the opinion that immovable property does not become a res nullius by the owner’s abandoning such property, as it then becomes state property.72 In Minister van Landbou v Sonnendecker73 it was held obiter dicta that the immovable property did not accrue to the state, but in this case the state could not prove that there was an intention to abandon the property. Also see Meintjes v Coetzer,74 in which the owner did not abandon her ownership of immovable property, but waived the right to reclaim the property which was transferred fraudulently, and which property was never regarded as res nullius. Therefore, occupatio cannot be applied to obtain ownership of immovable property in an original way. CG van der Merwe75 states that it is uncertain whether land can ever become a res nullius which would then render it open to the appropriation of ownership by a new owner.76 This remains the case even though some Roman-Dutch authors speculate that it can occur and despite the court in Minister van Landbou v Sonnendecker77 accepting it by implication. The main thrust of authority seems to support the approach that land that has been discarded becomes state property bona vacantia.78 Although Roman-Dutch Law recognized that in principle land could be abandoned (Grotius 2 32 3) there were constraints. It seems to have been accepted that land could not be acquired by occupation if the owner had been forced to leave by reason of war, flooding or other circumstances (where adverse circumstances had forced the owner to leave). Another possible limiting factor was the existence of an obligation, arising from ownership of land, which could not be avoided by purporting to abandon rights in the land.79 In modern law, as explained, the case of Minister van Landbou v Sonnendecker is on point. On the issue of the abandoning of land the court made approving reference to a passage from Van der Keessel as supporting the view that land could be abandoned but it seems, on the assumption that once abandoned, land would vest in the state as bona vancantia. However, a decision on the legal issue was unnecessary because the court found that the facts did not support an intention to abandon. In response to the apparent tenor of this decision, modern writers questioned whether land can be abandoned without cancellation of the registration in the Deeds Office. There are however various difficulties with this suggestion. Section 6(1) of the

71

Pienaar (2015a), pp. 1483–1484. See Van der Merwe (1989), p. 227; Carey Miller and Pope (2000), p. 58; Mostert and Pope (2010), p. 141. 73 1979 2 SA 944 (A). 74 2010 5 SA 186 (SCA). 75 Van der Merwe (1989), p. 227. 76 See also Muller et al. (2019), pp. 38–39. 77 1979 2 SA 944 A. 78 Carey Miller (1986), pp. 8–9. 79 The old authorities limit an owner’s right to abandon land where a consequence would be to avoid tax or some other liability. 72

366

J. Pienaar

Deeds Registries Act 47 of 1937 provides that a title to land cannot be cancelled without an order of court. In practice one can hardly see an owner intent on abandoning his or her land being prepared to incur the expense of an application to court for an order authorizing the Registrar to cancel the title. But even if such an application were feasible the court would require consent of interested parties: typically, any mortgagee and any authority entitled to rates on the property. The better view, it would seem, is that if a registered owner can effectively abandon land with the result that it vests in the state, then this must simply be another instance of the true position regarding ownership otherwise than as per the registered deed.80

2.1.4

Neglect and/or Useful Utilization of Land

As explained above, neglecting land would not be tantamount to abandonment and would thus not result in the loss of ownership as such. However, the optimal or productive use of land is beneficial and is recommended. To that end municipal by-laws as well as planning and land use regulations and ordinances provide ample guidelines for the optimal utilization of land. Generally, land use planning and township establishment regulations endorse the best way in which land can be utilized. In the South African context an overarching legislative measure was promulgated to deal with the best use of land specifically, namely the Spatial Planning and Land Use Management Act 16 of 2013 (SPLUMA). Although local and provincial specifications will stipulate whether and when entrance can be obtained in light of neglect, all access to land or entrance of property is subject to the Bill of Rights and the Constitution, specifically Section 14 that provides for the right to privacy: Everyone has the right to privacy, which includes the right not to have (a) (b) (c) (d)

their person or home searched; their property searched; their possessions seized; or the privacy of their communications infringed.

The Trespass Act 6 of 1959 furthermore prevents unauthorized access to property. The aim of this Act is to prohibit the entry or presence upon land and the entry of or presence in buildings in certain instances.81 Under Section 1(a) any person who enters upon or is on land or part of a building without the consent of the owner or lawful occupier or person in control of the property or building or part of a building is guilty of an offence unless he or she has a lawful reason to enter on the land or building or part of the building. In the present instance the occupier is possibly not lawful and the owner has neglected the property.

80 81

Carey Miller (1986), p. 9. See Pienaar (2014), p. 789.

Property Meeting the Challenges of the Commons in South Africa

367

However, entering on to land may be lawful if the circumstances provide sufficient reason for such entrance, e.g., neglect which may pose a danger or pose hazards to occupiers or surrounding areas. In this regard the following legislative measures may also be relevant: sanitation regulations as well as building standards requirements and regulations (for example, the Health Act 63 of 1977); the Housing Act 107 of 1997; the Housing Consumer Protection Measures Act 95 of 1998; the Housing Development Agency Act 23 of 2008; and the National Building Regulations and Building Standards Act 103 of 1977. All rights are, however, also subject to Section 36 of the Constitution—the limitation clause, already alluded to above. This means that all fundament rights in the Bill of Rights may be restricted. The right to privacy may thus be restricted as well, having regard to the factors listed in Section 36: (a) (b) (c) (d) (e)

The nature of the right The importance of the purpose of the limitation The nature and extent of the limitation The relation between the limitation and its purpose; and The less restrictive means to achieve the purpose.

2.1.5

Improvements

Improvements to property are dealt with in terms of the Law of Things as well as the rules flowing from unjustified enrichment. In some respects guidelines are also set out in legislation and case law.

2.1.5.1 2.1.5.1.1

Common Law Accessio

The point of departure is again the superficies solo cedit principle, namely that movable things attached to immovable property become part of that immovable property—the owner becomes owner of whole. This means that an enrichment action is available to a party who lost his or her ownership. In order to determine which of the specific enrichment claims will apply in the case of the unauthorised improvement of another’s property, South African law distinguishes among various types of improvers.82 Two aspects of the improver’s identity are important. Firstly, the legal relationship between the improver and the property, and more specifically whether the improver is an occupier or possessor. Secondly, whether the improver acted in good or bad faith. By combining these two attributes, a variety of types of improvers can be identified:

82

See generally Muller et al. (2019), pp. 361–368.

368

J. Pienaar

(1) The improver who controls the property of another with the intention of being the owner (animus domini), but who wrongly believes that he is the owner (the bona fide possessor) (2) The improver who does not control the property with the intention of being the owner, but who wrongly believes that he or she has some lesser right to possess (the bona fide occupier) (3) The improver who does not control the property with the intention of being the owner, and who correctly believes that he or she has some lesser right to possess (the lawful occupier) (4) The improver who controls another’s property with the intention of being owner and behaves like an owner, but knows that he or she is not the owner (the mala fide possessor) (5) The improver who does not control another’s property with the intention of being owner, and who knows that he or she has no other right to occupy (the mala fide occupier). Despite the categories above, the boundaries between these distinctions are often quite indistinct. Traditionally, an historical justification for distinguishing between these categories was that only bona fide possessors and not bona fide occupiers were entitled to their enrichment claims. However, this justification fell away when the enrichment claim of the bona fide possessor was extended to the bona fide occupier. In the example above the families inhabit the property, seemingly abandoned, knowing that they do not have a legal basis for their occupation, making them unlawful. It can be argued that they occupy with the intention of acting as owners. They are thus unlawful and mala fide, because they know they have no legal basis to effect improvements, namely painting the walls and planting a garden. The specific improvement will also be relevant, namely, whether it is necessary, useful or luxurious. As there have been recent trends to award an enrichment claim to the mala fide possessor and the mala fide occupier, it is possible that South African law may have reached the stage where it is no longer necessary to use these categories as the dominant classification of enrichment claims arising out from unauthorised improvements. Seemingly, the focus should rather be on the nature of the expenditure and, more specifically, whether the expenditure was necessary, useful or luxurious.83 2.1.5.1.2

Categories of Expenses or Improvements of Property84

Necessary expenses or improvements (necessariae impensae) are necessary for the maintenance and continued existence of the property; unless these expenses or improvements are undertaken, the property will be destroyed or damaged or it will be rendered totally useless. Accordingly, these expenses are necessary to preserve 83

Du Plessis (2012), pp. 274–277. Van der Walt and Pienaar (2016), pp. 243, 318. See also United Building Society v Smooklers’ Trustees and Golombick’s Trustees 1906 TS 623 at 627; Muller et al. (2019), p. 361.

84

Property Meeting the Challenges of the Commons in South Africa

369

the property. The word necessary in this regard implies that the expenses are inevitable or unavoidable, or that the enriched would have incurred them in any event85 or would have taken the same steps to preserve or protect the property.86 Useful expenses or improvements (utiles impensae) are strictly not necessary in the sense described above, but they nevertheless improve the property, as is indicated by the fact that they usually increase its market value.87 In this regard, the court will take into account the prevailing views of society to determine whether the expenses or improvements where useful.88 Luxurious expenses or improvements (voluptuariae impensae) are neither necessary nor useful and, although the value of the property may be increased, are undertaken only in pursuance of personal taste or whim.89 2.1.5.1.3

The Relevance of Whether the Improver’s Expenses Are Necessary, Useful or Luxurious in Awarding Enrichment Claims

The improver, irrespective of whether he or she is a mala fide or bona fide possessor or occupier, is entitled to claim his or her necessary expenses. The claim in this regard is not limited to any actual increase in the value of the property. The owner is enriched because he or she is saved the expense, irrespective of whether the value of the asset has increased. The improver’s impoverishment, namely incurring the expense, is then the same as the defendant’s enrichment, namely saving the expense.90 An improver who has incurred luxurious expenses generally has no enrichment claim.91 In this context is may be argued that painting the walls is a useful improvement, whereas the planting of the vegetable garden may be necessary if the family is indeed destitute. If not, the vegetable garden may be a useful improvement. The Constitutional Court recently found in Daniels v Scribante92 with regard to occupiers under ESTA that an occupier may effect improvements to a home without the consent of the landowner as these improvements are directly aligned with secure tenure, which is linked to dignity.93 The improvements allowed in this instance included the following: levelling the floors, paving part of the outside area, installing water supply inside the dwelling, a wash basin, a second window and a ceiling. In the

85

Van der Walt and Pienaar (2016), p. 243, 318, and Du Plessis (2012), p. 278. Van der Walt and Pienaar (2016), p. 243. 87 Van der Walt and Pienaar (2016), pp. 243, 318, and Du Plessis (2012), p. 278. 88 Du Plessis (2012), pp. 278–279. 89 See also United Building Society v Smooklers’ Trustees and Golombick’s Trustees 1906 TS 623 at 627. 90 Du Plessis (2012), pp. 279–280. 91 Du Plessis (2012), p. 282. 92 2017 4 SA 341 (CC). 93 See also Muller et al. (2019), p. 705. 86

370

J. Pienaar

present factual situation the accommodation seems to meet the basic standard and seems to be aligned with dignity.

2.1.5.2

Legislation

Some legislative measures provide for improvements; for example, Section 14 of the Extension of Security of Tenure Act 62 of 1997, applicable to persons who occupy agricultural land in rural areas with the consent of the landowner. In Section 14 provision is made for restoration of accommodation as well as the payment of compensation and/or damages, where relevant. Being unlawful occupiers, without consent, ESTA would thus not apply here. The Prevention of Illegal Eviction from and Unlawful Occupation of Land Act 19 of 1998 (PIE), the applicable legislative measure where eviction from a house or shelter or accommodation is concerned, does not provide for restoration or the payment of improvements as such.

2.1.6

The Applicable Measure and Corresponding Procedures

In this case the manager would initiate proceedings, which means eviction proceedings under PIE.94 Three procedures are provided for in PIE, namely Section 4 dealing with normal eviction proceedings by a private landowner, Section 5 relating to urgent eviction proceedings and Section 6 dealing with evictions by an organ of state. Accepting the proceedings are not urgent, the requirements of Section 4 will have to be met, including at least two weeks’ notice, with an exposition of the grounds for eviction and service of notice on the relevant parties. No oral proceedings can take place. If the proceedings are urgent, written proceedings are again embodied in Section 5, but without two weeks’ notice. An organ of state may also lodge eviction proceedings, even if the land is privately owned, if it is in the public interest to do so. In the present matter Section 4 will probably be employed as the owner or the person in control of the property (the manager here) is able to lodge proceedings.

2.1.7

Metalegal Analysis: Alternative Housing Options

In this regard three contexts are important: international, constitutional and policy contexts:95

94 95

Muller et al. (2019), pp. 753–766. See Pienaar (2014), pp. 670–684.

Property Meeting the Challenges of the Commons in South Africa

2.1.7.1

371

International

The following international treaties and covenants impact on housing in South Africa: • International Convention on the Elimination of all Forms of Racial Discrimination of 1965 provides in Article 5 that there is an obligation on all State Parties to guarantee the enjoyment of, amongst other rights, economic, social and cultural rights, in particular the right to housing; • International Covenant on Economic, Social and Cultural Rights of 1966 provides in Article 11 for the right of everyone to an adequate standard of living, including housing, and the continuous improvement of living conditions; • Convention on the Elimination of all Forms of Discrimination against Women of 1979 provides in Article 14 that State Parties are obliged to ensure that rural women have the right to enjoy adequate living conditions, particularly in relation to housing, sanitation, electricity and water supply, transport and communications; • The Convention on the Rights of the Child of 1989 provides in Article 27 that there is an obligation on State Parties to take appropriate measures to assist parents and others responsible for the child to implement the child’s right to an adequate standard of living and, in case of need, provide material assistance and support programmes, particularly with regard to housing, amongst others; • African Charter on Human and Peoples’ Rights of 1981 does not provide explicitly for the right to housing, but it is deemed that the right to housing and a prohibition on unjust evictions are implicitly provided for in Articles 14, 16 and 18. In this regard Article 14 relates to a right to property; Article 16 to the right to the best attainable state of physical and mental health and Article 18(1) for the protection of the family; • The African Charter on the Rights and Welfare of the Child of 1990 provides in Article 20 that there is a primary obligation on parents to secure the necessary living conditions for the child’s particular development and, in case of need, State Parties are required to take all necessary steps to provide material assistance and support programmes; • The Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa of 2000 states in Article 16 that women have the right to equal access to housing and to acceptable living conditions in a healthy environment and places an obligation on State Parties to grant all women, irrespective of their marital status, access to adequate housing. South Africa has signed and ratified all of the above treaties except for the International Covenant on Economic, Social and Cultural Rights of 1966 that was signed in 1994, but not yet ratified. While the African Convention on the Protection and Assistance of Internally Displaced Persons in Africa (the Kampala Convention) was concluded in 2009 and while South Africa is an active member of the African Union, it has failed to ratify it and is not a signatory to the African Union

372

J. Pienaar

Convention.96 In this context Article 4(4)(a)–(c) dealing with arbitrary displacements based on racial or ethnic policies and Article 10, relating to developmentinduced (internal) replacements could also have been valuable as the articles provide for state obligations relating to health, safety and upgrading when residential areas are developed.

2.1.7.2

Constitution

The right to access to housing is intrinsically linked with (a) the right to access to land; (b) to secure tenure; and (c) protection against arbitrary evictions. The right to housing also resonates in the right to shelter, especially with respect to children. Accordingly, the constitutional context relevant to unlawful occupation and eviction is framed by Sections 25 and 26 specifically and, to a lesser extent, Section 28 with respect to children. Section 25(5) provides that: The state must take reasonable legislative and other measures, within its available resources, to foster conditions which enable citizens to gain access to land on an equitable basis.

Section 25(6) provides that: A person or community whose tenure of land is legally insecure as a result of past racially discriminatory laws or practices is entitled, to the extent provided by an Act of Parliament, either to tenure which is legally secure or to comparable redress.

Access to housing and its implications are set out in section 26: (1) Everyone has the right to have access to adequate housing. (2) The state must take reasonable legislative and other measures, within its available resources, to achieve the progressive realization. (3) No one may be evicted from their home, or have their home demolished, without an order of court made after considering all the relevant circumstances. No legislation may permit arbitrary evictions. As children may also be at stake here as part of families, Section 28 of the South African Constitution is also relevant in that Section 28(1)(c) provides specifically that every child has a right to basic nutrition, shelter, basic health care services and social services.

96

Lwabukuna https://bit.ly/3iigIYJ (accessed 1 July 2020).

Property Meeting the Challenges of the Commons in South Africa

2.1.7.3

373

Policy Context

In this regard the White Paper on Housing was published in 1994,97 followed by an Urban Development Strategy in 1995.98 Of great importance for policy makers at this time was the issue of how to address squatting, in all its manifestations, which included general unlawful occupation of land (squatting), sharers and sub-letters, backyard squatting, shack farming and shack lords.99 The importance of the White Paper on Housing of 1994 was that it stated unequivocally that access to housing was a basic human right. In light of the fact that it was essentially Government’s task to ensure that this right was realized, the White Paper outlined clearly all the responsibilities of the relevant three spheres of Government—national, provincial and local—in the delivery of housing.

2.1.7.4 2.1.7.4.1

Emergency Provisions Temporary

The well-known judgment in Government of the Republic of South Africa v Grootboom100 was instrumental in developing housing policy. The state was obliged to adopt a coherent, coordinated programme capable of bringing about the realization of the right to access to housing. Though the state had some scope for developing its policy in light of Section 26, the policy had to be reasonable. In Grootboom particular criteria were listed with regard to developing such a policy;101 it must: • • • • •

be adopted by way of both policy and legislative measures; be reasonably implemented; be flexible and balanced; not exclude a significant section of the population; and contain clear and efficient assignment of functions with regard to the three spheres of Government.102

In light of the fact that the overarching housing programme did not include measures “to provide relief for people who have no access to land, no roof over their heads,

97

See McLean (2007), p. 24. See Pienaar (2002), pp. 336–370, 341–343, for a discussion of the Strategy. 99 While unlawful occupation of land would not generally constitute an offence under PIE that would follow in 1998, shack farming and shack lords were specifically criminalized under Section 3 of the Act. 100 2000 11 BCLR 1169 (CC). See in detail Liebenberg (2010), chapter 4, with regard to the development of the reasonableness requirement. 101 McLean (2007), pp. 55-14–55-26. 102 Government of the Republic of South Africa v Grootboom 2000 11 BCLR 1169 (CC) para 41. 98

374

J. Pienaar

and who are living in intolerable conditions or crisis situations”103 it was found not to be reasonable. Accordingly, what are required are reasonable legislation, policies, and programmes, as well as the reasonable implementation thereof.104 The existing policy and legislative frameworks at that point in time were thus lacking. In this light the Housing Assistance in Emergency Housing Situations (Emergency Housing Programme), contained in Chapter 12 of the National Housing Code, was developed in 2004.105 Chapter 12 provides for assistance in instances where persons face eviction, demolition or imminent displacement or immediate threats to life, health and safety. It provides for grants to municipalities via the provincial Government, which enable municipalities to provide secure access to land, basic municipal services or shelter in a wide range of emergency situations. As the focus is on emergency housing and situations of exceptional housing needs, the underlying idea is to assist for an interim period only. Chapter 12 in isolation therefore does not provide a route to secure tenure or permanent housing. However, it may be the first step in securing housing on a permanent basis as the housing plight has been brought to the fore and the relevant persons may finally qualify for the Government Housing Subsidy Scheme. Criticism of the policy is that it still fails to provide adequate shortterm relief for those in crisis situations and that the procedures are cumbersome and time-consuming.106 To that end the policy seems to fall short of providing immediate accommodation in crisis situations.107 2.1.7.4.2

Permanent Accommodation

Essentially, access to housing can be achieved by way of property law, human rights or land reform channels.108 Human Rights—The Government Housing Subsidy Scheme The housing subsidy scheme is the single largest mechanism that is presently employed to realise access to housing. It results in either home ownership or rental accommodation and functions in light of the overarching above-mentioned statutory framework and the Housing Code. The subsidy is a grant from government to qualifying beneficiaries for housing purposes. Beneficiaries have to comply with the following requirements:109

103 Government of the Republic of South Africa v Grootboom 2000 11 BCLR 1169 (CC) para 99(2) (b). 104 Liebenberg (2010), Chapter 4. 105 McLean (2007), p. 55-21. 106 McLean (2007), p. 55-21. 107 Van Wyk (2012), pp. 480–484. 108 See Pienaar (2015b), pp. 1–25. 109 See https://bit.ly/2VD3jB2 (accessed 2 July 2020).

Property Meeting the Challenges of the Commons in South Africa

375

• Married or financial dependents: An applicant must be married or constantly living together with any other person. A single person with financial dependents (e.g. children or family members) may also apply. • Residents: the applicant has to be a South African citizen or be in possession of a permanent resident permit. • Competent to contract: the age of majority is 18 years. • Monthly household income: an applicant’s gross monthly income must not exceed R3500. Adequate proof of income must be submitted. • Not yet benefited: An applicant or anyone in the household must not have received previous housing benefits from the government, except if the applicant qualifies for a Consolidation Subsidy or is a disabled person. • First time property owner: Except for particular exceptions, the applicant may not own or have owned a house previously. 2.1.7.5

Property Law

Broadening access to housing or facilitating access to housing has also been achieved, to some extent, by improvising or developing new or alternative forms of ownership, often referred to as fragmented ownership.110 Development has occurred from the point of departure that single, individual ownership is not and should not be the only form of ownership available.111 Depending on the particular need, a different approach may result in a more suitable form of control.112 The property law dimension did not directly result from the new constitutional dispensation but developed over many decades. The most important forms include: sectional title schemes, share block schemes and later even further adaptations to the basic uses of sectional title and share block schemes.113 These constructions developed due to inter alia the need for densification in the urban context, combating building costs, transport and infrastructure considerations and adapting to lifestyle changes and new demands of especially urban populations.114 These developments became increasingly important since the inception thereof in the 1970s in South Africa. Although initially developed for middle and higher income groups, fragmented ownership may in future be employed on greater scale for lower income groups as smaller land units are needed; construction costs are therefore lower and the installation of basic services is generally more cost-effective.115

110

See in general Mostert and Pope (2010). See generally Muller et al. (2019), pp. 595–596. 112 Mostert and Pope (2010), pp. 100–114. 113 See for historical background Mostert and Pope (2010), pp. 4–22; Pienaar and Horn (2019), pp. 5–22. 114 Mostert and Pope (2010), pp. 10–13. 115 Mostert and Pope (2010), pp. 8–9. 111

376

J. Pienaar

Land Reform: Mention has already been made to the Extension of Security of Tenure Act, in terms of which occupiers occupy dwellings on land that belongs to another. The occupation is with consent and is usually, but not necessarily, linked to employment. In the South Africa context it usually relates to farm workers in rural areas. In this regard the redistribution and tenure reform programmes both provide access to housing and the restitution programme restores housing (or property) that was lost due to racially discriminatory laws or practices.

2.2

Health Care

Together with other people from her neighborhood, Emanuela has organized a volunteer non-profit medical clinic in what appeared to be an abandoned building offering free services to irregular migrants who have no health insurance. Soon after, Syntech Corporation, the owner of the building, realizing that the market value of the building has increased since they acquired it, decides to sell it at a profit. Syntech would like Emanuela and her volunteers out of the building within a few days in order to sell it, and initiates an eviction action. Many people in the area are upset by this news. Emanuela defends. The building is immovable property, seemingly abandoned and taken over by the volunteers and reshaped into a non-profit clinic. The difference between this factual situation and the previous one is that the building is now being employed in the public interest and to the public benefit and not being occupied by private families for accommodation and shelter purposes only. The other facts remain the same, namely a private owner who wants to institute eviction proceedings and the effecting of improvements and the implications thereof. To a large extent the same operational considerations would thus impact on this factual situation, as set out above.

2.2.1

Abandoned Building?

See above—building is neglected, but that would not result in abandonment as such.

2.2.2

Eviction Proceedings

The owner remains a private person and the occupiers remain unlawful as they do not have the express or tacit consent of the owner or another right in law to occupy. There is no specific right in South Africa law that would enable or allow the occupation of a building for health purposes, even if in the public interest. The actual use of the building is important here as PIE, as explained above, is aimed at regulating eviction from homes, dwellings and properties used for residential purposes. It is possible that the building may be occupied by persons overnight,

Property Meeting the Challenges of the Commons in South Africa

377

depending on their health, which means that the property may also serve the purpose of a shelter. If that is the case and if the use of the building is on a more permanent basis, then PIE will still apply and the same proceedings as set out in Sect. 2.1 above remain relevant. That means that Section 4 of PIE will apply. If it is clear that the property/building is not a home as such and is not used for shelter or residential purposes, then PIE is not applicable. In these circumstances the National Building Regulations and Building Standards Act 103 of 1977 may be applicable, depending on the state of the building and whether it is dangerous for personal and human occupation and whether it can be used for health purposes. In this case a court order is still required, which means that Section 26(3) of the Constitution remains relevant (quoted above). It is also possible that other measures dealing with the provision of health services and the conditions under which such services have to be provided, may become relevant, for example, the Health Act. However, departing from the point that the building is also used for purposes of a shelter in light of health considerations, it is possible that PIE will be applicable. As the defence here is important, the following issues emerge. In order for the eviction application to be successful, both procedural and substantive requirements have to be met. The procedural requirements were also set out above in Sect. 2.1. The substantive requirements include that an eviction order may only be granted if it is “just and equitable” in the circumstances. While a list of factors is provided in Section 4(7), the list is not closed as it includes “any relevant circumstance”. However, specifically listed are the elderly, single parent families, female headed families, children and the disabled. These considerations have to be factored in specifically. Where there are no defences and the granting of the order is just and equitable in the particular circumstances, an eviction order may be granted and a just and equitable date for eviction is then set. If the factors are weighed against the right of the property owner and the circumstances relate to the sick, persons who are homeless, destitute and unemployed, for example, the granting of an eviction order would not be deemed just and equitable in the circumstances. In such circumstances the eviction order may not be granted or the eviction order may be granted but the execution thereof is suspended for a period of time;116 see for more detail Hlophe v Johannesburg Metropolitan Municipality.117 It would thus be important for the defendant to set out the particular circumstances of the persons involved before the court and explain the plight of homelessness, but linked to health issues. It seems as if the eviction application is more urgent as the owner wants them evicted within a few days. If that is indeed the case, then Section 5 of PIE would be employed: Urgent proceedings for eviction

116 117

Pienaar (2014), p. 408. 2013 4 SA 121 (GSJ).

378

J. Pienaar

(1) Notwithstanding the provisions of section 4, the owner or person in charge of land may institute urgent proceedings for the eviction of an unlawful occupier of that land pending the outcome of proceedings for a final order, and the court may grant such an order if it is satisfied that (a) there is a real and imminent danger of substantial injury or damage to any person or property if the unlawful occupier is not forthwith evicted from the land; (b) the likely hardship to the owner or any other affected person if an order for eviction is not granted, exceeds the likely hardship to the unlawful occupier against whom the order is sought, if an order for eviction is granted; and (c) there is no other effective remedy available. (2) Before the hearing of the proceedings contemplated in subsection (1), the court must give written and effective notice of the intention of the owner or person in charge to obtain an order for eviction of the unlawful occupier to the unlawful occupier and the municipality in whose area of jurisdiction the land is situated. (3) The notice of proceedings contemplated in subsection (2) must (a) state that proceedings will be instituted in terms of subsection (1) for an order for the eviction of the unlawful occupier; (b) indicate on what date and at what time the court will hear the proceedings; (c) set out the grounds for the proposed eviction; and (d) state that the unlawful occupier is entitled to appear before the court and defend the case and, where necessary, has the right to apply for legal aid.

2.2.3

Improvements

The improvement as such does not strengthen the case for the occupiers/users of the building with regard to eviction. The better defence would be to highlight the factors set out above, and balance them with the right of the landowner. The operational rules relating to unjustified enrichment and property law as set out in Sect. 2.1 will apply here as well.

2.2.4

Corporation’s Entitlement v Defendants’ Entitlement to Take Ownership

The corporation is the owner. Effecting improvements or using the building will not amount to ownership by the defendants. However, if the eviction application is lodged under PIE, as explained above, and the particular circumstances of the occupiers and defendants are deemed to be of such a kind that the granting of an eviction order will not be just and equitable in the circumstances, then it is quite possible that the defendants may remain in the building. That is the case because either the eviction order will not be granted or, if it is granted, the execution thereof

Property Meeting the Challenges of the Commons in South Africa

379

may be postponed on the basis that a just and equitable date for execution has to be set. The defendants remain unlawful, and therefor do not have secure tenure and cannot become owners of the property, although they will remain in the interim. This is obviously not ideal—neither for the landowner (who wants to sell the property for profit) or for the defendants, who would ideally prefer legal certainty.

2.2.5

Public Land and Municipality Lodging Application

If the land is public land, belonging to the state (the local, provincial or national government), then the situation changes, in light of two considerations: it impacts greatly on the state’s obligations under the Constitution with regard to access to health (and housing) and would also impact on the kind of application that is lodged. With regard to both access to health (Section 27) and access to housing (Section 26), the state must take reasonable legislative and other measures within its available resources, to achieve progressive realization of each of these rights.118 It is thus possible that, being the owner of the land/building, that it may be accepted that it is the state’s duty to employ the land/building so as to achieve these rights and realise them in practice. If the state is the party that initiates the eviction application, it may do so under PIE by using any of the three procedures, including Section 4 (private owners as the state is the owner of the land), Section 5 on an urgent basis and Section 6 as organ of state. Given the considerations of the defendants as well as the duty on the state and the fact that the property is indeed state-owned, the chances of being successful are very slim indeed. That is the case because, given all the relevant circumstances, the granting of the eviction order would not be just and equitable. As explained above, despite meeting formal and procedural requirements, an eviction order may only be granted if it is indeed considered just and equitable to do so in the particular circumstances.

2.2.6

Constitutional Context

Soobramoney v Minister of Health, KwaZulu-Natal119 is the first Constitutional Court judgment that adjudicated on the universal constitutional right to medical treatment in light of South African conditions. Thiagraj Soobramoney was terminally ill, suffering from ischemic heart disease and cerebro-vascular disease, and of limited means. His kidneys had failed in 1996, and his condition had been diagnosed as irreversible. To survive even for a while, he required renal dialysis. After exhausting his funds on private providers, he sought the treatment free from the dialysis programme of the Addington Hospital, a state-funded institution in Durban.

118 119

Section 26(2) and Section 27(2) of the Constitution of the Republic of South Africa, respectively. 1998 1 SA 765 (CC).

380

J. Pienaar

He was rejected on the grounds that his condition did not fulfil the requirements for eligibility: that he be curable within a short period of time, and that, as for his renal failure, he be eligible for a kidney transplant. He thereafter brought an application to the Durban High Court for an order that Addington give him the needed treatment, on the basis that he not be “refused emergency medical treatment,” and insisting also on his constitutionally-protected right to life. The High Court dismissed his application, and he appealed to the Constitutional Court, which found Addington’s standards to be reasonable and in his case fairly applied. His appeal was dismissed on the grounds that his non-treatment did not constitute a violation of his rights. Were Soobramoney to be given the full benefit of treatment, everyone else in his position would have to benefit as well. The state’s limited resources could not accommodate such a burden. Accordingly, the right to emergency medical treatment had only limited meaning: one who suffers a sudden catastrophe, calling for immediate medical attention, should not be denied the available emergency services, and should not be turned away from a hospital equipped to administer the necessary treatment. However, Soobramoney’s situation was an “ongoing state of affairs,” and did not constitute an emergency. Instead, his case fell under Sections 27(1) and (2) of the Constitution, which deal with the allocation of non-emergency medical treatment, qualified by the availability of resources. Because Addington’s resources were limited, its policy was to admit only those patients who could be cured quickly, and those with chronic renal failure who are eligible for a kidney transplant. The court ruled that it could not interfere with the good-faith decisions of political organs and medical authorities as to the allocation of budgets and priorities. The court held further that the right to emergency medical treatment was independent of and not therefore inferable from the right to life. Section 27 deals specifically with health rights, which had to be interpreted in the context of the availability of health services generally. There was, however, scope for challenging executive policies if they were unreasonable or applied unfairly. As children may also be at stake here as part of the families, Section 28 of the South African Constitution is also relevant in that Section 28(1)(c) provides specifically that every child has a right to basic nutrition, shelter, basic health care services and social services. Apart from the link to children, Section 27 also operates in combination with Section 12(2): the right to bodily and psychological integrity; Section 14: right to privacy; and Section 24(a): right to an environment that is not harmful to their health and wellbeing.

Property Meeting the Challenges of the Commons in South Africa

2.2.7

381

Emergency and Other Needs

The Minister of Health v Treatment Acton Campaign (No 2)120 (TAC) case recognized that emergency, short, medium and long-term plans are all complementary, resulting in the state being ordered to address all of these plans in relation to the use of nevirapine in relation to HIV-positive patients.

2.2.8

Policy Dimension

The 1997 White Paper for the Transformation of the Health System in South Africa resulted in the Primary Health Care Initiative in terms of which certain categories of persons qualify for free basic health care services and education.

2.3

Food

Marta, Mattias, and Madison, together with their families and neighbors, cultivate a communal garden on a vacant plot of land as a food source. Max Corporation, the owner of the plot of land, discovers the three families and tells them to leave. Max Corporation brings a claim against the three families for their removal and the removal of food grown by the families on its land. The operational rules remain largely the same as those set out in Sects. 2.1 (housing) and 2.2 (health), although the following facts are different: The property is vacant land and not a building (used for residential or health purposes), meaning that the PIE Act will not be employed here. The purpose of the land is thus for agricultural or food purposes and not for residential or shelter purposes. It is furthermore not a commercial agricultural enterprise but exploited by three families only, possibly for subsistence purposes. The operational rules regarding abandonment and improvements remain the same. With regard to the latter, the points of departure remain superficies solo cedit and implantatio and the defendants (users of the land) remain mala fide as they do not have a legal ground for their use of the land and they know they do not have such a ground, yet they continue with their utilization. The improvements are either necessary (for their existence as a food source: a case of survival and subsistence) or useful. As landowner the applicant becomes owner of the crops planted on the basis of the superficies solo cedit-principle, dealt with above. In this process he is enriched to the detriment of the land users. The remedy in this case would probably be a declaration of rights where the applicant sets out his ownership and the unlawfulness of the occupation by the respondents. It is also possible that the common law rei vindicatio could be

120

2002 5 SA 721 (CC).

382

J. Pienaar

employed here as the owner relies on his land ownership and the unlawfulness of the use thereof by the respondents. The requirements were set out in Sect. 2.1 above. PIE does not feature here, as explained.

2.3.1

Public Land and the Municipality Initiated the Proceedings?

This is similar to Q2 above in the sense that everyone has a right to have access to food under Section 27(1) of the Constitution and the state has the duty to realise this right progressively, keeping in mind the available resources. There is thus no duty on a private individual to provide and ensure access to food, whereas such a duty is on the state. However, depending on where the land is located, other considerations may also be relevant (for example, land use, planning or health and safety). It may not be optimal or safe or viable to use that particular parcel of land for food production, depending on its location and the other surrounding factors and circumstances. While it is true that the state has the duty to realise this right progressive, where children are concerned the right to basic nutrition is not qualified to the same extent as other rights that embody “access to”. Because children are a vulnerable group there has to be special consideration for them in policies and programmes.

2.3.2

Policy/Legislative Framework Regarding e.g., Poverty, Access to Food, Food Security Etc.121

As children may also be at stake here as part of the families, Section 28 of the South African Constitution is also relevant in that Section 28(1)(c) provides specifically that every child has a right to basic nutrition, shelter, basic health care services and social services. The Human Rights Commission and the Studies in Poverty and Inequality Institute have developed a socio-economic rights monitoring tool to monitor and evaluate the performance of government and the realization of socio-economic rights. In this regard the Constitution and South African policies dealing with the right to food form the background, as well as the international and regional African treaties. International dimension: • • • •

International and regional human rights law International Covenant on Economic, Social and Cultural Rights Optional Protocol to the ICESCR Voluntary guidelines to support the progressive realization of the right to adequate food in the context of national food security, FAO

121

See in general McLaren et al. (2015) and Chirwa (2009).

Property Meeting the Challenges of the Commons in South Africa

383

• • • • • •

UN Special rapporteur on the right to food Convention on the elimination of all forms of discrimination against women Millennium development Goals and Sustainable development goals Convention of the rights of the child African Charter on Human and Peoples’ Rights Protocol to the African Charter on Human and Peoples’ Rights on the right of women in Africa • African Charter on the rights and welfare of the child The main shortcoming in South Africa is the lack of an integrated overarching legal and institutional framework. It does not have a department of food security or a department with an overall mandate on food and nutrition issues.122 There is, however, an Integrated Food Security Strategy for South Africa (2002). Quite a number of child-specific initiatives exist, including the National School Nutrition Programme and Acute Protein Energy Malnutrition Programme. The former is handled by the Department of Basic Education and is implemented in primary and secondary schools that meet the requirements. The Department of Health’s Integrated Nutrition Programme is broader than the child-specific programmes as it covers issues of nutrition in general.123 Legislative framework A variety of legislative measures regulate and impact on food matters, including the following: • • • • • • • • • • • •

Foodstuffs, Cosmetics and Disinfectants Act 54 of 1972 Competition and price regulation measures124 Health Act 63 of 1977 Agricultural Products Standards Act 119 of 1990 Meat Safety Act 40 of 2000 The International Health Regulations Act 28 of 1974 Trade Metrology Act 77 of 1973 Liquor Products Act 60 of 1989 Plant Improvement Act 53 of 1976 Conservation of Agricultural Resources Act 43 of 1983 Marketing of Agricultural Products Act 47 of 1996 Other sector-related legislation including the Standards Act 29 of 1993; Medicines and Related Substances Control Act 101 of 1965; Fertilizers, Farm Feeds, Agricultural Remedies and Stock Remedies Act 36 of 1947 and the Agricultural Pests Act 36 of 1983.

Water and health issues, also linked to food, are dealt with in specific legislation, alluded to in other answers under water and health respectively.

122

Chirwa (2009), p. 27. Chirwa (2009), p. 31. 124 Competition Act 89 of 1998; Competition Commission of South Africa. 123

384

2.4

J. Pienaar

Water (Rural)

Maya, Malik, and Mei depend on the water of Flumia, a nearby river. The three villagers together with other villagers in the area build aqueducts and an irrigation canal from the river to their respective homes and fields. After a few years, a private corporation diverts the water of the Flumia River. Soon after, Maya, Malik, and Mei realize that water no longer flows to the aqueducts and irrigation canal from the river. Maya, Malik and Mei sue. Section 27(1) of the Constitution provides specifically for access to water, forming part of the right to access to health care, food, water and social security. Having access to water is thus a foundational right provided for specifically in the South African Constitution.

2.4.1

Historical Dimension

In South Africa the historical development of access to water and water rights is critical. The new constitutional dispensation in 1994 changed the water dispensation drastically. Therefore, South African water rights 50 or 100 years ago are indeed vastly different from the present (post-constitutional) water dispensation.125

2.4.2

Brief Overview

Before the new water dispensation, rights relating to water were dealt with in accordance with the common law 126 and the Water Act 54 of 1956. 127 In terms of the Roman-Dutch law a main distinction was drawn between water that was res publicae, belonging to the state; and running water. 128 The latter was further subdivided into res omnium communes to be used by everyone and res privatae belonging to private individuals. Public waters belonged to the nation as a whole whereas private rivers vested in private individuals. Voet 129 drew a further distinction between private rivers, running water and public water. River beds generally were res publicae and river banks belonged to riparian owners. Grotius 130 was of the opinion that river beds were not public but belonged to the riparian owner in private

125

See for history Muller et al. (2019), pp. 765–767. See also Mostert and Pope (2010), chapter 11. Consisting of the Roman law, Roman-Dutch law and some English influence; see in general Thompson (2006), pp. 17–32. See also Muller et al. (2019), pp. 765–767. 127 Silberberg and Schoeman (1983), pp. 347–57. 128 See generally Van der Merwe (1989), pp. 30–32, 34–35. 129 Commentarius ad Pandectas 1.8.8. 130 Inleidinge tot de Hollandse Rechtsgeleerdheid 2.1.25. 126

Property Meeting the Challenges of the Commons in South Africa

385

property. Later, under English influence, streams were divided into (a) streams in private ownership, which were non-navigable and in private use or navigable and in public use; and (b) streams in public ownership which were navigable and in public use. 131 With regard to non-navigable private rivers an owner obtaining land over which a private river flowed simultaneously obtained property rights in relation to the water. Ownership 132 vested by way of (a) the fact that the land and water were inseparable; and (b) due to the principle that a landowner was also the owner of everything above and beneath the surface of the land. 133 The volume of water to be used was determined by what was reasonable in the circumstances. 134 Non-riparian owners had various options to procure water rights, for example by way of vesting servitudes. Navigable private rivers also belonged to the relevant riparian owner on the basis of the common-law principle that a landowner was also owner of what was above and underneath the land surface. The public was entitled to make use of the rivers (being navigable waters) for navigation and fishing purposes. Parts of rivers beneath the co-tidal line were deemed to be public rivers. In these instances the beds and banks belonged to the state. Immediately after the 1994 general elections, the Minister of Water Affairs and Forestry initiated a process to review all water-related legislation. 135 Not only did the new constitutional dispensation necessitate such a step, but it was also imperative to address the fragmented approach to water control, which excluded large portions of the country from effective water management measures. In November 1996 the Fundamental Principles and Objectives for the New Water Law in South Africa was approved by cabinet. Although various broad principles were formulated, 136 the point of departure was that “water law shall be subject to and consistent with the

131

See Thompson (2006), p. 30. Thompson (2006), p. 31 points out that this form of ownership was limited in that it did not have all of the characteristics of ownership due to the mobility of the water on the one hand, and the fact that the water was available for the common use of all of the owners on whose land it flowed, on the other hand. 133 In accordance with the principle cuius est solum eius est usque ad caelum et ad inferos. 134 Thompson (2006), p. 31 lists the following criteria, amongst others, as regards what was reasonable: (a) a riparian owner was not allowed to use water to the detriment of other owners with similar rights; (b) a reasonable share depended on the value of the water for the user, the similar rights of downstream owners, the size and nature of the stream and the different uses to which the stream could have been appropriated; (c) a riparian owner had an exclusive right of use of the water running over his or her land; (d) except in arid areas, the use of water for irrigation was deemed to be artificial use; (e) water could be used for industrial purposes only with due consideration of the domestic and stock-watering requirements of other owners; and (f) water pollution was unreasonable and illegal. 135 The White Paper on Water Supply and Sanitation was already published by November 1994. The White Paper was replaced by the Strategic Framework for Water Services, 2003 and again in 2012. See for more detail Muller et al. (2019), pp. 768–769. 136 Including legal aspects of water (principles 1–4); the water cycle (principles 5–6), the water resource management priorities (principles 7–11); water resource management approaches (principles 12–21), water institutions (principles 22–24) and water services (principles 25–28). 132

386

J. Pienaar

Constitution in all matters including the determination of the public interest and the rights and obligations of all parties, public and private, with regard to water”. 137 Furthermore, it was clearly stated that water was a resource common to all and that the use thereof should be subject to national control. 138 Consequently there would be no ownership of water, but only a right (for environmental and basic human needs) or authorisation for its use. 139 The location of the water resource in relation to land should not in itself confer preferential rights to usage, thereby explicitly abolishing the riparian principle. 140 The new ethos relating to water control essentially embodied the following fundamental objectives: (a) to achieve equitable access to water; (b) to achieve sustainable use of water; and (c) to achieve efficient and effective water use. 141 The White Paper on a National Water Policy for South Africa was published in 1997 in which the new direction of the development of the new water dispensation was outlined. It echoed the main stance of the principles set out above, namely that water as a common national resource would be subject to common regulation and management and introduced the concept of “authorisation to use water” as a replacement for “ownership of water”. The new water dispensation functions by way of two legislative measures, namely (a) the Water Services Act 108 of 1997 and (b) the National Water Act 36 of 1998. The long title of the former reads as follows: To provide for the rights of access to basic water supply and basic sanitation; to provide for the setting of national standards and of norms and standards for tariffs; to provide for water services development plans; to provide for a regulatory framework for water services institutions and water services intermediaries; to provide for the establishment and disestablishment of water boards and water services committees and their powers and duties; to provide for the monitoring of water services and intervention by the Minister or relevant Province; to provide for financial assistance to water services institutions; to provide for certain general powers of the Minister; to provide for the gathering of information in a national information system and the distribution of that information; to repeal certain laws and to provide for matters connected therewith.

The National Water Act has the objective “to provide for fundamental reform of the law relating to water resources, to repeal certain laws and to provide for matters connected therewith”. The preamble to the Act recognizes that water is a scarce and unevenly distributed national resource which occurs in many different forms which are all part of a unitary, inter-dependent cycle. It recognizes that, while water is a natural resource that belongs to all people, the discriminatory laws and practices of the past have prevented equal access to water and the use of water resources. The government’s overall responsibility for and authority over the nation’s water is again confirmed and is linked with the equitable allocation of water for beneficial use, the redistribution of water and international water matters. It states that the ultimate aim 137

Principle 1 Fundamental Principles November 1996. Principle 2 Fundamental Principles November 1996. 139 Principle 3 Fundamental Principles November 1996. 140 Principle 4 Fundamental Principles November 1996. 141 See also Thompson (2006), p. 161. 138

Property Meeting the Challenges of the Commons in South Africa

387

of water resource management is to achieve sustainable use for all water users as well as to protect the quality of water. Finally, it recognizes the need for an integrated management approach concerning all aspects of water resources which, where appropriate, could include the delegation of management functions to a regional or catchments level so as to enable everyone to participate. Whereas the National Water Services Act provides the regulatory framework for the provision of water to consumers in light of the constitutional obligations, the National Water Act is aimed at dismantling the existing dispensation relating to control over water and the exercise of traditional or common-law water rights. In principle both measures apply to rural and urban contexts.

2.4.3

Diversion of Water by Private Corporation

Under Section 27 of the Constitution everyone has a right to access to water.142 If the canal was built before 1997 the common law, as set out above, coupled with the old Water Act would regulate the legal position. As the position is presently, no private canals may be built, nor can water be diverted privately: all licences have to be in accordance with legislation.143

2.4.4

Well

Presently all use of water is regulated by the new legislative framework set out above, including the construction of wells. The provision of water can thus only occur in line with water authorisations and licences.

2.4.5 2.4.5.1

Institutions to Protect Claimants’ Access to Water Public: The Department of Human Settlement, Water and Sanitation144

The above Department is the national custodian or trustee of South Africa’s water resources. It is primarily responsible for the formulation and implementation of policy governing the sector, as well as regulation thereof. It also has the overriding responsibility for water services provided by local government, and currently operates water resource infrastructure (such as dams), bulk water supply schemes and some retail infrastructure (providing services directly to consumers).

142

Mazibuko v City of Johannesburg 2010 4 SA 1 (CC), see also Muller et al. (2019), pp. 770–771. The Water Services Act 108 of 1997 and the National Water Act 36 of 1998. 144 Before 2019 the relevant Department was the Department of Water Affairs and Forestry. 143

388

J. Pienaar

2.4.5.2

Structures/Bodies in Terms of the Water Services Act

“Water services authority” is defined in the Water Services Act as any municipality “Water services provider” is defined to mean any person who provides water services to consumers.

2.4.5.3

Water Boards

Water Boards play a key role in the South African water sector. They operate dams, bulk water supply infrastructure, some retail infrastructure and some wastewater systems. Some also provide technical assistance to municipalities. Through their role in the operation of dams they also play an important role in water resources management and report to the Department.145

2.4.5.4

Water Resource Management and Water Services Objectives

The Department’s key objectives operate within a medium-term (4 to 5 year) time frame. Much of the work associated with their achievement is already underway.

2.4.5.5

Private Sector Participation

Since 1994 some municipalities have involved the private sector in service provision in various forms, including contracts for specific services such as wastewater treatment, short-term management contracts and long-term concessions. As explained, the regulation of water is essentially within the public domain and not in the private domain on the basis that the State is the custodian of natural resources, in this case, water.

2.5

Water (Urban)

Jose, Jasmine, and Horatio are three friends that inhabit an apartment together in a city, Flumiapolis. Following a large increase in the price of water (200% in one year), the three friends fail to pay their water bills. After failing to pay the third bill,

145

See for more detail Muller et al. (2019), p. 775.

Property Meeting the Challenges of the Commons in South Africa

389

the water management cuts off their access to the water supply. Jose, Jasmine and Horatio sue. This is a combination of human rights and public law rules and the law of things. The Constitution, Section 27, again forms the basis in the context that everyone has the right to access to water. Within an urban context important Constitutional Court jurisprudence explains how this is realized in practice whereas the disconnection of water is to some extent also regulated by property law concepts, including the mandament van spolie that deals with instances where water is disconnected unlawfully.146

2.5.1

Constitutional Court Jurisprudence Setting the Context

In Mazibuko v City of Johannesburg147 the right to access to sufficient water, as provided for in Section 27(1)(b) of the Constitution, was specifically dealt with in the Constitutional Court. The applicants—residents of Phiri, a suburb in Soweto— challenged the City of Johannesburg’s Free Basic Water Policy and the installation of prepaid meters in the relevant area.148 Underlying the installation of these meters was the goal to ultimately change the pattern of water usage in Soweto so as to reduce unaccounted-for water, to rehabilitate the water network, to reduce water demand and to improve the rate of payment in the Soweto area. Previously, a standard flat rate for water was charged, irrespective of individual household use. However, the new plan offered the following options: (a) the installation of a tap in each yard with a restricted water flow, meaning that six kilolitres of water would be available monthly, or (b) the installation of a pre-paid meter. The latter also included six kilolitres free water per month per account holder. In both the High Court 149 and the Supreme Court of Appeal150 it was found that the policy was based on error of law and had to be set aside, as well as that the installation of the pre-paid meters was unlawful. The High Court decided on 50 liters of free basic water daily to the applicants and other “similarly placed” residents in Phiri. The Supreme Court of Appeal held that the installation of the pre-paid meters was unlawful as the City’s by-laws did not provide for installation in these particular circumstances. The finding of 50 l was adjusted to 42 l per day. The final order was suspended for two years, thereby enabling the City to amend its policy accordingly. 146

Yeko v Qana 1973 4 SA 735 (A). See also Muller et al. (2019), pp. 337–345; Van der Walt and Pienaar (2016), pp. 226–237; Mostert and Pope (2010), pp. 75–83; Van der Merwe (1989), pp. 118–147. 147 2010 4 SA 1 (CC). 148 See for a detailed discussion of the case Du Plessis et al. (2010), pp. 121–124; Liebenberg (2010), pp. 466–481. 149 Mazibuko v City of Johannesburg and Others (Centre on Housing Rights and Evictions as amicus curiae) 2008 4 All SA 471 (W). 150 City of Johannesburg v Mazibuko and Others (Centre on Housing Rights and Evictions as amicus curiae) 2009 3 SA 592 (SCA).

390

J. Pienaar

In the Constitutional Court the suspension of the order was listed as a ground of appeal, as well as the finding in the Supreme Court that 42 l per day constituted “sufficient water”. Instead, 50 l per day were contended. In addressing the right to access to water in a unanimous judgment O’Regan J held that the right in Section 27 (1)(b) was subject to Section 27(2). Accordingly,151 . . . it does not require the State upon demand to provide each person with sufficient water without more; rather it requires the State to take reasonable legislative and other measures progressively to realize the achievement of the right to access to sufficient water, within available resources.

This line of reasoning was also followed before, especially in the Grootboom152 case dealing with access to housing and the Treatment Action Campaign case,153 both mentioned above. In this regard Judge O’Regan’s judgment deals in detail with the issue of reasonableness.154 Exactly what is required in relation to the right to access to sufficient water will vary over time and context. By fixing a quantified content a risk arises that a detailed analysis of the context is thereby overlooked. This approach may ultimately prove to be rigid and counter-productive. The applicants’ contention that a “basic” requirement had to be enumerated was therefore rejected. To that end the Constitutional Court did not stipulate what “sufficient water” entailed for purposes of Section 27(2). This result was supported by the text and wording of Section 27(1)(a), read with Section 27(2) which highlighted the particular context, which could, as mentioned, also vary over time. It was furthermore supported by the fact that it was ordinarily inappropriate for courts to determine the precise content of socio-economic rights as these measures were best left to the legislature and the executive, being democratically accountable for policy decisions.155 Where constitutionality issues are prevalent, however, courts may be involved in that capacity. These matters may relate to instances where the government takes no steps to realize relevant rights in question; where government’s adopted measures are in fact unreasonable; where a measure is unreasonable because it does not make provision for those desperately in need or if the government policy contains unreasonable limitations or exclusions and where the obligation of progressive realization obligates government continually to review its policies to ensure that the achievement of the right is progressively realized.156 Of critical importance was that policies had to be reasonable. However, that fact in itself is insufficient. Government also has to show that policies are constantly being reconsidered in line with its obligation to “progressively realize” social and economic rights. As it happened, the City was already in the process of revisiting its current policy and has, as a result, already drafted an Indigent Policy in relation to 151

Mazibuko v City of Johannesburg 2010 4 SA 1 (CC) at para 50. Government of the Republic of South Africa v Grootboom 2001 1 SA 46 (CC). 153 2002 5 SA 721 (CC). 154 Mazibuko v City of Johannesburg 2010 4 SA1 (CC) para 59. 155 Minister of Health v Treatment Action Campaign No 2 2002 5 SA 721 (CC) para 38. 156 Bishop and Brickhill (2009). 152

Property Meeting the Challenges of the Commons in South Africa

391

water. The city has furthermore shown its commitment in engaging with research and continuously refining its relevant policies.157 Hence the finding that the provision of free water to the amount of six kiloliters per month was reasonable. Given the particular circumstances, including costs, the pre-paid system was found to be lawful. Accordingly, the City’s Basic Free Water Policy was not unreasonable and therefore neither in conflict with Section 27 of the Constitution nor with national water legislation regulating water services. The installation of pre-paid meters was furthermore lawful as it was authorized by national legislation and the City’s by-laws, operated fairly, and was non-discriminatory. The plan devised by the City was not aimed at broadening access to water only. It was also aimed at utilizing the scare resource as efficiently as possible. To that end limiting water waste and water losses was also pursued, inter alia by relaying water pipes to improve water supply and installing pre-paid meters. While efficiency and environmental issues also emerged, the judgment dealt essentially with the scope of the right to access to sufficient water. Its relevance is thus more in this arena, including its conception of the purpose of litigation to enforce socio-economic rights.158 In this regard the court has rejected the “minimum core”,159 a decision that was met with criticism.160

2.5.2

Water Servitudes Under the National Water Act 36 of 1998

Part 2 of the National Water Act 36 of 1998 regulates water servitudes in particular. In this regard, the Act provides specifically for three types of water servitudes:161 (a) servitude of abutment means the right to occupy, by means of a waterwork, the bed or banks of a stream or adjacent land belonging to another; (b) servitude of aqueduct means the right to occupy land belonging to another by means of a waterwork for abstracting or leading water; and (c) servitude of submersion means the right to occupy land belonging to another by submerging it under water. The Act further allows a person who is authorised to use water under the Act to claim a servitude over another person’s land where this is necessary to make that water use effective. For example it might be necessary to lead water over another person’s land to take it from the source to the authorised water user’s land, and a servitude would be necessary to do this. A servitude cannot be claimed unless the claimant is authorised to use water, and if the authorisation is withdrawn or otherwise terminated the servitude will lapse. Servitudes are acquired by agreement between the

157

Mazibuko v City of Johannesburg 2010 4 SA 1 (CC) para 96. See especially Bishop and Brickhill (2009). 159 Footnote in para [138]: ‘The court has declined to adopt a minimum core approach to socioeconomic rights, despite the urging of some academic commentators’. 160 See, e.g., Bishop and Brickhill (2009). 161 Section 126 of the National Water Act 36 of 1998. 158

392

J. Pienaar

authorised water user and the relevant landowner, either according to existing procedures laid down in the Deeds Registries Act or by way of an agreement which is made an order of court.

2.5.3

Disconnection of Water

The correct procedure has to be followed for the disconnection of water; otherwise the mandament van spolie can be utilized to restore the water connection. In City of Cape Town v Strumpher162 the court highlighted that, though the basis for the provision of water was a contract (between the water users and the local authority that provides the services), in South Africa this kind of right is much more than a personal contractual right.163 That is the case because the contractual right was subsumed in constitutional (Section 27) and statutory rights (e.g., the Water Services Act). In this regard the procedure is set out in Section 11(1) of the Water Services Act 108 of 1997 regarding the rights of water users and the process of termination. The right is thus both a public law right as well as an incident of possession of the immovable property (e.g., an apartment or house). In the present matter, even though a dispute was declared by the water user, which means that a particular procedure ought to have been followed, the water was merely disconnected. This means that neither the dispute resolution procedures nor municipal by-laws were employed and were thus not complied with. In these circumstances the mandament van spolie was confirmed with the result that the disconnected water supply had to be reconnected and that the merits of the case would be investigated at a later stage. The mandament van spolie is a measure employed to restore the status quo in incidences where self-help occurred: in other words, where the lawful, normal, usual procedures were not followed. In order to be successful with the mandament the following requirements have to be met:164 (a) The person must have been in peaceful, undisturbed possession (in the context of water rights and access to water the usual corpus and animus requirements for possession are adjusted in the sense that physical possession is not in play, but quasi-possessio is.)165

162

2012 4 SA 207 (SCA). See for a detailed discussion of case law dealing with the disconnection of water Muller et al. (2019), pp. 339–346. 164 Yeko v Qana 1973 4 SA 735 (A). See also Muller et al. (2019), pp. 337–339; Van der Walt and Pienaar (2016), pp. 226–237; Mostert and Pope (2010), pp. 75–83; Van der Merwe (1989), pp. 118–147. 165 See also Impala Water Users Ass v Lourens 2008 2 SA 495 (SCA); Bon Quelle v Munisipaliteit van Otavi 1989 1 All SA 416 (A); Yeko v Qana 1973 4 SA 735 (A). Muller et al. (2019), pp. 337–339. 163

Property Meeting the Challenges of the Commons in South Africa

393

(b) There must have been spoliation, namely, dispossession occurred unlawfully.166 In the context of water supply it means that the correct procedure has to be followed before water supply can be disconnected. Another remedy is a mandamus to order the local authority to reconnect the water supply and relying on the Mazibuko-case to ensure that basic water supply continues. The disconnection of water services is not dealt with in the exact same manner in the whole of South Africa. Individuals therefore have to approach the particular municipal credit controller or the ward councillor or community development worker. If there is no assistance, complaints may be lodged with the National Credit Regulator or the municipality may be reported to the South African Human Rights Commission or the Public Protector. Every municipality has an “indigency policy” in terms of which water supply is regulated and supplied to assist the poor. In order to qualify, persons must meet the indigency requirements.167 While pre-paid meters may be used, if they are installed with a water restrictor device such instalment would be unconstitutional. The access to basic water to persons in South Africa relates to 6000 l per month, irrespective of the state of account. All municipalities, district or rural councils must address water and sanitation needs in their Integrated Development Plan (IDP) and Water Services Development Plan (WSDP). The following information has to be provided: • What water and sanitation services exist in the particular municipal area • Areas where residents do not have basic services • The number and location of people not provided with basic water and sanitation services • Any negative health and environment impacts of this lack of service • A clear phased strategy to ensure access to at least a basic level of services within five years, and • A financial management strategy (plan), including funding sources, to ensure that proposed programmes are feasible and affordable.

2.6

Nature

Hamid, Heba, and their two children used to spend many weekends walking and playing in one of the few green areas at the outskirts of the city where they live. The land belongs to a private owner who lives in a small house near the lake. Corporation C acquires the green area and converts it into a members-only country club. Hamid and Heba sue. A local environmental group also sues claiming access to what they consider a natural commons.

166 167

Muller et al. (2019), pp. 345–346. See the Free Basic Water Policy that was dealt with in the Mazibuko case.

394

J. Pienaar

The Law of Property will form the basic points of departure regarding the use of private property and whether other persons have access thereto and on what basis. The green area belongs to a private landowner. In that regard all the entitlements of ownership168 vest in the landowner. Although the children spent many weekends and days enjoying the green area, it seems as if their access and use and enjoyment may have been on the basis of one of two options: (a) an informal agreement in terms of which access was allowed, but not necessarily formalized; or (b) precario, in other words, use and enjoyment until consent is revoked. There is no right to access to private property, which is the case here, even if the property constitutes a green space. The property was acquired by a new landowner and converted into a membersonly country club. In South African law that would be acceptable, as long as formal planning and land use requirements had been met. What comes to mind here are, e.g., municipal by-laws as well as local authority requirements as a change of land use is necessary, which may involve a network of legislative measures that has to be complied with. It is also possible that the Spatial Planning and Land Use Management Act (SPLUMA), referred to above, is also applicable, which would then involve development applications and the relevant Planning Tribunal. A local environment group would not be successful purely on the basis that the area is a green space. Additional considerations, possibly tied to the Bill of Rights and/or the non-compliance of planning and land use measures, would be needed here.

2.6.1

Size and Other Characteristics of Green Area?

Because the land is privately owned, it would not make any difference whether the land was small or large. However, it is possible that the particular characteristics of the area may be pertinent, e.g., if that is the only area where a particular specimen— fauna or flora—exists. If the survival of the species is at stake and tied directly to the particular area, then any kind of development would be restricted and preservation and conservation considerations would be paramount.169 In other words, the mere fact that the area is a green area would not prevent the owner from adjusting the use of the land, as long as the formal requirements had been complied with. The mere fact that the area is a green space that was enjoyed

168

The content of ownership must be determined within the context of each individual case. Ownership may include several entitlements, notably the entitlement to use (ius utendi), dispose or alienate (ius dispondendi) and vindicate (ius vindicandi) the property. Other entitlements may include the entitlement to fruits (ius fruendi); to possess (ius possidendi), to resist any unlawful invasion (ius negandi) encumber and (under some circumstances) even neglect or destroy the property (ius abutendi). Compare Mostert and Pope (2010), pp. 92–93; Van der Walt and Pienaar (2016), pp. 47–48; Muller et al. (2019), p. 173. 169 National Environmental Management: Protected Areas Act 57 of 2003.

Property Meeting the Challenges of the Commons in South Africa

395

previously on an informal basis does not provide for a right to access on a permanent basis. If it is viable and the characteristics are relevant, it may be worthwhile to pursue the declaration of the area as a protected area under the National Environmental Management: Protected Areas Act 57 of 2003 (NEMPAA). The aim of this Act is to create a national system of protected areas in order to protect biodiversity in the country. It will regulate the kind of activities that may take place and may also result in an area that is protected but still open to the public. Access will thus be regulated and may centre on the following: Activities that could affect: • • • •

threatened or protected species or propagate alien or listed invasive species; scientific research; the removal of soil, word, coral or like entities; and prohibited activities, including polluting and littering.

2.6.2

Constitutional Dimension

There is a fundamental right in the Bill of Rights linked to the environment, contained in Section 24. This provides as follows: Everyone has the right – (a) To an environment that is not harmful to their health or well-being; and (b) To have the environment protected, for the benefit of present and future generations, through reasonable legislative and other measures that – (i) Prevent pollution and ecological degradation; (ii) Promote conservation; and (iii) Secure ecologically sustainable development and use of natural resources while promoting justifiable economic and social development. It would thus be important to highlight the need for the conservation of the area for present and future users. In that regard the NEMPAA may be of use, as explained above.

2.7

Territory

Yellowriver is a small village sitting within a large and remote forest area. The government grants to Gold Masters Corporation permission to dig seeking for gold in order to develop a nearby mine. Aware of the high polluting risks of gold extraction to the nearby river, villagers erupt in protest and attempt to stop the project by legal means. Do they have any available action to protect the river— either as individuals or as an endangered community?

396

J. Pienaar

2.7.1

Constitutional Framework

While the Constitution provides the backbone for any legal action in principle, the operative rules in this context essentially derive from Environmental Law, coupled with Procedural Law. In the present context both Section 24 and Section 25 of the Constitution are integral. The former provides for environmental rights alluded to above, whereas the latter specifically provides for reasonable legislative and other measures to broaden access to South Africa’s natural resources: Section 24 was set out above. Section 25, alluded to in 1.7 above, specifically provides in subsection (8) that no provision of Section 25 may impede the state from taking legislative and other measures to achieve land, water and related reform, in order to redress the results of past racial discrimination, provided that any departure from the provision of this section is in accordance with the provisions of Section 36(1), the limitation clause.170

Section 31 of the Constitution is also relevant in instances where the community is a cultural or traditional community and provides that: (1) Persons belonging to a cultural, religious or linguistic community may not be denied the right, with other members of that community – (a) to enjoy their culture, practice their religion and use their language; and (b) to form, join ad maintain cultural, religious and linguistic associations and other organs of civil society. Where the mining is threatening the specific community’s cultural way of life, such conduct may be a contravention of Section 31 of the Constitution. Accordingly, rights relating to the environment, to land and mining, as well as specific cultural orientation, will all have to be coordinated and balanced effectively.171

2.7.2

South African Environmental Law

Environmental matters are regulated at an overarching national level, as well as within provinces and at local levels by local authorities and municipalities. Nationally, the National Environmental Management Act 108 of 1998 (NEMA) provides for the underlying framework for environmental law. At the heart of the matter is environmental justice, the importance of which is highlighted as follows in NEMA:172

170

See Sect. 1.8 above. See, with regard to traditional communities generally, Du Plessis and Pienaar (2018). 172 Section 1 of the Act. 171

Property Meeting the Challenges of the Commons in South Africa

397

environmental justice must be pursued so that adverse environmental impacts shall not be distributed in such a manner as to unfairly discriminate against any person, particularly vulnerable and disadvantaged persons.

Further legislative measures that have national application and are critical to the scenario at hand are the National Environmental Management: Protected Areas Act 57 of 2003 and the National Environmental Management Act: Biodiversity Act 10 of 2004. It is within this context, as well as Section 24 set out above and international law, that mining and mining rights and the rights of communities have to be approached.

2.7.2.1

Basic Principles

Environmental rights: This term encapsulates South Africans’ right to an environment that is safeguarded, in fulfilment of the government’s public trust duties, for current and future generations. Preventative principle: Underlying this principle is the idea that only to be reacting to crises is far more expensive (and in more than just the pecuniary sense) than forestalling or preventing them. Polluter-pays principle: Echoed in NEMA, this means that the costs of remedying pollution, environmental degradation and consequent adverse health effects and of preventing, controlling or minimizing further pollution, environmental damage or adverse health effects must be paid for by those responsible for harming the environment. In approaching the matter at hand, two issues are critical: which measures would be relevant in identifying the misconduct or breach on the part of the mining company, on the one hand, and how—which procedure and what specific remedy— the river can be protected, on the other. Where legislation applies, legislative remedies will be utilized. In the absence of specific legislation, the Common Law remedy, on the basis of nuisance, may also be relevant.

2.7.2.2 2.7.2.2.1

Legislative Framework The Minerals and Petroleum Resources Development Act 28 of 2002 (Hereafter MPRDA)

Post-1994 a new mineral paradigm was introduced in South Africa, moving away from the former private law-oriented approach173 to one embodying greater state control over the granting, exercise and retention of rights pertaining to South Africa’s mineral and petroleum resources.174 This shift in approach and policy, which is reflected in the preamble to the Act, underscores the value of

173 174

Badenhorst et al. (2003), p. 329. For a detailed historical background see Mostert (2012), pp. 60–78.

398

J. Pienaar

minerals as a non-renewable resource, thereby necessitating minerals being placed under the custodianship of the state.175 Encapsulated herein is the state’s commitment to achieve equitable access to these resources via reform and the need to promote the development and social upliftment of communities affected by mining. Also related is the state’s commitment to guarantee tenure security in respect of mining and prospecting operations. It was critical to overhaul the apartheid structures in the mining industry and to level the playing field.176 Therefore, custodianship, coupled with the need to create an internationally competitive and efficient administrative regime for minerals, necessitated the strict regulation of prospecting and mining. In 2008 the MPRDA was amended to clarify that no mining can take place without mining and environmental authorizations.177 Since December 2014 the Minister of Mineral Resources has been responsible for the approval of environmental authorizations as well as the enforcement of the environmental provisions in the National Environmental Management Act 107 of 1998. Mining and exploration can thus occur only where all the requirements have been met and all procedures have been followed and successfully concluded. This means, inter alia, that all applicants for mining authorizations, environmental authorizations and water use licences must indicate that they are able to conduct their operations in such a manner that they will mitigate impacts on the environment, on water quality, and on the health and safety of their workers and the surrounding community.178 Non-compliance with these formalities, contravention of the requirements, or the general avoidance of all legislative conditions or regulations could therefore comprise illegal or informal mining, warranting prosecution. Therefore, if the required permits are not in place, the community or individuals can start proceedings against the mining company on the basis that illegal mining has taken place. National Environmental Management: Biodiversity Act 10 of 2004 The state/Government is appointed as the trustee of South Africa’s biological diversity.179 If the relevant area has been declared a threatened and protected ecosystem, activities in relation to those areas are severely restricted.180 Participation

175

Du Plessis and Pienaar (2018). Minister of Mineral Resources v Sishen Ore (Co) Pty Ltd 2014 2 SA 603 (CC) 611C. See also the history of mining legislation discussed in the case from 607B–609A indicating that Black people were denied access to mining. 177 Section 5A read with Section 99 of the Minerals and Petroleum Resources Development Act 28 of 2002 (MPRDA). 178 See Section 99 of the MPRDA, Sections 49A and 49B of the National Environmental Management Act 107 of 1998 (NEMA), Section 151 of the National Water Act 36 of 1998, and Section 92 of the Mine Health and Safety Act 29 of 1996. 179 Section 3. 180 E.g., persons/companies seeking to undertake listed activities impacting on threatened areas or ecosystems are required to undertake an EIA: Section 53. 176

Property Meeting the Challenges of the Commons in South Africa

399

by local communities is specifically envisaged by the Act in that communities, like the present one, can become involved in biodiversity planning by contributing to the biodiversity planning framework. Implications of mining on the river, and specifically the ecosystem that is held in place largely by the river, would thus fall within this ambit. However, as the mining had already occurred, this particular avenue of relief would not be viable in these circumstances. Participation in biodiversity planning and frameworks would thus be a more viable avenue in the future. National Environmental Management: Protected Areas Act 57 of 2003 The Act expressly provides for the establishment and management of protected areas. Promoting the participation of local communities in the management of protected areas is likewise provided for.181 Four categories of protected areas are provided for, including special nature reserves,182 national parks,183 nature reserves,184 and protected environments.185 Protected areas may be declared in relation to both privately owned and communal land, by way of a declaration of written agreement. Such agreements are registered against the relevant title deeds and are thus binding on successive owners. The Act provides for a management authority186 to be established, on behalf of the community, that can enter into management agreements with relevant partners, including the state or the National Parks Board, where relevant. Any contravention of the management agreement or any contravention of the Act itself may thus be dealt with in accordance with the specific provisions of the agreement or the Act. Where a management agreement exists, the community may approach the management authority so as to lodge an application on its behalf against the relevant mining company. 2.7.2.2.2

National Environment Management Act 107 of 1998 (NEMA)

Of critical importance in this context is Section 32 that provides that: Any person or group of persons may seek appropriate relief in respect of any breach or threatened breach of any provision of this Act, including a principle contained in Chapter 1, or of any provision of a specific environmental management Act, or of any other statutory provision concerned with the protection of the environment or the use of natural resources— (a) (b) (c) (d) (e)

181

in that person’s or group of person’s own interest; . . .; in the interest of or on behalf of a group or class of persons whose interests are affected; in the public interest; and in the interest of protecting the environment.

Section 2. Section 18(2). 183 Section 20(2). 184 Section 23(2). 185 Section 28(2). 186 It can be a suitable person, organisation or organ of state: Section 38 read with Section 37. 182

400

J. Pienaar

Section 32 of NEMA therefore enables any person or group of persons to seek appropriate relief in respect of any breach of, inter alia, “any statutory provision concerned with the protection of the environment”, in the public interest and in the interest of the protection of the environment. The section refers to any “group of persons”, not any group of persons with perpetual succession, the capacity of acquiring rights and incurring obligations independently of its members and own property. Section 32 is designed to broaden the locus standi of persons seeking to vindicate statutory environmental interests in the public interest, which includes the interests of the environment, aligned to the Constitutional Court judgment of Ferreira v Levin.187 In this regard a broad approach to standing was endorsed, indicating that it was not necessary that a litigant’s own right be under threat, but that he or she fell into any one of the categories of persons regarded as having an interest in terms of the standing provision in the Bill of Rights. Section 38 of the Constitution, dealt with briefly below, deals with locus standi generally, which is taken further by Section 32 of NEMA.

2.7.2.3

Developments Relating to Class Actions

Section 38(c) of the Constitution provides that any person can act as a member of a class in approaching a court when alleging that a right in the Bill of Rights has been infringed or threatened. In accordance with the Supreme Court of Appeal judgment handed down in Permanent Secretary, Department of Welfare, Eastern Cape v Ngxuza188 a “class action” is possible and recognized where a constitutional right has been infringed or threatened and where the following is clear: • the class is so numerous that joinder of all members is impracticable; • there are questions of law or fact common to the class; • the claims or defences of the representative parties are typical of the claims or defences of the class, and • the representative parties will fairly and adequately protect the interests of the class. Other legislative measures that also apply to the scenario at hand are the following: 1. legislation aimed exclusively at environmental management, e.g., the National Parks Act 57 of 1976 as the forest area may well be located within a national park. 2. legislation aimed at promoting an environmental objective, e.g., the Mountain Catchment Areas Act 63 of 1970 as the corresponding pollution may have dire implications for water catchment. 3. legislation not aimed at environmental management, but that includes provisions that are directly or potentially of environmental significance, e.g., land-use

187 188

1996 2 SA 621 (CC). 2001 4 SA 1184 (SCA).

Property Meeting the Challenges of the Commons in South Africa

401

planning legislation as the use of the land for mining purposes may be in contravention of land use management and land use planning legislation; and 4. legislation not aimed at environmental management, but rather at environmental exploitation (e.g., the old mining legislation and legislation promoting afforestation and fishing, and the development of townships).

2.7.2.4

Administrative Remedies

Section 8 of PAJA, alluded to above,189 may again be relevant in these circumstances where the mining company had acquired the necessary permits and authorizations, but where the community avers that the administrative action was in contravention of PAJA. In this regard the action may be reviewed, as set out above in Part I.

2.7.2.5

Common Law

Alongside legislative measures the common law may also be relevant within the context of neighbour law, especially with regard to the law of nuisance.190 In this regard the dictum sic utere tuo ut alienum laedas (“use your own so as to cause no harm”) is direction-giving.

2.7.3 2.7.3.1

Policy Questions International Level

At an overarching international level the International Union for the Conservation of Nature (IUCN) Management Guidelines of 2008 are integral. Part-and-parcel of this development is the need to assist the international community and domestic policymakers to understand, plan for and accurately record protected areas governance. Shared governance, where role players enter into agreements with the relevant communities themselves, is greatly promoted. This form of governance is important as it could prevent scenarios like the one at hand from occurring or can provide remedies in instances where such a breach takes place. As a preventative measure it is especially relevant and useful. Linked pertinently to the above is the publication of the IUCN Guidelines on Indigenous and Local Communities and Protected Areas of 2004, coupled with a series of briefing notes issued by the IUCN Commission on Environment, Economic

189

Section 1.5. See for an all-encompassing analysis of South African neighbour law Van der Walt (2010), especially 237–23.

190

402

J. Pienaar

and Social Policy (CEESP) and the formal establishment of the Indigenous and Community Conserved Areas (ICCA) Consortium in 2010. The United Nations Declaration on the Rights of Indigenous Peoples of 2007 is also relevant here if the community is a community that falls within the ambit of the Declaration.

2.7.3.2

National Level

Protected areas and territories have been impacted on and guided by a plethora of policy documents, post-1994 in South Africa. More recently, the following policy documents are inter alia directly relevant where land is held, including by communities: • The Comprehensive Rural Development Programme of 2009 • Settlement and Implementation Support Strategy for Land and Agrarian Reform in South Africa of 2007 • Green Paper on Land Reform in 2011; and • the Communal Land Tenure Policy published in September 2014. What makes the South African situation complex and challenging is that policy documents are continuously being developed and adapted, with implications for legal certainty on the one hand and constant legislative amendments on the other. Accordingly, statutory remedies are provided for in specific legislative measures (including administrative remedies like review), a possible class action may be employed in light of Section 38 of the Constitution in the public interest, or a common law remedy may be utilized under the law of nuisance. To some extent this area of law is quite dynamic.

2.8

Culture

State funding to a nonprofit local theater is cut in response to austerity measures; as a result the theater will be sold to a private company that wants to operate the theater at a profit. Evgenia, Misha, and Katia are actors, and along with other concerned citizens that protest the sale and other workers, they occupy the theater, and continue the theater’s programming for the public through a combination of volunteer work and donations. The municipality brings suit to evict against Evgenia, Misha, Katia, and the other actors. The theater is still a non-profit theater and not yet sold to a private owner who will use it for profit. It is being occupied and used for theater purposes. An eviction application is lodged. The relevant rules relate to the property law and historical contexts.

Property Meeting the Challenges of the Commons in South Africa

2.8.1

403

Eviction Application

It is a building or structure not employed for residential purposes and therefore the PIE will not be used. If the theater is, however, also used for shelter purposes in that persons remain there on a longer term basis, then PIE may be applicable and the principles set out above in 2.1 (Housing) apply here as well. Eviction application: rei vindicatio lodged by the local authority (in this context it is assumed that the local authority has the locus standi as either owner or person in control of property) and that the three requirements had been complied with.191 This is the case when the building is used purely for theatre purposes and not also for shelter or for residential purposes. It is possible that a defence may be successful in that the productions are continued by way of volunteer work and donations and that it does not cost the local authority any money. The purpose of the theater is thus achieved.

2.8.2

Historical/Cultural Theater

If the theater is a building of historical value it may be declared a historical monument under the National Heritage Resources Act192 which means that it may be preserved in its present format. That would also mean that the use thereof may not be changed and that structural or physical changes may likewise not occur, except when aligned with relevant legislative measures.

2.8.3

Policy Questions

International, national and local policies and measures apply. At the international level, though not necessarily relevant in this instance, this is the World Heritage Convention Act.193 If the theater is a national museum or a cultural institution it also has to comply with the following measures: Cultural Institutions Act 119 of 1998 National Heritage Resources Act 25 of 1999 Culture Promotion Act 35 of 1983. Variation: Assume that the actors obtain permission to stay and to use the theater provided that they run it as a commons in the interest of culture and future generations. What legal form should they use to this purpose? Theoretically, the following options are available:

191

See Sect. 2.1 above. 27 of 1999. 193 49 of 1999. 192

404

J. Pienaar

The community can form a trust under the Law of Trusts in terms of which the building, utilized as a theater, can be held in trust (including for future generations). In this case members of the community may be appointed as trustees.194 The establishment and regulation of trusts are governed by common law, as well as by the Trust Property Control Act 57 of 1988, as amended. Various parties are involved in this Endeavor. The founder of the trust can be a natural or legal person. A trust founder who provides the trust’s property must relinquish control over such property in favour of the trustee who must administer the trust free from control by the trust founder. For example, the owner of a building such as a theatre can thus be the founder of the trust and would then have to relinquish control to the trustees. The trustee is the party (or parties) who holds, controls and administers in trust the property received from the founder or another. Although a trust can be administered by a sole trustee, the trust administration is more often conducted by co-trustees. Generally any natural or legal person can act as trustee, including members of the community. The beneficiary is the party who derives a benefit from the creation of a trust by the founder and from the administration of trust property by the trustee. Any natural or legal person can be a trust beneficiary. Such beneficiary also need not be in existence when the trust is created: a trust can thus also be set up to benefit a natural person(s) or classes of person (for example a community) or a legal person to be incorporated at some future date. The qualifications of beneficiaries are: • Any person (unborn or alive) can be a beneficiary of the trust. It is thus quite possible that future generations, not yet born, can qualify. • There is no limit to the number of beneficiaries of a trust. Trusts are usually set up to benefit one or more persons or classes of person as trust beneficiaries. If the building is of historical value, the same considerations as set out above in the main question apply. Another option is entering into a long term lease. In this instance the parties to the lease agreement would be the owners of the land on which the theater is built and the representatives of the actors/community. It may be better for the actors to form a legal juristic person, a firm or a company, to act on their behalf and enter into the agreement. In South African law a long term lease may not be less than 10 years and has to be registered against the title deed of the relevant property.195 Generally, long term leases are 30 years. This may not be a sufficiently lengthy period of time for the current scenario and would thus have to be renewed.

194 195

See generally Du Toit (2007). Muller et al. (2019), pp. 514–515.

Property Meeting the Challenges of the Commons in South Africa

2.9

405

Climate

Diletta, Flavio, and Antonella became aware of the reality of climate change when their school teacher decided to work on reading materials that were circulated at the time of the 2015 Paris Agreement on Climate Change. Although just turned 18 years old, all the three of them took the information quite seriously and started to worry about the gloomy expectations they learnt about: dangerous rise in the global temperature, water scarcity, droughts, forest fires, possible displacement of populations, etc. After the scandal involving the Popcar Corporation, concerning the manipulation of computer systems for the control of emission in cars, Diletta, Flavio, and Antonella are struck by the quite feeble sanctions inflicted to the car manufacturer—not only in their jurisdiction. For this reason Diletta, Flavio, and Antonella decide to take action in the interest of future generations. They sue their government and the global corporation Popcar. Like in many of the other case scenarios above, the Constitution is the backbone, specifically Section 24 that provides for a right to the environment, already set out in 2.6 above. However, international law is increasingly becoming more relevant, especially after the Paris Agreement and the recent judgment of Earthlife Johannesburg v The Minister of Environmental Affairs and Others.196

2.9.1

Background: Climate Change

The provisions of NEMA in relation to environmental impact assessments are integral in this scenario, as was highlighted in the Earthlife Africa Johannesburg v The Minister of Environmental Affairs (DEA) judgement. The North Gauteng High Court was satisfied that neither the Department of Energy’s determination to call for a new coal-fired power plant nor the Integrated Resource Plan for Energy (IRP) trumped environmental legislation. In each instance, specific projects’ climate change and other environmental impacts had to be assessed individually and the DEA, or another relevant environmental authority, has to independently exercise its discretion on whether or not to allow a project to go ahead. Within the context of environmental assessments it must also include an assessment of the broader climate change impacts, including water scarcity and health, and how the project could be detrimental in that respect. In considering whether to authorize a development with significant climate change impacts, the environmental authority must determine which, if any, measures are required to reduce its emissions, and to ensure the resilience of the project, with the least detrimental impact on the surrounding environment. In the judgment, Murphy J197 underlined that South Africa is particularly vulnerable to the effects of climate change due to our socio-economic and environmental 196 197

2017 5 SA 227 (WCC). Para 25.

406

J. Pienaar

context. Climate variability, including the increased frequency and intensity of extreme weather events, will be consequential for society as a whole. South Africa is moreover a water-stressed country facing future drying trends and weather variability with cycles of droughts and sudden excessive rains. Pertaining to energy the court underlined the relevance of the National Climate Change Response White Paper of 2012 and the Integrated Resource Plan for Electricity 2010–2030, the latter not directly pertinent to the present issue. The White Paper sets out South Africa’s vision for an effective climate change response and the long-term just transition to a climate-resilient and low-carbon economy and society. It proposes that climate change be addressed through interventions that build and sustain its social, economic and environmental resilience and making a fair contribution to the global effort to stabilize GHG concentrations in the atmosphere. The DEA has confirmed that it has taken steps to give effect to the policy objectives identified in the White Paper, including the development and implementation of a National Climate Change Response Adaptation Strategy; the development and implementation of a GHG emission reduction system; and the adoption of a national GHG mitigation framework. The steps being taken by the DEA include developing a set of mitigation measures, inter alia identifying desired sectoral mitigation contributions. This entails defining desired emission reduction outcomes for each sector and sub- sector of the economy, based on in-depth assessment of the mitigation potential, best available mitigation options, science, evidence and a full assessment of the costs and benefits. Where appropriate, these desired emission reduction outcomes will flow down to the individual company or entity level. The policy also aims at defining company-level carbon budgets for significant GHG emitting sectors. This involves drawing up carbon budgets for significant GHG emitting sectors and sub-sectors. The carbon budget for each sector or sub-sector will then be translated into company-level desired emission reduction outcomes. Mitigation plans will be sought from companies and economic sectors for whom desired emission outcomes have been established. While the objective is clear, these measures are still under development and must be formulated at a national level and then applied at a sectoral and company level. In order to develop and implement these measures, the DEA requires detailed, complete, accurate and up-to-date emissions data. Two essential elements for the definition of desired emission reduction outcomes and the development of carbon budgets are (i) emission data and (ii) data to monitor the outcome of specific mitigation actions. At present, also in relation to the auto manufacturers in South Africa, everything is thus not yet in place.

2.9.2

Legislative Framework

National Environment Management Act 107 of 1998 (NEMA) Section 240(1) of NEMA requires the consideration of all relevant factors in reaching a decision on environmental authorization, including the climate change

Property Meeting the Challenges of the Commons in South Africa

407

impact of a particular project. Section 240 of NEMA has to be read together with relevant provisions of the Environmental Impact Assessment Regulations of 2010. National Environmental Management: Air Quality Act 39 of 2004 National Greenhouse Gas Emission Reporting Regulations were issued under the above Act and took effect in April 2017.198 The regulations pertain to both entities engaged in activities which result in atmospheric GHG emissions and those entities which hold relevant GHG emission data. If companies do not adhere to these provisions they may be prosecuted criminally. Promotion of Administrative Justice Act 3 of 2000 (PAJA) Administrative remedies are provided for under Section 8 of PAJA where the decision of the Minister stands to be reviewed.199 Access to Courts Section 38 of the Constitution, set out above in Sect. 2.7, is also relevant here. Individuals and communities are thus enabled to approach the Court where a right guaranteed in the Bill of Rights is contravened or threatened.

2.9.3

Critical Considerations with Regard to South Africa

While South Africa has signed and ratified the UN Framework Convention on Climate Change, acceded to the Kyoto Protocol and signed the Paris Agreement, it has not yet been enacted domestically. The UN Framework Convention and the Kyoto Protocol oblige developed countries, identified in Annex I to the Convention, to adopt measures to mitigate climate change and to limit GHGs to set emissions targets. South Africa is not an Annex I country, and is not bound to any emissions targets under these treaties. The Paris Agreement requires State parties to commit to Nationally Determined Contributions (“NOC”), which describe the targets that they seek to achieve and the climate mitigation measures that they will pursue. While South Africa is lagging behind with emissions legislation, it introduced emissions regulations in April 2017. As the implementation period is quite recent, the full impact of these regulations is yet unclear. Accordingly, various reporting schemes are not fully aligned and up and running yet. In the absence of specific legislation forcing companies to make public their energy efficiency statistics, and since there is no particular duty (yet) in that regard on government or the state to enforce such announcements, it would not be possible at this stage to litigate against the state in this particular case. However, if it is linked to projects where the relevant Minister has to grant consent, such consent has to be guided by Section 240 of NEMA and relevant regulations. If such consent by the

198 199

General Notice 275 of 3 April 2017 in Government Gazette 40762. See also Sect. 1.5.

408

J. Pienaar

Minister is not granted judicially, the approach set out in the Earthlife case, coupled with administrative remedies, may be followed.

2.9.4

Policy Questions

South Africa is signatory to the United Nations Framework Convention on Climate Change (UNFCCC) and the Kyoto Protocol which are the international agreements seeking to address climate change and internationally-binding emission reduction targets. In addition, South Africa committed itself in its National Climate Change Response White Paper (2012) to future climate resilient development—a national objective which inter alia requires action on the basis of GHG information. Parties to the United Nations Framework Convention on Climate Change, which include South Africa, have committed to communicate information related to the implementation of the UNFCCC. It is expected that every four years, with biennial reports to be submitted every two years, government must submit extensive information related to the implementation of the UNFCCC at the domestic level. The Paris Agreement and Its Implications South Africa ratified the Paris Agreement in November 2016 and committed in its Nationally Determined Contribution (NDC) to a peak, plateau and decline of greenhouse gas emissions (GHG) trajectory range, which is estimated to range between 398 and 614 Mt CO2-eq by 2025 and 2030. The Department of Environmental Affairs and Development Planning published the South Africa’s Second Annual Climate Change Report in 2016 that sets out in detail what the implications of the Paris Agreement are in the South African context. It has three main categories, namely mitigation, adaptation and financial investment requirements. It has also introduced a national climate change monitoring and evaluation system that addresses measurement, reporting and verification. It is essentially based on the following: the establishment of data and information coordination networks, a national climate change response database and a Greenhouse Gas Inventory System.

Government Publications Communal Land Tenure Policy (2014) Green Paper on Land Reform (2011) Integrated Food Security Strategy for South Africa (2002) Settlement and Implementation Support Strategy for Land and Agrarian Reform in South Africa (2007) Strategic Framework for Water Services (2003) Strategic Framework for Water Services (2012) Urban Development Strategy (1995)

Property Meeting the Challenges of the Commons in South Africa

409

White Paper on Housing (1994) White Paper for the Transformation of the Health System (1997) White Paper on Water Supply and Sanitation (1994)

Online Publications Lwabukuna O (2012) Internal displacement in South Africa: Reflections on law, contemporary and memory of forced removals. https://bit.ly/3iigIYJ (accessed 1 July 2020).

Legislation Agricultural Pests Act 36 of 1983 Agricultural Products Standards Act 119 of 1990 Airports Company Act 44 of 1993 Air Service Licensing Act 115 of 1990 Air Traffic and Navigation Services Company Act 45 of 1993 Aviation Act 74 of 1962 Carriage by Air Act 17 of 1946 Civil Aviation Act 13 of 2009 Communal Land Rights Act 11 of 2004 Competition Act 89 of 1998 Conservation of Agricultural Resources Act 43 of 1983 Constitution of the Republic of South Africa, 1996 Convention on the International Recognition of Rights in Aircraft Act 59 of 1993 Cultural Institutions Act 119 of 1998 Culture Promotion Act 35 of 1983 Deeds Registries Act 47 of 1937 Environment Conservation Act 73 of 1989 Extension of Security of Tenure Act 62 of 1997 Fertilizers, Farm Feeds, Agricultural Remedies and Stock Remedies Act 36 of 1947 Foodstuffs, Cosmetics and Disinfectants Act 54 of 1972 Health Act 63 of 1977 Housing Act 107 of 1997 Housing Consumer Protection Measures Act 95 of 1998 Housing Development Agency Act 23 of 2008 International Air Services Act 60 of 1993 International Health Regulations Act 28 of 1974 Local Government: Municipal Structures Act 117 of 1998 Liquor Products Act 60 of 1989 Marketing of Agricultural Products Act 47 of 1996)

410

J. Pienaar

Meat Safety Act 40 of 2000 Medicines and Related Substances Control Act 101 of 1965 Mine Health and Safety Act 29 of 1996 Minerals and Petroleum Resources Development Act 28 of 2002 Mountain Catchment Areas Act 63 of 1970 National Building Regulations and Building Standards Act 103 of 1977 National Environmental Management Act 107 OF 1998 National Environment Management: Air Quality Act 39 of 2004 National Environmental Management: Protected Areas Act 15 of 2009 National Environmental Management: Protected Areas Amendment Act 21 of 2014 National Heritage Resources Act 25 of 1999 National Parks Act 57 of 1976 National Water Act 36 of 1998 Plant Improvement Act 53 of 1976 Prevention of Illegal Eviction from and Unlawful Occupation of Land Act 19 of 1998 Promotion of Administrative Justice Act 3 of 2000 Recognition of Customary Marriages Act 120 of 1998 South African Airways Act 5 of 2007 South African Express Act 34 of 2007 Spatial Planning and Land Use Management Act 16 of 2013 Standards Act 29 of 1993 Trade Metrology Act 77 of 1973 Traditional Leadership and Governance Framework Amendment Act 41 of 2003 Traditional Leadership and Governance Framework Act 41 of 2004 Trespass Act 6 of 1959 Water Act 54 of 1956 Water Services Act 108 of 1997

Case Law Bon Quelle v Munisipaliteit van Otavi 1989 1 All SA 416 (A) BP Southern Africa (Pty) Ltd v MEC for Agriculture, Conservation Environment and Land Affairs 2004 5 SA 124 (W) City of Johannesburg Metropolitan Municipality v Blue Moonlight Properties (Pty) Ltd 2012 2 SA 104 (CC) Constantinos Papas No v Motsere Trading CC, case 46011/2012 [2014], ZAGPJHC decided on 6 June 2014 Daniels v Scribante 2017 4 SA 341 (CC) De Jong v Trustees Simcha 2014 4 SA 73 (WCC) Earthlife Johannesburg v The Minister of Environmental Affairs and Others 2017 5 SA 227 (WCC)

Property Meeting the Challenges of the Commons in South Africa

411

Ex Parte President of the Republic of South Africa: In re Pharmaceutical Manufacturers Association of South Africa 2000 2 SA 674 (CC) Goldstein & Co (Pty) Ltd v Gerber 1979 4 SA 930 (A) 936-937 Government of the Republic of South Africa v Grootboom 2001 1 SA 46 (CC) Hattingh v Juta 2013 3 SA 275 (CC) Hlophe v Johannesburg Metropolitan Municipality 2013 4 SA 121 (GSJ) Impala Water Users Association v Lourens 2008 2 SA 495 (SCA) Mazibuko v City of Johannesburg 2010 4 SA 1 (CC) Meintjes NO v Coetzer 2010 5 SA 186 (SCA) Minister of Health v Treatment Acton Campaign (No 2) 2002 5 SA 721 (CC) Minister of Mineral Resources v Sishen Ore (Co) Pty Ltd 2014 2 SA 603 (CC) Minister van Landbou v Sonnendecker1979 2 SA 944 (A) Nkosi v Bührman 2002 (1) SA 372 (SCA) Permanent Secretary, Department of Welfare, Eastern Cape v Ngxuza 2001 4 SA 1184 (SCA) Port Elizabeth Municipality v Various Occupiers 2005 (1) SA 217 (CC) Rakgase v Minister of Rural Development and Land Reform 2020 1 SA 605 (GP) Reck v Mills 1990 1 SA 751 (A) Salvage Association of London v SA Salvage Syndicate 1906 SC 169 Soobramoney v Minister of Health, KwaZulu-Natal 1998 1 SA 765 (CC) Steenkamp NO v Provincial Tender Board of the Eastern Cape 2007 3 SA 121 (CC) para 56 Telematrix (Pty) Ltd v Advertising Standards Authority SA 2006 1 All SA (SCA) Tongoane v Minister for Agricultural Land Affairs 2010 6 SA 214 (CC) United Building Society v Smooklers’ Trustees and Golombick’s Trustees 1906 TS 623 Yeko v Qana 1973 4 SA 735 (A)

References Journals and Articles Bishop M, Brickhill J (2009) Constitutional law. Juta Q Rev 4:23–34 Du Plessis M, Penfold G, Pudifin S (2010) Bill of rights Jurisprudence. Annual Survey of South African Law, pp 98–131 Hardin G (1968) The tragedy of the commons. Science 162:1243–1248 Khunou SF (2009) Traditional leadership and independent Bantustans of South Africa: some milestones of transformative constitutionalism beyond Apartheid. Potchefstroom Electr Law J 12:81–125 Pienaar GJ (2015a) The effect of the original acquisition of ownership of immovable property on existing limited real rights. Potchefstroom Electr Law J 18:1483–1484 Pienaar JM (2002) The housing crisis in South Africa: will the plethora of policies and legislation have a positive impact? South Afr Public Law J 17:336–370

412

J. Pienaar

Pienaar JM (2015b) Land reform and housing: reaching for the rafters or struggling with foundations? South Afr Public Law J 30:1–25 Pienaar JM (2017) The battle of the Bakgatla-Ba-Kgafela community: access to and control over land. Potchefstroom Electr Law J 2:1–31 Van der Walt AJ (2008) Normative pluralism and anarchy: reflections on the 2007 term. Const Court Rev 1:77–120 Van der Walt AJ (2017) Property law in the constitutional democracy. Stellenbosch Law Rev 28: 13–33 Van Wyk J (2010) The role of local government in evictions. Potchefstroom Electr Law J 14:50–62

Books and Chapters Badenhorst PJ, Pienaar JM, Mostert H (2003) Silberberg and Schoeman’s the law of property, 4th edn. Butterworths, Durban Bennett TW (2004) Customary law in South Africa. Juta, Cape Town Carey Miller D (1986) The acquisition and protection of ownership. Juta, Cape Town Carey Miller D, Pope A (2000) Land title in South Africa. Juta, Cape Town Chirwa DM (2009) Child poverty and children’s right of access to food and basic nutrition in South Africa. Community Law Centre, Cape Town Currie I, De Waal J (2005) Bill of rights handbook. Juta, Cape Town Du Bois F (ed) (2007) Wille’s Principles of South African law, 9th edn. Juta, Cape Town Du Plessis J (2012) The South African law of unjustified enrichment. Juta, Cape Town Du Plessis W, Pienaar JM (2018) Illegal mining: the continued struggle for mineral resources, communities and the environment. In: Rautenbach C (ed) In the shade of an African baobab. Juta, Cape Town, pp 79–105 Du Toit F (2007) South African trust law principles and practice, 2nd edn. LexisNexis, Durban Himonga C, Nhlapo T (eds) (2014) African customary law in South Africa. Oxford University Press, Cape Town Liebenberg S (2010) Socio-economic rights: adjudication under a transformative constitution. Juta, Cape Town McLaren D, Moyo B, Jeffrey J (2015) The right to food in South Africa: an analysis of the content, policy effort, resource allocation and enjoyment of the constitutional right to food. Oxfam, London McLean K (2007) Housing. In: Woolman S et al (eds) Constitutional law of South Africa. Juta, Cape Town Mostert H (2012) Mineral law: principles and policies in perspective. Juta, Cape Town Mostert H, Pope A (eds) (2010) The principles of the law of property. Oxford University Press, Cape Town Mostert H, Pienaar JM, Van Wyk J (2010) Land. In: Joubert WA et al (eds) Law of South Africa, vol 14. LexisNexis, Durban, pp 4–251 Muller G, Brits R, Pienaar JM, Boggenpoel Z (2019) Silberberg & Schoeman’s law of property, 6th edn. LexisNexis, Durban Pienaar GJ, Horn JG (2019) Sectional titles and other fragmented property schemes. Juta, Cape Town Pienaar JM (2014) Land reform. Juta, Cape Town Pienaar JM (2018) Customary law and communal property in South Africa: challenges and opportunities. In: Xu T, Clarke A (eds) Legal strategies for the development and protection of communal property. British Academy, London, pp 127–151 Quinot G (ed) (2015) Administrative Justice in South Africa. Oxford University Press, Cape Town Rautenbach C (ed) (2018) Introduction to legal pluralism. LexisNexis, Durban

Property Meeting the Challenges of the Commons in South Africa

413

Silberberg H, Schoeman J (1983) Silberberg and Schoeman’s law of property, 2nd edn. Butterworths, Durban Thompson H (2006) Water law. Juta, Cape Town Van der Merwe CG (1989) Sakereg, 2nd edn. Butterworths, Durban Van der Merwe CG (2014) Things. In: Joubert WA et al (eds) Law of South Africa, vol 27. LexisNexis, Durban, pp 3–349 Van der Walt AJ (2010) The law of neighbours. Juta, Cape Town Van der Walt AJ (2012) Property and constitution. Pretoria University Law Press, Pretoria Van der Walt AJ, Pienaar GJ (2016) Introduction to the law of things, 7th edn. Juta, Cape Town Van Wyk J (2012) Planning law. Juta Cape, Town

Other Binzana-Tutu D (2008) Traditional leaders in South Africa: yesterday, today and tomorrow. MPhil, University of Cape Town

Property Meeting the Challenge of the Commons in Spain Elena Sánchez Jordán and Andrés González Sanfiel

Abstract In spite of a rich historical tradition of common goods—such as irrigation communities—there is no concept in Spanish law that covers all the different elements of the commons. The Spanish Constitution and the Civil Code contain references to goods that satisfy fundamental needs and thus are not exchangeable on the market. Moreover, the Constitution explicitly protects rights that are relevant for a discussion about the commons such as the right to health care, access to culture, and the right to enjoy an environment suitable for personal development. Spain does not evidence any deep academic debate about the commons, although interesting contributions have been made by Spanish legal scholars. There has also been a wide circulation of topical foreign work, some of which has been translated into Spanish.

1 Questionnaire: Part I 1.1

What Legal Categories in Your Legal System May More Closely Correspond to the Notion of the Commons as Deployed in the Introduction?

If we consider the commons as they have been defined in the introduction (“anything a community recognizes as capable of satisfying some real or fundamental need outside of market exchange”) and we also take into account that they are neither private nor public, it is quite difficult to find a category in the Spanish legal system that matches these requirements. Nevertheless, both the Civil Code (CC) and the Spanish 1978 Constitution make reference to goods capable of satisfying some real or fundamental needs that are outside of market exchange when they list some of the goods that belong to the

E. Sánchez Jordán (✉) · A. González Sanfiel University of La Laguna, Tenerife, Spain e-mail: [email protected]; asanfi[email protected] © The Author(s), under exclusive license to Springer Nature Switzerland AG 2023 U. Mattei et al. (eds.), Property Meeting the Challenge of the Commons, Ius Comparatum - Global Studies in Comparative Law 59, https://doi.org/10.1007/978-3-031-25218-1_12

415

416

E. Sánchez Jordán and A. González Sanfiel

public domain (in the Civil Code, after distinguishing between private1 and public goods). Other important references may be found amongst the Governing Principles of Economic and Social Policy contained in Chapter III, Title I, of the Spanish Constitution (Arts. 39 and ff.). It is interesting to underline that amongst the rights considered by such chapter, we can find the right to health protection (Art. 43), the right of access to culture (Art. 44), the preservation and promotion of the historic, cultural and artistic heritage (Art. 46), the right to enjoy an environment suitable for personal development (Art. 45) and the right to decent and adequate housing (Art. 47). The reference to public goods needs some further comments; first, because Arts. 339 and 340 CC make a new distinction, now regarding only public property. On one hand, Art. 339 CC refers to public domain (dominio público), a category that includes goods for public use such as roads, rivers, ports, bridges, riverbanks or shores, amongst others, as well as goods destined to any public services or to the fostering of national wealth, such as city walls, fortresses and other civil works for the defence of the territory, and mines, until the granting of a concession thereon, while Art. 132.2 of the Spanish Constitution declares that the public domain includes, in any case, “coastal areas, beaches, territorial waters and natural resources of the economic zone and the continental shelf”, setting previously that public domain is inalienable, imprescriptible and not subject to attachment or encumbrance. On the other hand, Art. 340 CC establishes that the remaining goods belonging to the State are private property—the so-called patrimonial goods (bienes patrimoniales)—which are public alienable goods, not devoted to public use nor to public services. This distinction is also contained in Art. 4 of Act 33/2003, of 3rd November, on Public Administrations’ Heritage (Ley 33/2003, de 3 de noviembre, del Patrimonio de las Administraciones Públicas). It must also be taken into account that Art. 128.2 of the Spanish Constitution provides that “Essential resources or services may be restricted by law to the public sector . . . ”, while Art. 132 of the Constitution refers to public domain, communal goods (category that has also been translated as “community property”), National Heritage and patrimonial goods, hence public goods have been classified, according to the Constitution, in three types: (1) those restricted by law to the public sector (Art. 128.2 Constitution); (2) patrimonial goods belonging to the Public Administration (Art. 132.2

1 Chapter III of Title I of Book II of the Spanish Civil Code regulates the different kinds of goods depending on its owners. Art. 338 distinguishes between private and public property, while it makes no reference to commons. The former category refers to goods owned by natural or legal private persons while the latter refers to the ones owned by public legal persons (i.e. State, Autonomous Communities, municipalities or other public administrations). Art. 348 CC defines ownership as the right to enjoy and dispose of a thing, without greater limitations than those set forth in the laws, declaring also that “The owner shall have an action against the holder and the possessor of the property to claim it”, while Art. 33 of the Constitution states that “1. The right to private property and inheritance is recognized. 2. The content of these rights shall be determined by the social function which they fulfill, in accordance with the law.”

Property Meeting the Challenge of the Commons in Spain

417

Constitution); and (3) public domain, communal goods and National Heritage (Art. 132).2 Special attention will be paid in the following paragraphs to communal goods (bienes comunales), as they have specific characteristics that bring them quite close to the commons, even if they are considered (at least by statutory provisions and by some rulings of the Spanish High Court, Tribunal Supremo) as a kind of public (domain) property. There are several examples of community customary use of lands, goods and of some natural resources that will be mentioned below.

1.1.1

Legal Mentions to Communal Goods

The Spanish Constitution makes a specific reference to communal goods in its Art. 132.1, that declares that community property (as well as public domain) shall be regulated by law. Even if communal goods (or community property) are mentioned together with public domain, it has been considered both by literature and by the Constitutional Court that these are different categories.3 In fact, it has been said that communal goods are a sort of third (or special) kind of public property,4 because while there is a clear distinction between public domain and patrimonial (alienable) public goods, communal goods belong to neither of these types. Nevertheless, the Spanish Supreme Court has sometimes identified communal goods with public domain goods.5 It seems that communal goods emerged in Spain soon after the resettlement that took place during the first centuries of the Spanish Reconquest,6 when Castilian (catholic) kings granted land to collective groups of people to encourage new settlements, while over time allocation of land stopped to be collective but even them some plots were given to the communities.7 Art. 343 CC states that goods belonging to provinces and municipalities are divided into “public use goods” (which are considered synonymous of communal goods) and patrimonial goods while Art. 344 CC provides us with some examples of such “public use goods”: provincial and neighborhood parks, squares, streets, public

2

Parada (2004), p. 10. Sainz Moreno (1999), pp. 448–449. Ruling of the Constitutional Court 4/1981 of 2nd February declared that communal goods have a special legal nature: this explains why Art. 132.1 of the Constitution refers specifically to such category. 4 Parada (2004), p. 48 considers that communal goods are a sort of tertius genus that can only be owned by municipalities. Following Sainz Moreno (1999), p. 499, also minor local entities could own communal goods. 5 For instance, Rulings (all of them of the Supreme Court) of 16th June 1997 (RJ 1997\4823) and 14th November 1995 (RJ 1995\8567). Instead, Ruling of 19th July 1989 (RJ 1989\6025) declares that public domain goods and communal goods are not exactly the same, while Rulings of 11th November 1986 (RJ 1986\6251) and 9th February 1985 (RJ 1985\1007) declare that communal goods are comparable to public domain goods. 6 Reconquest (Reconquista) is the name given to the period from the eighth to the fifteenth century in which Spanish kings recovered lands that had been occupied by Muslims. 7 Nieto (1964), pp. 54–58 and 101 ff. 3

418

E. Sánchez Jordán and A. González Sanfiel

fountains and waters, promenades and general service public works paid by the same villages or provinces. A specific case of communal goods is the one referred to as the communal pastures over public land, mentioned in Art. 601 CC and ruled by customary law and by the Local Regime statutory provisions that will be considered in the following paragraphs. If we take into account that, accordingly to the Constitution, communal goods must be necessarily regulated by law and that following the Civil Code these communal goods can be only owned by local entities, the rule that provides us with a concept of communal goods is the Act 7/1985, of 2nd April, on the Foundations of the Local Regime (Ley de Bases de Régimen Local). Art. 79.3 of Act 7/1985 establishes that public domain goods are those destined to a public use or public service while common goods are those whose use pertains to the community of locals (Tienen la consideración de comunales aquellos cuyo aprovechamiento corresponda al común de los vecinos). Art. 80 of Act 7/1985 states that communal goods and the rest of public domain goods are inalienable, imprescriptible and are not subject to attachment or encumbrance neither to taxation. In such Act we find no provisions about ownership of communal goods, so we must take into consideration Art. 2.4 of the Regulation on the Local Entities’ Goods (Royal Decree n° 1372/1986, of 13th June, Reglamento de Bienes de las Entidades Locales), that declares that communal goods can only be owned by municipalities or minor local entities, thus excluding provincial or State ownership over these goods. One of the scholars who has most deeply studied the communal goods affirms that historically common goods belonged to a “community of local residents” (el común de los vecinos): neither to the municipality nor to the residents, but to the community of residents, because when communal goods appeared (around the twelfth century, and even before) municipalities didn’t exist yet.8 Over time they were allocated to municipalities (initially as patrimonial goods and later on as public domain goods) by statutory provisions dealing with the local regime, but nevertheless it has been said that communal goods’ ownership is not strictly municipal and that there is a kind of shared or concurrent domain over them between municipality and local residents.9 The municipality has the faculty of regulating the use of communal goods (Art. 95 Regulation on the Local Entities’ Goods10) while the local residents (better, the community of local residents) have the right to access to communal uses of such goods (Art. 18.1.c Act 7/1985). 11 The legal regime of communal goods must be completed with the reference to Arts. 75 ff. Royal Legislative Decree (RLD) 781/1986, of 18th April, on Standing 8

Nieto (1964), pp. 265 and 266. Nieto (1964), pp. 269 ff. In this sense, also Rulings of the Spanish Supreme Court of 7th June 2012 (RJ 2012\7286), 15th March 1980 (RJ 1980\2195), 18th May 1982 (RJ 1982\3964), 31st December 1986 (RJ 1986\1696), 30th April 1987 (RJ 1987\4768), 24th January 1989 (RJ 1989\430) and 8th November 1977. 10 This article declares that each kind of use will be subject to municipal ordinances or customary uses, or, in some cases, to regional rules issued by the Autonomous Community. 11 Sainz Moreno (1999), pp. 499 and 500. 9

Property Meeting the Challenge of the Commons in Spain

419

Provisions on Local Regime (Texto refundido de las disposiciones legales vigentes en materia de régimen local). Such rules deal with the management and with the way of using and enjoying communal goods, that should be collective or communal (Art. 75.1). At the same time, this RLD declares the possibility to deprive a good of its communal nature if it has not been used in a collective or communal way for more than 10 years (Art. 78). Therefore, there are two concepts of communal goods: the formal one, that comprises the goods belonging to public domain (municipal-owned goods), used by local residents and subject to the rules on Local Regime, and the informal or atypical one, referred to those cases in which some of the already mentioned characteristics are lacking12 (e.g. goods owned and used by a local community,13 a very particular case that will be considered below). Hence, besides the communal goods or amongst the atypical communal goods, there are some special types of common property in the Spanish system: the common local woods (montes vecinales en mano común), regulated by Act 55/1980, of 11th November, that declares that the right of ownership, the management, the use and the power of disposal over such woods belong to local communities.14 It must be noticed that both the ownership and the right of use belong to a community, thus they are not public goods even if they share the basic characteristics of public domain (following Art. 2 Act 55/1980 they are inalienable, imprescriptible, not subject to attachment or encumbrance, as well as indivisible) and, consequently, they cannot be considered communal goods15 but a different legal category that perhaps appears as a historical relic of a commons. Traditional irrigation communities in Southeastern Spain and some other institutions that exist in rural areas, especially in Autonomous Communities with their own Civil Law, are further examples of common property.

1.1.2

Some Examples of Lands and Resources Used (and Often Owned) by Local Communities

There are several well-known examples of collective use of lands and natural resources by local rural communities in Spain. Amongst the most popular (and studied) cases, we have those in Galicia, Navarra and Aragón, but it’s worth mentioning also some cases in the Canary Islands. Ostrom also mentions the irrigation communities of Valencia, Murcia and Alicante as a case of common pool resources,16 but little attention has been paid to these

12

Nieto (1964), pp. 301–304; Colom Piazuelo (2015). Nieto (1964), p. 407. 14 The origin of such institution is not clear, but for the fact that it is related to the basic needs of local residents in very poor rural regions of Spain, especially in Galicia. Some possible explanations in Nieto (1964), pp. 409 ff. and in Raposo Arceo (1966), pp. 61 ff. 15 Nieto (1991), pp. 91–97. 16 Ostrom (2015), pp. 135 ff. 13

420

E. Sánchez Jordán and A. González Sanfiel

institutions by Spanish legal scholars.17 Nevertheless, it is another example of collective use of a finite resource such as water. It seems that they have customary origin and appeared in Levante area and Aragón around the fifteenth century. Such communities were regulated by the Spanish Water Act of 1866 that extended them to the rest of Spain, compelling all water users to create communities (today the same duty is established in Art. 81.1 RLD 1/2001, of 20th July, on Water). These communities are ruled by their own ordinances. In Murcia and Valencia there are particular courts to solve disputes amongst commoners (Consejo de Hombres Buenos de Murcia18 and Tribunal de Aguas de la Vega Valenciana19), that have been declared “traditional and customary Courts” by Arts. 19.3 and 19.4 Act 6/1985, of 1st July, on the Judiciary Power. In Galicia we could find, in the nineteenth century, around 2 million hectares of common local woods (as we defined them before) that have decreased to around 640,000 ha in the last years.20 They are regulated by Act (enacted by Galicia’s Parliament) 13/1989, of 10th October, on common local woods, that states that ownership of such woods has a “private and collective” nature and belongs (as well as its use) to a community of local residents (Art. 3). With regard to Navarra, it must be pointed out that its Fuero Nuevo (passed by Act 1/1973, of 1st March), a sort of Code that contains the traditional Private Law institutions of this Autonomous Community, regulates different types of collective uses of customary origin, generally linked to municipal ownership in rural areas, such as the corraliza (Art. 379), comunidad facera (Art. 386), helechales (Art. 388), dominio concellar (Art. 391) and vecindad forana (Art. 392). Most of such communal uses refer to woods, pastures, water as well as other resources linked to forests. The most important examples of collective uses of communal goods are those of the Valle de Salazar21 (North-East Navarra) and the Bárdenas Reales22 (South Eastern Navarra), both of them regulated by their own ordinances. Further examples of communal goods or collective use of (in these cases) municipally owned goods can be found in Aragón,23 where the king or the lord granted land to people in the eleventh and twelfth centuries as a way of ensuring resettlement of areas that had previously fallen into Muslim hands. The ownership of those lands was municipal while the right to use and enjoy them belonged to the local residents24 who used them as pastures or as land to cultivate. Currently we can find some cases, again in rural areas (e.g. Calamocha, Calatorao, Ejea de los Caballeros),

17

We can quote Bolea Foradada (2016). More information in http://www.consejodehombresbuenos.es/. Accessed 10 Jul 2020. 19 Further details in http://www.tribunaldelasaguas.org/es/. Accessed 10 Jul 2020. 20 García Quiroga (2013), p. 161. 21 More information in Martín Duque (1963) as well as Hernández Hernández (1990). 22 More details in Razquín Lizárraga (1990). 23 Embid Irujo (1993). 24 Faus Pujol and Rubio Gracia (1984), pp. 78–79. 18

Property Meeting the Challenge of the Commons in Spain

421

mainly referred to as pastures and land to cultivate that are regulated by their own ordinances (given by the municipality). As far as the Canary Islands are concerned, the use of water is an interesting example of a collectively-used and community-owned resource, granted to local residents by the Spanish Kings after the Conquest of the Islands (that ended in 1496). Such ownership and usage ended in two different ways: in some cases, because water disappeared, and in other cases, because the Public Administration or private citizens (or sometimes companies) usurped a resource that belonged to local communities.25

1.1.3

About Categories That Are Close to the Commons

In summary, amongst the long list of public domain goods there are some categories “capable of satisfying some real or fundamental need outside of market exchange”, even if they are public (domain) goods. This is the case, at least, for coastal areas, beaches, territorial waters and natural resources of the economic zone and the continental shelf, as well as rivers and riverbanks. Besides them, some other elements that could satisfy fundamental needs outside of market exchange are present in the aforementioned Governing Principles of Economic and Social Policy (Chapter III, Title I, of the Spanish Constitution): at least, in the rights to enjoy environment26 and to the preservation and promotion of the historic, cultural and artistic heritage. With regard to such constitutionally enshrined rights, it can be said that many statutes dealing with natural resources (for instance, those on Natural Heritage and Biodiversity, on the Seashore and also the Canary Islands’ Water Act), as well as the one devoted to the Historical Heritage’s protection, declare the need to protect such resources and goods in order to satisfy the interests of present and future generations.27 Most of the communal goods that still exist in the Spanish system (basically, pastures, cultivable land, woods and also public paths and public ways) serve to satisfy real or fundamental needs. The same happens with the common local woods, 25

Macías Hernández (1990), p. 121; Sánchez Jordán (2000), pp. 4032 ff. Regarding the constitutional right to enjoy environment and the legal standing to stand up for environment, Delgado Piqueras (1993), pp. 49 ff. 27 For instance, Act 42/2007, of 13th December, on Natural Heritage and Biodiversity mentions the need to preserve natural resources for future generations (Preamble, Art. 3.36); the Preamble of Act 22/1988, of 28th July, on the Seashore, states that “the legislator has the inescapable responsibility to protect the integrity of these goods [with reference to the seashore], to preserve them as a common property [como propiedad de todos, in Spanish] and to leave them in this condition to future generations”. The Canary Islands’ Act 22/1990, of 26th July, on Water, after declaring that water in this region is a scarce resource, states that all the water is subordinate to the general interest (Art. 3) and that water resources must be regulated in order to protect not just its quality but its present and future availability (Art. 4). Art. 1 of Act 16/1985, of 25th June, on the Spanish Historical Heritage, states that the statute’s purpose consists of the protection, increase and transfer to the future generations of such Historical Heritage. 26

422

E. Sánchez Jordán and A. González Sanfiel

the traditional irrigation communities and some other commonly owned and used goods.

1.2

Is There Today or Was There in the Past a Concept of the Commons in Your Legal System? In the Affirmative, Is It Statutory, Jurisprudential, Doctrinal or Customary?

The historical references to common things are very similar to those of the continental systems influenced by Roman Law (mainly France and Italy), as we share the same legal background. There are some particular rules that deserve special attention. First of all, the Partidas de Alfonso X El Sabio (thirteenth century) which mentioned some goods that commonly belonged to all living creatures (a sort of Castilian version of the res communis omnium),28 or that could be collectively used by anybody.29 The traditional and customary irrigation communities, born in Eastern Spain (Levante) around the mid-fifteenth century or even before (probably under the Muslims) that are still active today are also peculiar to Spain. Such institutions have been able to solve problems related to water scarcity for agriculture for centuries through the resource’s collective use and under their own rules and courts. As another peculiarity of the Spanish legal system (and still present and quite important in certain rural areas in Northwestern Spain), we must refer to the common local woods, considered a case of Germanic co-ownership (Art. 3 Galicia’s Act 13/1989), although neither their origin nor such way of organizing this particular kind of goods is clear.30

28 Partida 3, 28, 3: “Las cosas que comunalmente pertenecen a todas las criaturas que viven en este mundo son estas: el aire y las aguas de la lluvia y el mar y su ribera, pues cualquier criatura que viva puede usar de cada una de estas cosas según le fuere menester, y por ello todo hombre se puede aprovechar del mar y de su ribera, pescando y navegando y haciendo allí todas las cosas que entendiere que a su provecho serán”. This rule declares the common property of all in the world’s creatures over air, rainwater, sea and the seashore. 29 Partida 6, 28, 3: “Los ríos y los puertos y los caminos públicos pertenecen a todos los hombres comunalmente, en tal manera que tanto pueden usar de ellos los que son de otra tierra extraña, como los que moran y viven en aquella tierra de donde son; y comoquiera que las riberas de los ríos sean, en cuanto al señorío, de aquellos cuyas son las heredades a las que están ayuntadas, con todo eso todo hombre puede usar de ellas ligando a los árboles que allí están sus navíos y adobando sus velas en ellos y poniendo allí sus mercadurías, y pueden los pescadores poner allí sus pescados y venderlos, y enjugar allí sus redes, y usar en las riberas de todas las otras cosas semejantes de estas que pertenecen al arte o al menester por los que viven”. This section deals mainly with some goods’ usage: it states that rivers, ports and public paths belong collectively to all human beings in a way such that they could be used not only by those who live in such area but also by foreigners. 30 Raposo Arceo (1966), pp. 61–64.

Property Meeting the Challenge of the Commons in Spain

423

Today in the Spanish legal system there is not a concept of the commons as they have been characterized in the introduction, although we can find the irrigation communities and the common local woods, which we have already mentioned and described. The former category is considered in the Spanish Water Act while its organization is regulated by the communities’ ordinances; the latter are regulated by statutes as well as by each of the communities’ ordinances. These categories are only partially coherent with the commons definition: irrigation communities deal with collective usage of water, which is considered a natural public domain good; common local woods are privately owned, even if its collective usage is one of its main characteristics.

1.3

Is the Commons Today a Topic of Academic Debate in Your Legal System: And in the Affirmative in What Context?

There is not a deep academic debate, at least not in the legal field, with some exceptions. There is a full issue of the Anuario de la Facultad de Derecho de la Universidad Autónoma de Madrid (n° 16, 2012),31 devoted to the protection of global legal (or public) goods (La protección de bienes jurídicos globales) with 19 contributions that contain several approaches from different disciplines (Public and Private Law, History of Law, Private and Public International Law, etc.), but not all of them are coherent with the commons’ concept we are dealing with. There are also some translations of works by foreign legal scholars32 as well as a couple of contributions by national legal scholars.33 Some of them are of deep interest even if it seems they have not caught the mainstream’s literature attention.34 Recently, some articles on the governance of global commons in International Public Law have been published.35 In Spain we can find some interesting academic contributions about the notion of the commons, mainly by economists.36 Amongst them, important is the article by 31

This issue was coordinated by an International Public Law and an International Private Law professor (Espósito Massicci C and Garcimartín Alférez FJ). 32 There is the Spanish translation of Ugo Mattei’s Beni comuni. Un Manifesto: Bienes comunes. Un manifiesto (translated by Pisarello G), published by Trotta, Madrid in 2013. An article by Arena about the shared management of commons has been recently published in Spain (2017): Un nuevo derecho para la administración compartida de los bienes comunes. La experiencia italiana. Revista de administración pública 203: 423–41. 33 Gordillo (2006), pp. 11–19. More recently, Tornos Mas (2017). 34 Moreu Carbonell (2003), pp. 435 ff. 35 Juste Ruiz (2018) and De Faramiñán Gilbert (2017). 36 Sociologists, anthropologists and political scientists have also contributed to the debate on the commons. See, for instance, Chamoux and Contreras Hernández (1996). More recently, Subirats and Rendueles (2016).

424

E. Sánchez Jordán and A. González Sanfiel

Aguilera Klink, a professor of Ecological Economics, published under the title “El fin de la tragedia de los comunes” (the end of the tragedy of the commons). In this paper Klink criticizes Hardin’s Tragedy of the Commons and tries to show us that “common property” in the sense in which he understands this institution could be a very useful example of voluntary cooperation which is necessary to improve the solution of problems that arise when dealing with natural resources, or, even better, with ecosystems’ management.37 In his opinion, common property is something different from private and public property, and it is also different from free access. He defines common property, following Ciriacy-Wantrup and Bishop, by two main characteristics: (1) it refers to a distribution of property rights in resources in which a number of owners are co-equal in their rights to use the resource, rights that are not lost through non-use; and (2) the potential resource users who are not members of a group of co-equal owners are excluded.38 Klink adds a third element: (3) the access to ownership does not require or depend on the acquisition of such resource.39 If we agree with this concept of common property, the common local woods (montes vecinales en mano común) as they are regulated by Act 55/1980 can be considered a case of commons, as well as the irrigation communities. Even if they are not strictly referred to as commons, we can also cite some important books on communal goods.40 There are also interesting contributions that deal with common local woods41 which probably represent, as we said before, the closest category to commons (together with the traditional irrigation communities).

1.4

Is There Any Kind of Public Property in Your Legal System That Is Absolutely Not Alienable?

In principle, the so called “natural public domain” goods which are those with certain physical or natural conditions (such as rivers, seashores and beaches, i.e., those enumerated by Art. 132.2 Constitution)42 but also those that, even if man-made, are destined to public use (such as roads, channels, ports or bridges),43 are not alienable (as well as imprescriptible and not subject to attachment or

37

Aguilera Klink (2006). Ciriacy Wantrup and Bishop (1975), pp. 714 and 715. 39 Aguilera Klink (2006), pp. 118 and 119. 40 Especially, the one written by Nieto (1964). About some local communal goods we can quote Gallego Anabitarte (1993); Embid Irujo (1993). 41 Some of the most relevant books are: Nieto (1991), Bocanegra Sierra (1986), and Díaz Fuentes (1999). 42 In this sense, Ruling 227/1988 of 29th November, of the Constitutional Court, 14th Fundamento Jurídico (Legal Foundation of the Ruling). 43 Parada (2004), p. 41. 38

Property Meeting the Challenge of the Commons in Spain

425

encumbrance) following Art. 6.a) Act 33/2003. The inalienability rule is applicable to the second group of goods as long as they are destined (afectados) to public use while it becomes inapplicable in case they were declassified (desafectados), because they lose the public domain condition (Art. 69 Act 33/2003). Instead, it is always applicable to the first group unless they lose their physical conditions through their “degradation”, which is a quite infrequent case. A case of degradation that could result in the loss of the qualification as public domain is established by Art. 4.5, together with Art. 18 Act 22/1988, on the Seashore, and is linked to the loss of the good’s natural conditions. In this sense, Act 2/2013, of 29th May, amending Act 22/1988, has excluded certain seashore areas from the public domain because they have been occupied by population settlements (seventh additional provision) and thus have lost their natural conditions.44 Another example might be the one contained in Art. 10 Act 3/1995, of 23th March, on livestock trails (Ley de vías pecuarias), that allows the Autonomous Communities to declassify the trails as public domain in case they are no longer suitable for the transit of stock nor adequate to the compatible activities allowed by the Act.

1.5

Are There Remedies in Your Legal System for Someone to Challenge in Court a Government That Decided Privatization of the Commons?

There are no formal remedies under the Spanish legal system to challenge the privatization of public domain goods unless the privatization’s procedure infringed the applicable legal rules and therefore the decision could be considered void or invalid following Arts. 47 and 48 of Act 39/2015, of 1st October, on the Public Administrations’ Procedure. In such cases it would be possible to bring an action against the government’s decision in the administrative courts.45 We also note the “public action” established in several statutes dealing with public domain goods or public services as a means granted to citizens in order to demand protection towards public domain goods to administrative bodies or courts (e.g., Art. 8.2 Act 16/1985, on Historical Heritage,46 and Art. 109 Act 22/1988, on 44

The Annex of Act 2/2013 provides us with the list of excluded goods together with its plans, where we can verify the extent of the seashore’s invasion by human settlements. 45 The Ruling of the Supreme Court of 21st July 1989 declares invalid the disqualification as public domain of a public local path because the compulsory procedure was not respected and because the transformation of the public domain good into a patrimonial one was not justified on grounds of public interest. The Ruling of the Supreme Court of 26th November 1990 declares that the disqualification of public domain goods needs to follow the statutory procedure. 46 Taking into account that in Spain the Autonomous Communities have legislative competences on historical heritage, most of them have passed Acts protecting heritage, and almost all of them include this public action. There are several Rulings (of different courts) that deal with this public

426

E. Sánchez Jordán and A. González Sanfiel

the Seashore47). The same kind of action is given to citizens by the Acts dealing with the use of land and town planning.48 By protecting spatial planning, such possibility ends by preserving the environment too. Quite interesting (and used frequently, as it results from case law) is the possibility provided by Art. 68 of Act 7/1985. This rule states that local entities have the duty to bring legal actions to protect its goods and gives local residents the chance to demand local government to bring such actions. It also establishes that if the local entity wouldn’t act, local residents could bring such actions in court by themselves on behalf of the local entity49 (through the so-called acción vecinal that could be translated as “neighborhood action”). Some strong grass-roots movements have been born to try to stop already decided public domain goods or public services privatizations. A famous case is the Platform against the Canal de Isabel II (a public company that managed Madrid’s urban water) privatization that appeared in Madrid to challenge the government’s pretended privatization of the management of Madrid’s water public service. It is a case dealing with privatization of the management of a public resource that for more than 150 years had been run by a public company while in 2008 the regional government (headed by the popular Esperanza Aguirre) decided to replace the public company by a stock corporation. Many environmentalist and social groups, some political parties, residents’ associations as well as some labor unions got together and created a Platform to inform society about the situation, to mobilize citizens against the privatization and to promote all kind of institutional and legal actions to stop this proposal (more information in http://www.plataformacontralaprivatizaciondelcyii. org/). Nevertheless, the privatization took place but the Platform is still active and demands more transparency and information with regard to the management of urban water’s cycle in Madrid. Its last initiatives deal with the Canal de Isabel II strategic plan.

action. Amongst many others we cite the Ruling of the Supreme Court of 12th May 2010 that ruled that it was public the action to protect the historical heritage of Valencia’s Community. 47 E.g. the Ruling of the Supreme Court of 24 June 2016 confirms the Ruling of Galicia’s High Court in a case in which an environmentalist movement challenged an administrative decision that permitted a building in an easement for the protection of the coastal public domain. 48 Land Law and town planning are ruled by national and regional Acts. The public action is established, for instance, in Art. 62 of the Royal Legislative Decree 7/2015, of 30th October, on Land Law (which is applicable in the whole country). 49 For instance, the Court of Appeal of Burgos, in its Ruling of 21st June 2016, held that a local resident had standing (under Art. 68 Act 7/1985) to sue another resident who was building in a public path in a case in which the municipality remained passive. The Ruling of the Court of Appeal of Santander of 4th June 2012 accepted the action brought by a resident in order to protect the public domain (a public path that had been occupied by another citizen). The Ruling of the Supreme Court of 14th May 2001 declared that even someone who is not registered in the municipality has standing to go to court in order to protect a public path if the municipality doesn’t defend its public domain under Art. 68 Act 7/1985.

Property Meeting the Challenge of the Commons in Spain

1.6

427

Are There Remedies in Your Legal System for Someone to Challenge in Court a Government That Decided Nationalization of the Commons?

Nationalization as such is not considered in the Spanish legal system. The only possible case of transforming ownership of private (not commons) goods into public ones is expropriation (Art. 33.3 Constitution: “No one may be deprived of his or her property and rights, except on justified grounds of public utility or social interest and with a proper compensation in accordance with the provisions of the law”). Expropriated owners usually bring actions to the administrative courts to challenge the governmental decision. Some scholars have considered the possibility established by Art. 128.2 Constitution (“Essential resources or services may be restricted by law to the public sector, especially in the case of monopolies. Likewise, intervention in companies may be decided upon when the public interest so demands”) as a sort of nationalization.50 Two significant cases, to a certain extent related with this question, were those of the Water Act (1985) and the Seashore Act (1988), and decided “publification” of water and seashore (i.e., that all of the water and all the Spanish seashore would become public domain goods, as before the 1978 Constitution both resources could be private), following Art. 132.2 Constitution. Many appeals were brought to the Constitutional Court (by governments of different Autonomous Communities, as well as by members of the Houses of Parliament) against such Acts on unconstitutionality grounds (in most of them, the infringement of Art. 33 of the Constitution was cited because claimants held that no compensation for the previous private owners was considered) but the Court ruled the constitutionality of the transformation of water and seashore into public domain goods.51 Another meaningful case is that of Act 8/1984, of 3rd July, on the Agrarian Reform in Andalusia. Its Article 3 stated that in case of infringement of the property’s social function, the Autonomous Community could decide the expropriation of the ownership or the usage of the (privately owned and misused) land or impose compulsory improvements plans over it. This Act was challenged in the Constitutional Court that ruled its constitutionality in its Ruling 37/1987, of 26th March.52 In the same vein Act 8/2004, of 24th June, on the public protection of housing in Navarra, Art. 33, stated that a house could be expropriated due to the infringement of property’s social function (after neglecting three times the order to

50

De Pablo Contreras (2011), p. 1414. Ruling 227/1988 of 29th November, of the Constitutional Court, on the Act 29/1985, of 2nd August, on Water, and Ruling 149/1991, of 4th July, of the Constitutional Court, on the Act 22/1988, of 28th July, on the Seashore. The latter declares, in its Fundamento Jurídico 8, that the seashore is a natural public domain good and belongs to the res communis omnium category. 52 An excellent study about property rights and on the status of Agrarian land, with several references to the Andalusian Act and to the Constitutional Court’s Ruling, was written by Barnés Vázquez (1988). 51

428

E. Sánchez Jordán and A. González Sanfiel

use the protected house as permanent residence); this Act was repealed by Act 10/2010, of 10th May, of the right to housing in Navarra, that again establishes the possibility to expropriate homes in case of infringement of the property’s social function (e.g. by keeping the house uninhabited in the cases listed by the Act, Art. 52.2.a). Even if an appeal on constitutional grounds were brought against several rules of this Act, the Constitutional Court ruled that those dealing with expropriation were constitutional (Ruling 16/2018, of 22nd February). Act 4/2013, of 1st October, assures the fulfilment of housing’s social function in Andalusia, as its first additional provision established the possibility to temporarily expropriate the usage of homes that had been sold in foreclosure procedures in favor of the individuals who had lost such homes. Such provision was ruled as unconstitutional by Ruling 32/2018, of 12th April, of the Constitutional Court. An historical case of nationalization of commons was the conversion of communal goods (community owned and collectively used goods, see Sects. 1.1 and 1.2) into public goods, quite a long process that started when municipalities were born and communal goods were allocated to these new legal entities.53

1.7

To What Extent Private Property Is Considered a Fundamental Right in Your Legal System, and What Other Constitutional Rights Could Defeat It in a Balancing Test?

According to the Rulings of the Constitutional Court54 as well as to the opinions of several leading scholars, property is considered a constitutional but not a fundamental right in the Spanish legal system, although there is considerable debate.55 From a formal perspective there are clear differences between fundamental rights and “plain” constitutional rights, as private property is regulated in Section 2 (Rights and Duties of Citizens), Chapter II (Rights and Liberties), Title I (Fundamental Rights and Duties), of the Spanish Constitution, while what we could call “genuine

53

Nieto (1964), pp. 205 ff. Amongst the most significant ones are Rulings 37/1987, of 24th November; 67/1988, of 18th April; and 149/1991, of 4th July, that accept the definition or imposition of limits to private property and understand that there are differences amongst rights of Section 1 and Section 2 of Chapter II, Title I of the Spanish Constitution. Instead Ruling 204/2004, of 18th November, assumes that private property is a fundamental right (5th Fundamento Jurídico). 55 Property is not a fundamental right for Montés Penadés (1980), pp. 61–62; Lacruz Berdejo (1990), pp. 296–297 and 304 ff.; García de Enterría and Fernández (2004), pp. 56–60, or López López (2015a), pp. 336 and 337, as well as López López (2015b), pp. 403 ff. Instead it is considered a fundamental right by many others such as Jiménez Campo (1999), pp. 42–44; Rodríguez de Santiago (2008), p. 159. Rey Martínez (1994), pp. 182 ff. comments that property is a fundamental right because it has an essential content that is imposed to all of the public powers, including the legislative one. 54

Property Meeting the Challenge of the Commons in Spain

429

fundamental rights” are contained in Section 1 (Fundamental Rights and Public Duties) of the same Chapter and Title. Both kinds of rights differ mainly because the rights contained in Section 1 must be regulated by organic law and are protected by a remedy of amparo (recurso de amparo) that can be brought to the Constitutional Court (Art. 53.2) even by natural persons, while those established in Section 2 should be regulated by law and can only be protected by an appeal on constitutionality grounds (recurso de inconstitucionalidad) if the statute that regulates them does not respect the right’s essential content.56 Moreover, private property could be sacrificed through expropriation while fundamental rights cannot be defeated by any means. Property is a constitutional right strongly protected, and private property is considered a fundamental right by Art. 17 of the Universal Declaration of Human Rights which binds the Spanish legislator (Art. 10.2 of the Constitution). Probably a right answer needs to previously set a commonly accepted definition of fundamental right. With regard to the constitutional rights that could defeat property in a balancing test, if we take into account that property is limited (or defined) by its social function, we can find several examples of limits to private property established by statutes in order to achieve the protection of other interests considered preferential. It happens mainly with environmental and historical heritage protection, as statutes regulating natural resources, spatial planning, and historical and cultural heritage impose important limits to the owners’ faculties; hence we could conclude that in the Spanish legal system environmental values and historical heritage are occasionally preferential to private property. An illustrative example is provided by Act 22/1988, on the Seashore, that devotes an entire Title (Arts. 20–30) to the limits of ownership of land that is adjacent to the seashore in order to protect coastal public domain, imposing easements and duties to the owners of such land. Statutes on protected sites contain also further and interesting examples due to the fact that some parts of protected areas could be privately owned. In such cases, planning measures issued by administrative agencies can establish strict limits to the private owners’ powers, in order to assure the preservation of the environmental framework.57 Still with regard to protected sites, statutes also impose limitations to the power of the owner to sell the protected land: Art. 40 Act 42/2007 on Natural Heritage states that when a piece of land is declared protected space, a right of pre-emption is granted to the public agencies, so the owner loses the faculty to sell it freely. With regard to spatial planning, Act 8/1984, of 3rd July, on the Agrarian Reform in Andalusia, allows regional authorities to establish objective measures in order to obtain the best results from land and other spatial resources as well as measures to protect soil and nature, regardless who the owner is (Art. 2).

56

Against the use of these criteria in order to identify fundamental rights, Jiménez Campo (1999), pp. 20 and 21. 57 Amongst many other possible examples, Art. 107.1 Act 2/2017, of 13th July, on Land Law and Protected Sites of the Canary Islands.

430

E. Sánchez Jordán and A. González Sanfiel

As far as it concerns historical and cultural heritage, statutes impose important limits to private owners, such as the need to obtain permission to export protected historical goods that are older than 100 years (Art. 5.2 Act 16/1985, on Historical Heritage),58 or the duty to use protected historical goods according to the specific measures issued by administrative bodies in order to preserve their historical values (Art. 57 Act 11/2019, of 25 April, on the Canary Islands’ Cultural Heritage).

1.8

Private Property Is an Institution Aimed at Allowing Exclusion from Land. Is There Any Limit to Such a Power of the Owner to Exclude Justified by a Right of Access of the Private Non-owner?

Art. 33 of the Spanish Constitution protects private property, declaring that the content of property is subject to its social function and that private property can be only sacrificed in order to fulfil the general interest on justified grounds and with a proper compensation,59 while Art. 128.1 of the Spanish Constitution declares that “The entire wealth of the country in its different forms, irrespective of its ownership, is subordinated to the general interest”. Therefore, both the general interest and the social function are essential in order to decide the extension of—i.e. to define and impose limits to—property rights and can consequently justify certain restrictions to the exclusion’s faculty of the owner. The Spanish Civil Code already provides an old-fashioned example: if somebody is pursuing a swarm of bees (Art. 612 CC) which enters into another one’s property, he or she can enter into the land (following the bees) without the owner’s authorization if the land is not fenced. The absence of a fence also allows a hunter who has shot wild game that falls into a private property to enter and fetch it (Art. 22 of the Hunting Act of 1st April 1970). Some further examples of exceptions to the right of exclusion granted to the private owner are contained in statutory rules on natural resources and historical heritage. With regard to natural resources, Art. 28 Act 22/1988, on the Seashore, declares that an easement of free and public access to the sea should be imposed over the land which is contiguous to the coastal public domain; thus, if such land were

58 Exporting a cultural good without needed permission is also considered a crime by Art. 2 of the Organic Act 12/1995, of 12th December, against smuggling. The owner of Cabeza de mujer joven (a painting by Picasso) has been recently held guilty for smuggling, as he tried to export the picture without the prescriptive authorization. He has been sentenced to 18 months prison and a fine of 52.4 million euros (http://www.rtve.es/noticias/20200116/jaime-botin-condenado-18-mesesprision-contrabando-cuadro-picasso/1995674.shtml). 59 Art. 33 Spanish Constitution provides: “1. The right to private property and inheritance is recognized. 2. The content of these rights shall be determined by the social function which they fulfil, in accordance with the law. 3. No one may be deprived of his or her property and rights, except on justified grounds of public utility or social interest and with a proper compensation in accordance with the provisions of the law”.

Property Meeting the Challenge of the Commons in Spain

431

privately owned the owner must accept such easement. Public access to forests, regardless its ownership, is stated by Art. 54 bis Act 43/2003, of 21st November, on Forests, although administrative rules will establish in which cases.60 Probably the most significant case is that established by Act 16/1985, on Historical Heritage, compelling the owners of goods that have been declared “Property of Cultural Interest” (Bien de interés cultural) to allow people to visit such goods (for free) at least 4 days per month (Art. 13).61 The same duty is set by regional Acts on Historical or Cultural Heritage (e.g., Art. 30.1.c Act 9/1993, of 30th September, on Catalonia’s Cultural Heritage; Art. 69.1.d) Act 11/2019, on the Canary Islands’ Cultural Heritage; Art. 14.3 Act 14/2007, of 26th November, on Andalusia’s Historical Heritage). The importance of non-owners’ right of access to Property of Cultural Interest results from the Ruling 122/2015, of 17th July, of the Constitutional Court that declared the unconstitutionality of Art. 27 of Act 3/2013, of 18th June, on Historical Heritage of Madrid, because it didn’t ensure an effective public “right to visit” the goods classified as Property of Cultural Interest.

2 Questionnaire: Part II 2.1

Housing

John, Orri, Sekela and Satoshi, desperate to find a home at an affordable cost, together with their families (including several children) inhabit homes in a development project, suspended due to delayed authorizations. The four friends and their families work on both the buildings and the land to enhance their living conditions (for instance, by painting the walls and adding a little garden). After a couple of months, the legal manager of the land discovers the four families and attempts to remove them. The families refuse to leave and the manager brings a claim against them. In Spain this case would be probably considered an usurpación, a crime ruled by Art. 245.2 of the Spanish Criminal Code and punished with an economic penalty. This crime was established by the Criminal Code of 1995 (it didn’t exist before) to punish the occupiers’ (okupas’) movement, but its inclusion was not accepted unanimously, as some political parties considered that the occupation of empty

60

Such Act declares in its Preamble that forests could be public or private, that all of them fulfil a social function, and that they are therefore tied to the constitutional mandate that declares that statutory legislation shall define the property as well as its social function. 61 The last paragraph of the Act declares that its final purpose is to assure access to goods that belong to the Historical Heritage, as all the protection and promotion measures set by the law are directed to grant citizens to enjoy those works that are the result of people’s collective capacity. It adds that in a democratic country these goods must be properly made available to the collectivity as its enjoyment allows access to culture and that this is a secure path toward people’s freedom.

432

E. Sánchez Jordán and A. González Sanfiel

houses should not be punished.62 The first paragraph of the same article regulates the situation in which the occupiers use violence (e.g. they break a door or a window) to enter the house, but it seems not to be the case of the four families; the sanction would be higher in the latter case as such conduct is punished with prison.63 Recently, a criminal court of Barcelona decided that a lady that (together with her two children) occupied an apartment belonging to a bank was not guilty of a criminal offence and could be sued only in the civil courts following the procedure established by the Civil Procedure Code for the precario cases (Ruling of the Juzgado de instrucción number 2 of Barcelona, of 12 April 2016). This means that it is determinant to distinguish when we are in front of an usurpación and when in front of a precario to decide if criminal rules or civil rules are applicable. The civil section of the Spanish High Court has decided that there is a precario when someone continues to occupy a house (or another immovable good) after the title that allowed him/her to do so was extinguished (precario convencional), but also when somebody is occupying someone else’s immovable with no title to do so (and as a consequence of the owner’s mere tolerance),64 so it is quite difficult to distinguish these conducts. If we take into consideration criminal case law,65 it can be said that criminal courts consider that there is usurpación when someone occupies in a pacific way (without violence) an immovable, house or building that does not represent another person’s home; if it were another one’s home it would be a different crime (allanamiento de morada). Not every kind of occupation is enough: 1. The occupant must have the intention to occupy the house in a permanent way66 and not just to sleep there for a short period.

62

More references in Herranz Castillo (2000), p. 435. Art. 245. 1. Al que con violencia o intimidación en las personas ocupare una cosa inmueble o usurpare un derecho real inmobiliario de pertenencia ajena, se le impondrá, además de las penas en que incurriere por las violencias ejercidas, la pena de prisión de uno a dos años, que se fijará teniendo en cuenta la utilidad obtenida y el daño causado.2. El que ocupare, sin autorización debida, un inmueble, vivienda o edificio ajenos que no constituyan morada, o se mantuviere en ellos contra la voluntad de su titular, será castigado con la pena de multa de tres a seis meses. 64 Ruling of the Spanish High Court of 31st Dec 1992 (RJ 1992\10670). Recent Rulings of the Spanish High Court have declared that precario is a factual situation that involves (1) the free use of another one’s good over which the user has no legal possession even if he or she is using it, and (2) the lack of a title justifying possession because the user never had it or because, having had it, it has extinguished (Rulings of the Spanish High Court of 28th February 2013 (RJ 2013\2162), of 557/2013, of 19th September 2013 (RJ 2013\7428), of 1st October 2014 (RJ 2014\4613) and of 28th February 2017 (RJ 2017\605). 65 For instance, Rulings of the Court of Appeal of Badajoz, n° 120, of 15 October 2010; Madrid n° 278, of 20 February 2014; Court of Appeal of Madrid n° 522, of 5 December 2014. 66 Ruling of the Court of Appeal of Sevilla of 13 November 2003; of the Court of Appeal of Madrid of 2 July 2008; of the Court of Appeal of Cádiz n° 132, of 8 June 2010, of the Court of Appeal of Barcelona, n° 331, of 4 May 2016. Also the Spanish High Court has ruled in this sense in its decision n° 800, of 12 November 2014. 63

Property Meeting the Challenge of the Commons in Spain

433

2. The occupier has no legal title (and did not have it in the past) that allows the possession.67 By legal title courts understand (e.g. a lease contract or a commodatum that terminate, or the ownership of a house tied by a mortgage) when the ownership extinguishes after the foreclosure of the immovable good. When there is no formal title that allows someone to possession of the house, usually courts consider (and punish) such conduct as a crime; the aforementioned ruling of the Juzgado de instrucción number 2 of Barcelona of 12 April 2016 does not apply this requirement, as the lady was occupying the home without any title (nor had she a previous one). 3. The owner of the house has expressed his/her will against occupation (prior or after the occupation has taken place).68 This also means that when the house is abandoned, courts tend to consider that no crime was committed.69 4. The occupier has acted with dolus (with knowledge that the property belongs to another person and without the owner’s authorization). In recent cases occupiers have alleged “state of necessity” to justify occupation, but the courts have considered that such state did not exist as the defendant was not able to prove it. For instance, in the ruling of the Court of Appeal of Barcelona n° 331, of 3 May 2016, the occupier hadn’t asked for social subsidies even if she had the right to do it, she hadn’t asked for social housing, and she hadn’t tried to get a job even if the Social Services of the city recommended her to do so. Something similar happens in the ruling of the Court of Appeal of Cuenca n° 50, of 17 May 2015, as the defendant did not prove by any evidence that she had no option but entering into another person’s house. In Spanish Law, even if property is one of the strongest rights granted to an individual, possession is also protected through the so-called interdictos de retener y recobrar la posesión (a sort of injunction, regulated by Article 250-4 Civil Procedure Code). That said, if the owner of the building wants to evict the four families, he could choose between going to the criminal court making use of the usurpación crime (as it seems they have committed a criminal offence taking into account the requisites established by case law) or claiming in the civil court making use of the interdicto. Instead, he is not entitled to compel the families to leave or to change the lock without judicial help, because if he did so he could be sued by the occupiers in the civil courts (through an injunction that, as said before, protects also the occupiers’ possession) or in the criminal courts. After the current Civil Procedure Law 67 It the case ruled in the decision of the Court of Appeal of Ciudad Real n° 72, of 21 April 2003, the court decided it was not a crime because the occupier had the possession of the house because he was previously its owner. He lost ownership because he wasn’t able to repay the loan to the bank so he agreed with the bank a datio in solutum over the immovable to cancel the debt, but after the agreement he didn’t give possession to the bank. 68 In recent decisions of the Courts of Appeal of Barcelona (Ruling n° 203, of 15 March 2016) and Madrid (Ruling n° 207, of 18 March 2016), it has been decided that no crime is committed if there is no clear opposition by the owner of the house. 69 It is the case decided by the Ruling of the Court of Appeal of Valladolid n° 421, of 9 October 2014.

434

E. Sánchez Jordán and A. González Sanfiel

(of 2000) was enacted, some scholars consider that occupiers may not use the injunction against the owner if the latter recovers possession, as occupiers have no right to possession or, better, have a “vicious” possession.70 The injunction has to be brought to court within 1 year after the occupation started (Art. 439-1 Civil Procedure Code). If the period expires, the owner loses the chance to use the injunction and must use the actio reivindicatoria which has a quite complicated procedure, much longer than the injunction. Even if we can consider that possession by the four families is in bad faith, they are entitled to claim for necessary expenses (Arts. 453 and 455 CC) but not for improvements. Necessary expenses are those essential for the conservation of the house (e.g. repairing a water pipe that breaks or a roof through which water leaks).

2.1.1

The Right to Housing After the Crisis

It seems that decisions of the Courts of Appeal haven’t changed in a substantial way after the crisis (2007–2017), but in literature we can find a new perspective about the right to housing after so many families have either lost ownership over homes due to foreclosure or possession over rented homes due to nonpayment of the rent; we can find several scholars that consider right to housing as a right that could be claimed in court.71 At this point, it has to be taken into account that the economic crisis has affected very severely the Spanish population; we have one of the highest unemployment percentages in the UE, and just to give some numbers, 244,278 families have been evicted between 2008 and 2012.72 In Spain we also find one of the highest number of empty new houses in Europe.73 From the governmental side something has changed as well, as some Autonomous Communities (making use of their legislative competences in housing) have regulated economic sanctions to owners, temporary taking of homes or compulsory “social renting/leasing” in case of failure to fulfill its social function or in social emergency cases. It is the case of Andalusia (Act 4/2013 of 1st October 2013 amending the Housing Act), the Basque Country (Act 3/2015 of 18 June on Housing), Catalonia (Act 18/2007 of 28 December on Housing, amended by Act 9/2011 of 29 December that eliminated the temporary taking) and Navarra (Act 10/2013 of 10 May on Housing, as amended by Act 24/2013 of 2 July). The articles establishing the possibility of sanctioning owners or temporary taking established by the Andalusian Act were declared unconstitutional by the Ruling of the Spanish Constitutional Court 32/2018, of 12th April, after

70

De Pablo Contreras (2016), pp. 293 and 294. For instance, Pisarello (2013); Moreu Carbonell (2014), pp. 369–420. The latter speaks about the right to housing as a subjective constitutional right. 72 More information can be found in the website of the Judiciary (Consejo General del Poder Judicial), http://www.poderjudicial.es. 73 More than 723,000 in 2013 (Preamble of Act n° 8 of 28 June 2013, on Urban rehabilitation, regeneration and renovation, Ley 8/2013 de rehabilitación, regeneración y renovación urbanas). 71

Property Meeting the Challenge of the Commons in Spain

435

an appeal on the grounds of unconstitutionality brought by the President of the Spanish Government. Navarra’s rules dealing with expropriation have been declared constitutional by Ruling 16/2018 of 22nd February, while the rules of the Basque Country’s Acts related to the temporary taking have been suspended by the Constitutional Court due to constitutionality appeals that have been filed by the Spanish President. It is interesting to indicate that while the Catalan rules on compulsory social renting and temporary taking were in force they were not appealed on constitutionality grounds (so they were not treated in the same way as the rules of Andalusia, Navarra and the Basque Country). Differently, some articles of the Catalan Act 24/2015, of 29 July of 2015, on urgent measures to face emergency situations regarding housing and energetic poverty which contain some rules to avoid eviction have been appealed in the Constitutional Court by the Spanish President and, once again, the application of some of its articles have been suspended. Importantly, Art. 3k of the Catalan Housing Act regulates the so-called “masovería urbana”, a contract through which the owner of a house hands over its possession to another party who assumes the duty to keep and maintain the house, paying no rent at all: this could be a perfect solution for the four families of our case. At a national level, the only measures regarding housing that have been passed are those that stop for 4 years (until June 2017) certain eviction cases after the house’s foreclosure (Act 1/2013 of 14 May and Act 25/2015 of 28 July), but they can be applied in very limited occasions: only in the cases established in Art. 1.2 and 1.3 of Act 1/2013. This Act also lays down the possibility to impose a social lease contract (Annex 3.c). In the last years different initiatives with an impact on housing have taken place: on one hand, the Spanish Civil Procedure Code has been amended to allow eviction of occupiers in a very quick way (Act 5/2018, of 11th June, amending the Civil Procedure Code); on the other hand, and in a completely different sense, several municipalities have announced different measures in order to improve the situation of homeless people or families in need: this is the case, amongst others, of Zaragoza, that has been able to grant a house to homeless people applying the Housing First program. Madrid and Barcelona are also trying to find possibilities to facilitate access to housing to people in difficulties and/or to young people, as renting a house in those cities has become almost impossible due to the increase of rental prices after the slight economic recovery and, especially, after the holiday rental has arrived to the cities’ center. Recently (2018–2019), Madrid and Barcelona have announced the implementation of social housing plans. With the mayor’s change in Madrid (until May 2019 M. Carmena representing Ahora Madrid, and after May 2019 J.L. Martínez Almeida representing the Popular Party), probably all these plans will be abandoned. Nevertheless, during the Covid period the Spanish government has adopted important measures in order to prevent eviction and protect the right to housing of vulnerable families even if they are occupying a house without title (RDL 11/2020, of 31 March).

436

2.2

E. Sánchez Jordán and A. González Sanfiel

Health Care

Together with other people from her neighborhood, Emanuela has organized a volunteer non-profit medical clinic in what appeared to be an abandoned building offering free services to irregular migrants who have no health insurance. Soon after, Syntech Corporation, the owner of the building, realizing that the market value of the building has increased since they acquired it, decides to sell it at a profit. Syntech would like Emanuela and her volunteers out of the building within a few days in order to sell it, and initiates an eviction action. Many people in the area are upset by this news. Emanuela defends. The use given to abandoned premises has no influence on the solution of the case, as Art. 245 of the Spanish Criminal Code punishes the occupation of an immovable, regardless of its nature and use. The owner (Syntech Corporation or the new owner, if the building is sold) may decide to go to a criminal court or to sue Emanuela in the same ways described in Sect. 2.1 (i.e., following Art. 250-4 Civil Procedure Code by using an injunction), as she has no title to use the building, even if it was abandoned and the use given to it was of social interest. The recent amendment of the Spanish Civil Procedure Code (by Act 5/2018 of 11th June) will not be applicable as it only refers to a house (used for dwelling purposes) which is not the case. The solution won’t change eventhough Art. 43.1 of the Spanish Constitution declares that “The right to health protection is recognized”. In the balancing test amongst right to property (Art. 33 of the Constitution) and right to health, the former one will be probably considered preferential, as it is contained in the section related to the Spaniards Rights and Duties, while the latter is included in the section on the Governing Principles of Economic and Social Policy. Emanuela is entitled to claim for necessary expenses (Art. 453 CC) but not for improvements. Following Art. 455 CC “The possessor in bad faith shall pay any fruits received and those which the legitimate possessor could have received, and shall only be entitled to be repaid any necessary expenses made for the preservation of the thing. Expenses made for luxurious and recreational improvements shall not be paid to the possessor in bad faith; but he may take the objects in which such expenses have been invested, provided that the thing suffers no impairment, and that the legitimate possessor does not prefer to keep them by paying their value at the time of becoming their possessor”. Spanish Public Health System, which is decentralized and run by each Autonomous Community, is quite strong and even during the crisis period was able to provide citizens a quite high level comprehensive service. The Public System covers also basic assistance to foreigners in irregular situations in Spain, even if they have no public health care card. The covered services comprise urgent assistance, pregnancy and birth; in case they were under-aged, all kinds of health services are provided (Art. 3 of the Royal Legislative Decree 16/2012, of 20th April, on urgent measures to ensure the sustainability of the National Health System and to improve the quality and security of its benefits). The Spanish State ensures that the services

Property Meeting the Challenge of the Commons in Spain

437

must be provided, while the benefits must be provided by the Autonomous Communities.

2.3

Food

Marta, Mattias, and Madison, together with their families and neighbors, cultivate a communal garden on a vacant plot of land as a food source. Max Corporation, the owner of the plot of land, discovers the three families and tells them to leave. Max Corporation brings a claim against the three families for their removal and the removal of the food grown by the families on its land. Due to the fact that the plot of land is an immovable, the same rule of the Spanish Criminal Code that has been just mentioned in Sect. 2.2 (Art. 245) is applicable. Max Corporation can choose to go to a criminal court or to sue the families that cultivated land following Art. 250-4 Civil Procedure Code by using an injunction. As we said in Sects. 2.1 and 2.2, the families (as they would be considered possessors in bad faith) are entitled to claim for necessary expenses (Art. 453 CC) but not for improvements, as established by Art. 455 CC. In case they were considered possessors in good faith, Art. 451 CC grants the families the ownership of the collected fruits, while Art. 452 CC allocates the families the right to recover any expenses made for the gardens’ production, and also the right to get the part of the liquid product of the harvest proportional to the time of their possession. If they had agreed a (rural) lease contract, the families could cultivate the garden for a minimum period of 5 years that could be extended for a new period of 5 years if the lessor doesn’t ask for termination of the contract 1 year before it finishes (Art. 12 Rural Lease Act). In the case of urban leases, Art. 9 of the Urban Lease Act declares that the parties may freely decide the duration of the contract; anyhow, if the owner is a natural person, the contract may be extended up to five years, while if he/she is a legal person, it could be extended up to seven years (Art. 9 Urban Lease Act). No adverse possession would be accepted in this case or in Sect. 2.2, as “possession in the capacity of owner” (posesión en concepto de dueño) is needed, following Art. 447 CC (“Only possession acquired and enjoyed in the capacity of owner may serve as title to acquire ownership”).

2.4

Water (Rural)

Maya, Malik, and Mei depend on the water of Flumia, a nearby river. The three villagers together with other villagers in the area build aqueducts and an irrigation canal from the river to their respective homes and fields. After a few years, a private corporation diverts the water of the Flumia River. Soon after, Maya, Malik, and Mei

438

E. Sánchez Jordán and A. González Sanfiel

realize that water no longer flows to the aqueducts and irrigation canal from the river. Maya, Malik and Mei sue. Individuals have certain rights to use river water, following Art. 50 of the Spanish Water Act that provides that everybody can use superficial waters for drinking uses, bathing, other domestic purposes as well as for watering livestock, with no need of administrative permission and in accordance to the law. This means that Maya, Malik and Mei could use the river water for the uses described in Art. 50 Water Act, which does not allow irrigation. For this particular use, an appropriate title is needed. In this sense, Art. 52 Water Act states that the private right to use public domain water is obtained through a law or through an administrative concession. It also adds that the right to use privately public domain water cannot be obtained through adverse possession. So, unless they had previously obtained a concession, if they sued the corporation it would be considered that they had no title to use the river water to irrigate their lands and therefore they wouldn’t obtain any kind of compensation. Moreover, it could be decided that using water from the river for irrigation purposes without the public authorities’ permission is an administrative infringement and is punishable accordingly,74 or even a crime against natural resources and environment, which is punished by Art. 325 Spanish Criminal Code. Art. 65 of the Mortgage Regulation (Reglamento hipotecario), a rule enacted in 1947 long before the Spanish Constitution and the current Water Act, provides that the private use of water could be obtained through adverse possession (as the “old” 1879 Water Act admitted the possibility of water private ownership). Some rulings of the Spanish High Court have declared the right to private use of water acquired through adverse possession, but has limited its duration to 75 years (to be counted since the 1st January 1986, date in which the Water Act came into force).75 If this was the case (i.e., if it was considered that Maya, Malik and Mei had a title to the use of water), or if they were not considered responsible for an administrative infringement or a crime, they could obtain the right to recover the use of water through an injunction (interdicto) of Art. 250-4 of the Civil Procedure Code. They could also be awarded compensation for damages caused by the private company following Art. 1.902 CC.

74

The Ruling of the Spanish High Court of 28th June 2013 (RJ 2013\6021) deals with a case in which the defendant had used water from two rivers to irrigate 290 ha of rice crops without the necessary administrative permission and was punished according to the Water Act to pay a fine that amounted to 175,988.61 €. The Ruling of the same Court of 3rd December 2013 (RJ 2013\8432) punished the defendant who used water to irrigate rice crops without permission with a fine of 120,000 € as well as 60,900 € as compensation for damages caused by the unlawful irrigation activity to public domain. 75 In this sense, Rulings of the Spanish High Court of 20th July 2004 (RJ 2004\4450), 27th April 1999 (RJ 1999\3299), 27th September 1996 (RJ 1996\6802) and 28th September 1993 (RJ 1993 \6749).

Property Meeting the Challenge of the Commons in Spain

2.5

439

Water (Urban)

Jose, Jasmine, and Horatio are three friends that inhabit an apartment together in a city, Flumiapolis. Following a large increase in the price of water (200% in one year), the three friends fail to pay their water bills. After failing to pay the third bill, the water management cuts off their access to the water supply. Jose, Jasmine and Horatio sue. Jose, Jasmine and Horatio would have to pay even if the water price has increased as much as 200%. Most of the regulations on urban domestic water supplies (that are enacted by Autonomous Community or by other administrative bodies) establish that all water users have the duty to pay their water bills, sometimes even in cases of water leaks, failure or defective construction or maintenance,76 so an exaggerated increase of the price will not be considered justification for non-payment. This doesn’t mean that the water provider is allowed to cut off access to the water supply immediately, as the Ruling of 13th October 1989 (RJ 1989\7362) ruled that water supply could be only cut off when several requirements were met: (1) if the regulation dealing with domestic water supply provided for such sanction; (2) if the cut off was proportional;77 (3) if a proper procedure had been followed and audience had been given to users in order to avoid a breach of the right of defence. In our case it seems that the water company didn’t follow any kind of procedure in order to decide the water’s cut off, so Jose, Jasmine and Horatio could obtain compensation for damages following Art. 32 Act 40/2015, of 1 October, on the Legal Regime of the Public Sector. In Spain, access to urban domestic water (better, trying to avoid water supply cutoffs due to non-payment) has become a topic of great importance in the last decade, and we can find many grassroots movements against them. For instance, the Platform against the Canal de Isabel II’s privatization (see Sect. 1.5) has studied the increase in the number of cutoffs to water supply and has prepared a protocol to avoid them (or to minimize their impacts).78 In December 2018, the Net of Madrid’s cities and towns for public water (Red de ciudades y pueblos por el Agua Pública de la Comunidad de Madrid) was born.79 They intend to reverse water management

76

It is the case, for instance, Art. 10 of Decree 120/1991, of 11th June, of Andalusia regulating the domestic water supply; Art. 14.5 of the Regulation of water’s integral cycle of Barcelona’s metropolitan area of 6th November 2012); similarly, Art. 7 of the Regulation of water domestic supply in Santa Cruz de Tenerife, of 18th February 2005. 77 The Supreme High Court has ruled that cutting off the water supply is proportional in a case in which the water bills hadn’t been paid and no guarantee of payment had been granted. It also considered that cutting off the water supply prescribed by the water management regulation was reasonable as it was aimed at keeping the financial resources that allow the regular water supply (Ruling of 3rd October 2003, RJ 2003\7885). 78 Almost all the relevant information can be found in its webpage: https://bit.ly/2W0Mtw3 (accessed 10 July 2020). 79 See https://bit.ly/2ZdwBZ4 (accessed 10 July 2020).

440

E. Sánchez Jordán and A. González Sanfiel

privatization, to ensure a public water cycle management and to consider access to water as a human right. In the public sector we can also find an interesting example: in 2009 an association called AEOPAS (Asociación Española de Operadores Públicos de Abastecimiento y Saneamiento) was created; it has put together several public operators dealing with water supply and water sanitation. This association has included the preservation of public management of water as well as the consideration of domestic water supply as a human right amongst its purposes (https://bit.ly/2 DmrNbc).

2.6

Nature

Hamid, Heba, and their two children used to spend many weekends walking and playing in one of the few green areas at the outskirts of the city where they live. The land belongs to a private owner who lives in a small house near the lake. Corporation C acquires the green area and converts it into a members-only country club. Hamid and Heba sue. A local environmental group also sues claiming access to what they consider a natural commons. Under Spanish Law, Corporation C has the right to exclude Hamid, Heba and their children from the use of the green area, as the Corporation has become owner of that piece of land. Neither the suit proposed by Hamid and Heba nor the one by the local environmental group would be successful. The only limitations to the owner’s right to exclude others from entering into its property are those established by the law, as stated by Art. 348 of the CC. As there are no provisions allowing particulars to enjoy or to enter into private land for what would be considered a recreational use, Hamid, Heba and the environmental group would not be granted any right unless the place was considered a forest, as Art. 54 bis of Act 43/2003, of 21st November, on Forests, declares the right to public access to forests (regardless its ownership) depending on the Public Administration regulations, in coherence with its Preamble where it is stated that all kind of forests (public or private) fulfill a social function. As the Public Administration is entitled to regulate the conditions in which this public access can take place, public regulations and ordinances will be determinant in order to give a proper answer.80 The few other cases in which access to another’s property without the owner’s authorization is consented have been already described in Sect. 1.8, and none of them is applicable here. Instead, it is of interest to point out that Spanish Courts have sometimes made reference to the ius usus inocui doctrine—which is regulated in law

80

The case decided by the Ruling of Extremadura’s High Court of 15th January 2013 (RJ 2013 \42248) dealt with a municipal ordinance that authorized access to another’s private property to fetch remaining fruits (after the harvest had taken place) such as grapes, olives, almonds and other agricultural products, as far as the land was not fenced and the owner hadn’t forbidden it expressly.

Property Meeting the Challenge of the Commons in Spain

441

17 of Navarra’s Fuero Nuevo—in order to justify certain limitations to property; more specifically, on this basis they have affirmed the possibility to enter into another’s property to pick up the remaining fruits after harvesting (espigueo), to drink in a fountain or for cattle’s grazing the remaining stubble.81 Perhaps Hamid, Heba and/or the environmental group could try to sustain their suit on this doctrine, as walking and playing in the land shouldn’t disturb the owner (and as the ius usus inocui doctrine is based in the Roman principle quod tibi non nocet et alii prodest, non prohibetur). If the land were fenced the owner’s consent would be required. Even if under Spanish Law the right to public use over private property is very limited (as explained in, Sect. 1.8 there are very few cases in which the owner’s power to exclude non-owners is limited), it is clear that property is not an absolute right. In this sense, the Spanish High Court, in its Ruling of 3rd April 2012 (RJ 2012 \5272) has declared that property is defined by two elements—private utility and social function—the latter’s acting as a limit to the content of property rights. The same decision added that following Art. 7.2 Spanish Civil Code, the attempt to forbid the safe use (usus inocui) of a right could be rejected if such attempt represents an antisocial exercise of the owner’s right. In summary, if we take into account that property is limited by its social function (Art. 33.2 Constitution) and that the right to enjoy the environment is enshrined in Art. 45 of the Spanish Constitution as a means to develop the person’s dignity, in places where green areas are scarce it could be possible to try to obtain access to those areas for recreational uses without the owner’s permission when the land is not fenced, and not just to pursue bees, go hunting, or pick up fruits.

2.7

Territory

Yellowriver is a small village sitting within a large and remote forest area. The government grants to Gold Masters Corporation permission to dig seeking for gold in order to develop a nearby mine. Aware of the high polluting risks of gold extraction to the nearby river, villagers erupt in protest and attempt to stop the project by legal means. Do they have any available action to protect the river— either as individuals or as an endangered community? Under Spanish Law, “typical” tort law remedies (basically, compensation for damages established by Arts. 1.902 and ff. CC) will not be available if no harm has yet been caused, as Spanish tort law doesn’t foresee the adoption of precautionary measures. Instead, Art. 41 of Act 26/2007 of 23 October on Environmental Liability 81 Ruling of Extremadura’s High Court of 15th January 2013 (JUR 2013\42248), Ruling of Madrid’s High Court of 28th May 2004 (JUR 2005\160636). This ius usus inocui has also been alleged to justify some other uses of another’s property. For instance, in the Ruling of the Spanish High Court of 14th March 2003 (RJ 2003\2745), the Court decided that building a wall and anchoring it inside the other owner’s property caused him no harm and was thus allowed by the ius usus inocui doctrine.

442

E. Sánchez Jordán and A. González Sanfiel

regulates the ways to start the administrative procedure claiming for environmental liability as well as the implementation of cautionary measures, and allows any individual with a legitimate interest to initiate it. Following Art. 5 of Act 39/2015, of 1st October, on the Public Administrations’ Procedure, villagers individually or acting together (as collectively affected by the polluting risks) as well as environmental groups may start the procedure in order to try to stop the extractive activities or receive compensation for damages. In this case, Art. 41.2 of Act 26/2007 states that the complainant must file a written request identifying the damages that have already been caused or the risk of causing damages to the environment. Together with the request, it should be specified, when possible: (1) the action or the omission of the alleged perpetrator (Gold Masters Corporation); (2) the identification of the alleged perpetrator (GMC); (3) the date in which the action or the omission took place; (4) the place where the damage, or the risk of causing damages, to natural resources took place; and (5) the causal link between the action or the omission of GMC and the damage or the risk of damages. In this case, the public authority may impose on GMC the duty to adopt precautionary measures in order to avoid the causation of damages (Art. 18 of Act 26/2007) and if damages had been already caused the obligation to repair them (Art. 21 of Act 26/2007). The same Act provides that fines up to 2 million euros could be imposed if GMC failed to adopt the measures agreed by the public authority (Arts. 36 ff.). If damages had been caused, villagers could sue GMC following Art. 1.902 of the Spanish Civil Code (which is the basic rule in Spanish tort law) and compensation would be awarded to the plaintiffs if a causal link between the activity of GMC and the damages could be found,82 even if in the tort law field there is a trend towards objective liability.83 In order to protect the river from the polluting activity, they may also try to use the so-called acción negatoria, a remedy that has the purpose to order 82 In the case ruled by the Spanish High Court on 3rd December 1987 (RJ 1987\9176), the plaintiffs (two individuals who inhabited near an industrial company) had sued the company to obtain the repair of damages caused in their homes, the cessation of polluting industrial activities, as well as activities that caused noise over a certain limit. The High Court declared that civil jurisdiction was competent to rule on a case in which both parties were private (the plaintiffs were natural persons while the defendant was a legal person) and that tort remedies were applicable in cases of environmental damages. Probably one of the most important rulings in this field is that by the Spanish High Court of 31st May 2007 (RJ 2007\3431) dealing with a case of environmental damages caused by a viaduct built by a company to carry materials between two factories. It contains a review of different rulings by the European Court of Human Rights, adds that emissions comprising continuous and intensive noises can be punished as a crime, and explains that usually civil courts have awarded damages with support in tort law rules, in safe neighbourhood (relaciones de vecindad) rules, in the abuse of law or the aemulatio doctrine. The High Court accepts the claim for damages caused by noises but refuses to award compensation for its impact on the landscape, arguing that “nowadays landscape cannot be considered a subjective right whose infringement has to be compensated; moreover, it is a collective or common good that should be protected mainly by the public powers. In case any harm should be caused to landscape, penalties legally established shall be applied, but no compensation shall be awarded to specific natural or legal persons”. 83 Salas Carceller (2011).

Property Meeting the Challenge of the Commons in Spain

443

the harmful activity’s cessation and that has been mainly developed by jurisprudence pursuant to Art. 7.2 of the Condominium Act (Act 49/1960 of 21st July). GMC’s activity could be also considered a crime against the environment punishable by Art. 325 Spanish Criminal Code. In such case, the public prosecutor could bring action against GMC. Villagers could try to act as private prosecutors as they have suffered from GMC’s activity. Environmental groups could also participate using the so-called “popular action” (acción popular) as Art. 125 of the Spanish Constitution provides that “Citizens may engage in popular action”, thus meaning that the Spanish legal system grants standing to certain groups in order to protect public interest. In Spain we suffered a similar problem to the one described in this question (the Anznalcóllar disaster) but in the Spanish case it was the Public Administration who sued the polluting activity’s author: on April 1998, a holding dam burst at Los Frailes mine near Aznalcóllar, Seville, releasing 4–5 million cubic meters of mine tailings. The acidic tailings, which contained dangerous levels of several heavy metals, quickly reached the nearby River Agrio, and then its affluent the River Guadiamar, travelling about 40 km along these waterways before they could be stopped.84 The cleanup operation took 3 years, at an estimated cost of €240 million. In 2002, criminal proceedings ended and 21 experts were acquitted; therefore, Andalusia’s regional government filed an action against the Swedish company Boliden (that was in charge of the mine) in a civil court in Seville. After several appeals dealing with the court’s jurisdiction that ended in the Spanish High Court, the case turned back to Seville’s court and 22 years later it has not yet been decided who is responsible for the cleanup operation costs. It was probably this case, together with the need to transpose the Directive 2004/35/CE of the European Parliament and of the Council of 21 April 2004 on environmental liability with regard to the prevention and remedying of environmental damage into national law, that led the Spanish legislator to pass the Act 26/2007 on Environmental Liability.

2.8

Culture

State funding to a nonprofit local theater is cut in response to austerity measures; as a result the theater will be sold to a private company that wants to operate the theater at a profit. Evgenia, Misha, and Katia are actors, and along with other concerned citizens that protest the sale and other workers, they occupy the theater, and continue the theater’s programming for the public through a combination of volunteer work and donations. The municipality brings suit to evict against Evgenia, Misha, Katia, and the other actors.

84 The Guadiamar is the main water source for the Doñana National Park, a UNESCO World Heritage Site and one of the largest national parks in Europe.

444

E. Sánchez Jordán and A. González Sanfiel

Variation: Assume that the actors obtain permission to stay and to use the theater provided that they run it as a commons in the interest of culture and future generations. What legal form should they use to this purpose? Under Spanish Law, the occupation of the theater would be probably considered a case of precario85 (see Sect. 2.1) so the suit against the occupiers would be successful if the municipality was still the owner of the theater. Recent Rulings of the Spanish High Court have declared that precario is a factual situation that involves (1) the free use of another’s good over which the user has no legal possession even if he or she is using it, and (2) the lack of a title justifying possession because the user never had it or because, having had it, it has extinguished.86 There are different remedies in favor of the municipality: firstly, it may use its eviction power and exercise the “administrative eviction” without going to Court (Art. 58 of Act 33/2003, of 3rd November, on Public Administration Property), but there is some debate about the possibility of using this action to recover the possession over goods which belong to the Administration but are not public.87 The municipality may also use its power to recover possession over the theater through the interdictum proprium or ex officio recovery which is regulated in Arts. 55 of Act 33/2003 and 82.a of Act 7/1985, of 2nd April, on the Foundations of the Local Regime. Art. 55.3 of Act 33/2003 establishes that this power must be exercised within 1 year since the occupation started; on the contrary, the public authorities shall have to sue the actors in civil courts. In this case, the action of vindication (acción reivindicatoria)—which is regulated in Art. 348-II CC—can be used, but the judicial procedure in this case is much slower than those of the former actions. Therefore, the actors would be evicted even if they were using the theater for cultural purposes, as they have no title to justify occupation. The main way to avoid eviction would be by proving that the actors had legal title to use the theater88 because the social function of property may not be considered enough to limit the powers of the municipality over the theater. Even if Art. 44.1 of the Spanish Constitution declares that “The public authorities shall promote and watch over access to cultural opportunities, to which all are entitled” and in its Preamble it proclaims the will of the Spanish nation to promote the progress of culture, the right to property is regulated amongst the Spaniards’ Rights and Duties (immediately after

85

There is precario when someone continues to occupy a house (or another immovable good) after the title that allowed him/her to do so was extinguished (precario convencional), and also when somebody is occupying someone else’s immovable with no title to do so, usually as a consequence of the owner’s mere tolerance (Ruling of the Spanish High Court of 31st December 1992, RJ 1992 \10670). 86 Rulings of the Spanish High Court of 28th February 2013 (RJ 2013\2162), of 557/2013, of 19th September 2013 (RJ 2013\7428), of 1st October 2014 (RJ 2014\4613) and of 28th February 2017 (RJ 2017\605). 87 Ruiz López (2011). 88 Amongst many others, Ruling of Madrid’s Court of Appeal of 17th May 2007 (AC 2007\1240), Ruling of Barcelona’s Court of Appeal of 14th January 2019 (JUR 2019\28259).

Property Meeting the Challenge of the Commons in Spain

445

the Fundamental Rights), while this sort of “right to culture” contemplated by Art. 44.1 is contained amongst the Governing Principles of Economic and Social Policy, which are less strong. Nevertheless, and taking into consideration that property is limited by its social function (Art. 33.2 Spanish Constitution), the defendants could try to stop the eviction with support in the abuse of law doctrine or even better in the anti-social exercise of property (both of them envisaged by Art. 7.2 CC), as these are legal arguments that have already been used by the Spanish High Court to decide conflicts dealing with environmental issues89 (and the right to enjoy the environment is contained in the same section of the Spanish Constitution as the right to access to cultural opportunities). With regard to the public use of a theater, the Atlante’s case is on point:90 the Atlante theater was set in a 40,000 inhabitants’ town (La Orotava) located in the Northern part of Tenerife (Canary Islands). Even if the theater, which was privately owned, hadn’t been used for cultural purposes for many years, the building itself was of historical and cultural interest; it was built in 1930 and represented a particular architectural style in the Islands (rationalism) and it was surrounded by eighteenth and nineteenth century houses. In 2003, the municipality allowed its demolition and authorized a six-storey building for commercial purposes. When the building activity was about to start (March 2005) neighbors and activists tried to stop the backhoe loader and camped in front of the partially-demolished theater for more than 15 days. In 2005, several lawsuits (criminal and administrative) were brought to Courts by a local environmental group, as the grassroots movement that was born after the incident (Movimiento Atlante) decided not to formalize its constitution. And while the administrative action was approved and consequently the building permission was cancelled (in 2007), the criminal suit was rejected (in 2019, i.e., 14 years after it was filed). There has been a sort of “happy end”, as the municipality bought the land where the theater was located in 2018 and announced that the future building will have educational or cultural purposes.

2.8.1

Variation

If the actors obtain permission to stay and to use the theater provided that they run it as a commons in the interest of culture and future generations, several legal forms may be used to grant them the right to use the place. From the point of view of the right’s “consistency”, probably a usufruct (which is a right in rem) should be created by the municipality and granted to the actors. The main problem faced by this possibility is the one regarding its duration: if it is granted to a legal person, it may

89

The ruling of the Spanish High Court of 3rd December 1987 (RJ 1987\9176) makes reference to both of them, while the Rulings of 30th May 1997 (RJ 1997\4331), 31st May 2007 (RJ 2007\3431) or 12th January 2010 (RJ 2011\305) only refer to the abuse of law doctrine. 90 Even El País, the most important Spanish journal, included the news on this case in April 2005: https://elpais.com/diario/2005/04/01/ultima/1112306401_850215.html. Accessed 10 Jul 2020.

446

E. Sánchez Jordán and A. González Sanfiel

exist for no more than 30 years (Art. 515 CC); if it is granted to a natural person it will end when the holder dies (Art. 513.1 CC) or the agreed period expires (Art. 513.2 CC); if it is granted to a group of natural persons, it will end when the last of them dies (Art. 521 CC). The parties could also conclude a commodatum agreement, which is suitable for lending both movables or immovables and has a remarkable advantage in comparison to a lease contract, as the commodatum is essentially free (i.e., the owner of the good will not receive rent for letting it), following Art. 1.740-II CC. The duration of the contract will depend on the parties’ arrangement (Art. 1.749 CC), but if no term was agreed the owner is entitled to claim for the thing’s recovery at any time (Art. 1.750 CC). A lease contract could also be agreed. It would be subject to the Urban Lease Act (Act 29/1994, of 24th November), which considers lease contracts for cultural purposes in Art. 3.2 and conditions will depend mainly on the parties’ agreement. In this case, there are very few imperative applicable rules, while lease contracts for dwelling purposes are subject to a wide number of coactive rules.

2.9

Climate

Diletta, Flavio, and Antonella became aware of the reality of climate change when their school teacher decided to work on reading materials that were circulated at the time of the 2015 Paris Agreement on Climate Change. Although just turned 18 years old, all the three of them took the information quite seriously and started to worry about the gloomy expectations they learnt about: dangerous rise in the global temperature, water scarcity, droughts, forest fires, possible displacement of populations, etc. After the scandal involving the Popcar Corporation, concerning the manipulation of computer system for the control of emission in cars, Diletta, Flavio, and Antonella are struck by the quite feeble sanctions inflicted to the car manufacturer—not only in their jurisdiction. For this reason Diletta, Flavio, and Antonella decide to take action in the interest of future generations. They sue their government and the global corporation Popcar. If the three students decide to sue either the government or the corporation in the interest of future generations, Spanish courts will consider that they have no standing, as “future generations” is neither a natural nor a legal person. However, in cases similar to the Popcar Corporation one, public interests in the preservation of the environment and in the conformity of goods with advertised conditions are concurrent, and such interests can be protected by the sanctioning activity of the Public Administration.91 In this sense, some Autonomous Communities have already started some disciplinary proceedings against the car corporation (Andalusia,92

91 92

Carrasco Perera and García Montoro (2016). https://www.facua.org/es/noticia.php?Id=10464. Accessed 10 Jul 2020.

Property Meeting the Challenge of the Commons in Spain

447

Galicia,93 or Castilla-La Mancha94) while some others have decided not to sanction it (Catalonia95). The best (and probably only) way to get some compensation under Spanish Law would be individually, i.e. by the affected cars’ owners. They could bring an action to the civil courts on different grounds: breach of contract based on the aliud pro alio doctrine, hidden defects, non-conformity with the advertised conditions as regulated by Art. 61 of the Royal Legislative Decree 1/2007, of 16th November, on the Consumers’ Protection Act,96 amongst others.97 A collective action could also be tried, as it has already happened: in 2016, one of Spain’s most important consumer associations (OCU, Organización de Consumidores y Usuarios) filed a collective action following Art. 11.1 of the Civil Procedure Code claiming for reparation in less than 1 month and for a compensation of at least 2000 € for each of the cars’ owners.98 Criminal action could also be tried: already in Spain some consumer associations as well as some ad hoc groups have filed action in criminal courts.99 On 28th October 2015, the Juzgado central de instrucción of the Audiencia Nacional100 declared that it was competent to rule on criminal actions filed by several organizations against the car corporation and, on 30th June 2016, the same court declared that one of the crimes possibly committed by the car corporation was the one against the environment (Art. 325 and ff. of the Spanish Criminal Code). This same court decided, in November 2018, to send the case to the German court of Braunschweig.101 The Spanish government has been especially reluctant to impose sanctions to the global corporation; moreover, it has been trying to “convince” the affected car owners to take their cars to the car workshop and get them repaired (instead of

93

https://bit.ly/2GTcK7H. Accessed 10 Jul 2020. https://www.facua.org/es/noticia.php?Id=10494. Accessed 10 Jul 2020. 95 https://www.facua.org/es/noticia.php?Id=14051. Accessed 10 Jul 2020. 96 This has been the main argument used by the Balearic Islands Court of Appeal to award moral damages to the car owners (for instance, Rulings of 19th June 2019 [JUR 2019\219148], of 25th January 2018 [JUR 2018\69329], of 21st December 2017 [JUR 2018\64068], of 17th October 2017 [JUR 2017\290025], of 7th September 2017 [JUR 2017\247199]). There are also many rulings that dismiss the car owners’ actions; amongst many others, Ruling of Burgos Court of Appeal of 18th September 2018 (AC 2018\1571), of Valencia Court of Appeal of 23rd July 2019 (JUR 2019 \272703) or of Lleida Court of Appeal of 2nd July 2019 (AC 2019\1119). 97 Some other possibilities are described in Carrasco Perera and García Montoro (2016), pp. 8–11. 98 See https://www.ocu.org/coches/coches/noticias/volkswagen-demanda. Accessed 10 Jul 2020. 99 See https://afectadosvolkswagenabogados.com/noticias-sobre-el-procedimiento-penal/#com ment-5745. Accessed 10 Jul 2020. 100 The Audiencia Nacional is a special court based in Madrid that has jurisdiction to decide in some criminal (e.g. terrorism cases or crimes against the Crown), Administrative and Labor Law cases (https://bit.ly/2uMRcqv). Accessed 10 Jul 2020. 101 https://bit.ly/38Xn9ew. Accessed 10 Jul 2020. 94

448

E. Sánchez Jordán and A. González Sanfiel

bringing action against the car corporation) by sending each of them registered letters from the National Traffic Department.102

References Aguilera Klink F (2006) El fin de la tragedia de los comunes. In: Gordillo JL (coord) La protección de los bienes comunes de la Humanidad. Un desafío para la política y el Derecho del siglo XXI. Trotta, Madrid, pp 117–128 Arena G (2017) Un nuevo derecho para la administración compartida de los bienes comunes. La experiencia italiana. Revista de administración pública 203:423–441 Barnés Vázquez J (1988) La propiedad constitucional. El estatuto jurídico del suelo agrario. Civitas, Madrid Bocanegra Sierra RE (1986) Los montes vecinales en mano común: naturaleza y régimen jurídico. Instituto de Estudios de Administración Local, Madrid Bolea Foradada JA (2016) Las comunidades de regantes, 3rd edn. Federación Nacional de Comunidades de Regantes de España, Madrid Carrasco Perera Á, García Montoro L (2016) Batalla legal contra Volkswagen: el desmedido interés de los afectados en obtener un beneficio económico del escándalo Dieselgate. Revista CESCO de Derecho de consumo 18/2016, I. https://revista.uclm.es/index.php/cesco/article/view/1100/ 920. Accessed 10 Jul 2020 Chamoux MN, Contreras Hernández J (eds) (1996) La gestión comunal de recursos: economía y poder en las sociedades locales de España y América Latina. Icaria, Barcelona Ciriacy Wantrup SV, Bishop R (1975) Common property as a concept in natural resources policy. Nat Resour J 15:713. https://digitalrepository.unm.edu/nrj/vol15/iss4/7. Accessed 10 Jul 2020 Colom Piazuelo E (2015) Los bienes comunales. In: González García J (ed) Derecho de los bienes públicos, 3rd edn. Tirant lo Blanch, Valencia, pp 243–289 De Faramiñán Gilbert JM (2017) De los espacios de interés internacional a los ‘global commons’. In: Alcaide Fernández J, Petit de Gabriel EW (coords) España y la Unión Europea en el orden internacional. XXVI Jornadas ordinarias de la Asociación Española de Profesores de Derecho internacional y Relaciones internacionales. Universidad de Sevilla, pp 831–840 De Pablo Contreras P (2011) Comment to Art. 349. In: De Pablo Contreras P, Valpuesta Fernández R (coords) Código civil comentado, vol I. Civitas, Cizur Menor, pp 1417–1421 De Pablo Contreras P (2016) Protección de la posesión y del derecho a poseer. In: De Pablo Contreras P (coord) Curso de Derecho civil (III), reprint of the 4th edition. Edisofer, Madrid, pp 291–317 Delgado Piqueras F (1993) Régimen jurídico del derecho constitucional al medio ambiente. Revista Española de Derecho Constitucional 38:49–79 Díaz Fuentes A (1999) Montes comunales en mano común. Bosch, Barcelona Embid Irujo A (1993) La defensa de los comunales (planteamientos generales a partir de la realidad aragonesa). Civitas, Zaragoza Faus Pujol MC, Rubio Gracia JL (1984) La apropiación de comunales en Aragón. Geographicalia 21-24:77–86 Gallego Anabitarte A (1993) La desamortización de los Montes de Toledo. Marcial Pons, Madrid García de Enterría E, Fernández TR (2004) Curso de Derecho Administrativo, II, 9th edn. Civitas, Madrid García Quiroga F (2013) Desde la desarticulación al presente de los montes vecinales en mano común en Galicia. Teknokultura 10(1):155–176

102

https://www.ocu.org/coches/coches/noticias/carta-dgt-vw-taller. Accessed 10 Jul 2020.

Property Meeting the Challenge of the Commons in Spain

449

Gordillo JL (2006) A vueltas con lo común. In: Gordillo JL (coord) La protección de los bienes comunes de la Humanidad. Un desafío para la política y el Derecho del siglo XXI. Trotta, Madrid, pp 11–19 Hernández Hernández C (1990) Régimen jurídico-administrativo de la Universidad del Valle de Salazar. Gobierno de Navarra, Pamplona Herranz Castillo R (2000) Desobediencia civil, ocupación y derecho a la vivienda. Actualidad Jurídica Aranzadi 435:1–5 Jiménez Campo J (1999) Derechos fundamentales. Concepto y garantía, Trotta Madrid Juste Ruiz J (2018) La gobernanza de los “global commons” como patrimonio colectivo en el Derecho internacional. Anuario de Derecho internacional público 34:133–149 Lacruz Berdejo JL (1990) Elementos de Derecho civil III-1°, 3rd edn. Bosch, Barcelona López López Á (2015a) El derecho de propiedad. Una relectio. In: López López Á (coord) Derecho civil constitucional. Editorial Universidad de Sevilla, pp 317–376 López López Á (2015b) El derecho a la propiedad privada y a la herencia. Función y límites. In: López López Á (coord) Derecho civil constitucional. Editorial Universidad de Sevilla, pp 395–443 Macías Hernández A (1990) Aproximación al proceso de privatización del agua en Canarias, c. 1500–1879. In: Pérez Picazo MT, Lemeunier G (eds) Agua y modo de producción. Crítica, Barcelona, pp 121–149 Martín Duque AJ (1963) La Comunidad del Valle de Salazar, orígenes y evolución histórica. Ed. Gómez, Pamplona Mattei U (2013) Bienes comunes: un manifiesto (trans: Pisarello G). Trotta, Madrid Montés Penadés V (1980) La propiedad privada en el sistema del Derecho civil contemporáneo. Civitas, Madrid Moreu Carbonell E (2003) Desmitificación, privatización y globalización de los bienes públicos: del dominio público a las “obligaciones de dominio público”. Revista de Administración Pública 161:435–477 Moreu Carbonell E (2014) Sanción y expropiación de viviendas deshabitadas por incumplimiento de su función social o en circunstancias de emergencia social. In: Alonso Pérez MT (dir) Vivienda y crisis económica (Estudio jurídico de las medidas propuestas para solucionar los problemas de vivienda provocados por la crisis económica). Aranzadi, Cizur Menor, pp 369–420 Nieto A (1964) Bienes comunales. Editorial Revista de Derecho Privado, Madrid Nieto A (1991) Bienes comunales de los Montes de Toledo. Civitas, Madrid Ostrom E (2015) El gobierno de los bienes comunes. La evolución de las instituciones de acción colectiva (trans: Merino Pérez L), 2nd edn, 2nd reprinting. Instituto de Investigaciones Sociales. Universidad Nacional Autónoma de México. Fondo de Cultura Económica, Mexico Parada R (2004) Derecho Administrativo III. Marcial Pons, Madrid-Barcelona Pisarello G (2013) El derecho a la vivienda: constitucionalización débil y resistencias garantistas. Chapecó 14(3):135–158 Raposo Arceo JJ (1966) Régimen jurídico de los montes vecinales en mano común en el marco de la propiedad forestal. PhD Dissertation, La Coruña Razquín Lizárraga MM (1990) El régimen jurídico administrativo de las Bárdenas Reales. Gobierno de Navarra, Pamplona Rey Martínez F (1994) Sobre la (paradójica) jurisprudencia constitucional en materia de propiedad privada. Derecho privado y Constitución 3:169–202 Rodríguez de Santiago JM (2008) Las garantías constitucionales de la propiedad y de la expropiación forzosa a los treinta años de la Constitución Española. Revista de Administración Pública 177:157–194 Ruiz López MÁ (2011) Potestad de desahucio administrativo. INAP, Madrid Sainz Moreno F (1999) El dominio público: una reflexión sobre su concepto y naturaleza, cincuenta años después de la fundación de la « Revista de Administración Pública ». Revista de Administración Pública 150:477–514

450

E. Sánchez Jordán and A. González Sanfiel

Salas Carceller A (2011) Las inmisiones por ruidos y vibraciones y sus consecuencias indemnizatorias. Revista Aranzadi Doctrinal 10(2):21–28 Sánchez Jordán ME (2000) La titularidad (y el aprovechamiento) de las aguas en Canarias. In: Bercovitz R, Martínez Simancas J (eds) Derechos civiles de España, vol 7. Sopec, Madrid, pp 4021–4056 Subirats J, Rendueles C (2016) Los (bienes) comunes ¿Oportunidad o espejismo? Icaria, Barcelona Tornos Mas J (2017) Bienes comunes y administración compartida. idpbarcelona.net/docs/recerca/ bens/admon_compartida.pdf. Accessed 10 Jul 2020

Property Meeting the Challenge of the Commons in Sweden Filippo Valguarnera

Abstract Sweden has a rich historical tradition concerning variegated aspects of the commons, including common usage of land and open access to private land to engage in outdoor activities. Moreover, the Swedish legal tradition features a notion of property that can be described as ideologically weaker than in most of the West, leading to an attitude towards the use of land resources that can best be described as pragmatic. Despite these circumstances, the Swedish legal system has not yet developed a legal concept encompassing all the dimensions of the modern commons. Legal scholarship has, with a few exceptions, displayed a rather tentative interest in the subject.

1 Questionnaire: Part I 1.1

What Legal Categories in Your Legal System May More Closely Correspond to the Notion of the Commons as Deployed in the Introduction?

While there is no legal category in the Swedish tradition that perfectly corresponds to the English “commons”, there are a few concepts that, in specific fields, remind us of the notion as it is defined in the introduction. The word most used by non-jurists to translate “commons” into Swedish is allmänning. The term can be found in the old Code of Settlements (byggningabalken), part of the Sveriges Rikes Lag (literally the “Law of the Kingdom of Sweden”) that in 1734 reorganized Swedish legislation, as well as in later statutes. Allmänning, similarly to the English land law notion of the commons, indicates the resources owned in common by the landowners of a village. The

F. Valguarnera (✉) Stockholm University, Stockholm, Sweden e-mail: fi[email protected] © The Author(s), under exclusive license to Springer Nature Switzerland AG 2023 U. Mattei et al. (eds.), Property Meeting the Challenge of the Commons, Ius Comparatum - Global Studies in Comparative Law 59, https://doi.org/10.1007/978-3-031-25218-1_13

451

452

F. Valguarnera

share of the allmänning held by each individual cannot be transferred separately from the land.1 The phenomenon is of little consequence in modern Swedish law, but the term is today widely used to indicate commons in a broader sense. For instance, the standard translation of “the tragedy of the commons” is allmänningarnas tragedi.2 Another notion that reminds us of the definition given in the introduction is the allemansrätt. I will address this legal institute in greater detail below.3 For now, it suffices to say that the allemansrätt is the right of the public to roam on private land, primarily but not exclusively to engage in outdoor activities, and pick a limited quantity of berries or mushrooms. The main limits to the allemansrätt stem from the desire to protect the landowner’s interest of preserving the economic value of her property as well as her privacy. Passersby will therefore not be allowed to walk on newly sown crops or in other ways damage the land beyond “the point of tolerance” (toleranspunkten), as legal scholarship usually puts it.4 For most intents and purposes, the owner’s right to exclude has been removed from the bundle of rights that is property. The relevance of the allemansrätt can only be understood if the private law perspective is complemented with an understanding of Swedish public law, and in particular of environmental law. For instance, the Environmental Code (miljöbalken) gives the County Administrative Board (Länsstyrelsen) the power to order the landowner to bring down a fence, if it keeps passersby from entering an area of importance for outdoor life.5 Moreover, the allemansrätt can affect construction permits if the building is going to diminish the area available to the public in places that are of particular importance for outdoor life.

1.2

Is There Today or Was There in the Past a Concept of the Commons in Your Legal System? In the Affirmative, Is It Statutory, Jurisprudential, Doctrinal or Customary?

As already discussed in the first answer, the oldest legal category resembling the commons is the allmänning. However, in a strictly legal sense, it only applies to land law.

Lag (1952:166) om häradsallmänningar, § 4. See for instance Sandell (2011), p. 58. 3 See 2.6.1. 4 Ljungman (1943), p. 263. 5 Miljöbalk (1998:808), Chapter 26, § 11. 1 2

Property Meeting the Challenge of the Commons in Sweden

1.3

453

Is the Commons Today a Topic of Academic Debate in Your Legal System: And in the Affirmative in What Context?

The commons have started, albeit timidly, to attract interest by legal scholars. The number of scholars involved in the field is, however, too small to talk about a movement or even a debate. The areas where the commons are being discussed are primarily access to nature and intellectual property. In the former field the main contributions have come from me and Åsa Åslund.6 In the field of intellectual property, the best example of interest for the commons can be found in Merima Bruncevic’s thought-provoking doctoral dissertation Law, Art and the Commons.7

1.4

Is There Any Kind of Public Property in Your Legal System That Is Absolutely Not Alienable?

No. The main Swedish constitutional document, the Instrument of Government (Regeringsformen), states in Chapter 9 § 8 that the Government disposes of the assets of the State, except for goods belonging to authorities directly under the Parliament (such as the office of the Ombudsman) and assets (such as the public retirement funds) that are allocated to special administration. The operational rule, however, is somewhat more complex, as ordinary legislation has limited the power of the executive branch in this regard. The main limit is expressed in the Budget Act,8 where Chapter 8 § 2 establishes that the Government can decide to sell immovable property as long as its value does not exceed 75 million crowns and as long as it is not needed for the functioning of the state. An authorization by the Parliament is needed to sell immovable property of a higher value.

1.5

Are There Remedies in Your Legal System for Someone to Challenge in Court a Government That Decided Privatization of the Commons?

The decisions of the Swedish government can only be challenged in the Supreme Administrative Court in a limited number of cases: by an individual, when a decision

6

Observe that there are other authors (mainly Seve Ljungman, Bertil Bengtsson and Staffan Westerlund) who have discussed the allemansrätt, without however placing it in the broader context of the commons. See Valguarnera (2013a, b, 2016) and Åslund (2017). 7 Bruncevic (2018). 8 Budgetlag (2011:203).

454

F. Valguarnera

concerns a right protected under the European Convention on Human Rights, or by an environmental organization, when the decision concerns a type of authorization included in Article 9(2) of the Aarhus Convention.9 To challenge privatizations per se is generally difficult because of a required individual interest in the matter. An exception is provided by privatizations in a broader sense, as when the Government grants a mining concession that might have an impact on an area of national importance for outdoor life or for reindeer husbandry. In these cases, the concession can be challenged by an environmental organization affected by the mining operation or by a Sami village, respectively.10

1.6

Are There Remedies in Your Legal System for Someone to Challenge in Court a Government That Decided Nationalization of the Commons?

Nationalizing commons would in most cases be construed as expropriation. One could, for instance, imagine a privately-owned area enjoyed by the community for outdoor activities, which the government wants to expropriate for erecting a military installation. In such a scenario, the landowner would have a possibility to challenge the expropriation in the Supreme Administrative Court.11 This avenue is not open to the community itself. However, judicial resistance (for instance by environmental organizations) can take other forms, such as challenging the project during the environmental authorization procedure (these aspects will be discussed in the answers to the hypothetical cases below).

1.7

To What Extent Is Private Property Considered a Fundamental Right in Your Legal System, and What Other Constitutional Rights Could Defeat It in a Balancing Test?

The history of private property in Sweden is a complex one. Several historical factors have contributed to shape it. The tensions concerning land resources—that were a striking feature of the development of the English and French societies from the Middle Ages until modernity—have by comparison been low in Sweden. This can be attributed to the low density of the population as well as to the relative weakness of the Swedish aristocracy, who never managed to introduce the feudal system in

Lag (2006:304) om rättsprövning av vissa regeringsbeslut, § 1. An example of a challenge, albeit unsuccessful, by a Sami village: RÅ 2010 not. 31. 11 Lag (2006:304) om rättsprövning av vissa regeringsbeslut, § 3. 9

10

Property Meeting the Challenge of the Commons in Sweden

455

Sweden. Moreover, the Swedish peasantry enjoyed a political status that was, if not unique, at least quite unusual in the European context. For instance, the Swedish peasants where represented in the state parliament together with the aristocrats, the clergy, and the bourgeoisie.12 In fact, in 1789 Gustaf III relied on the support of the peasantry to establish his absolute rule.13 Under these conditions, property did not become a central component of the national political discourse as in other parts of Europe. Property was not conceived, at least not to the same extent as in France or England, as a battleground for the conflicting interests of various social groups. This shielded Sweden from the bombastic rhetoric that, especially during the eighteenth century, became a recognizable feature of the debate surrounding property in both civil law and common law. In Sweden, no statutory definition of property has ever been formulated, nor does Swedish legal literature devote much energy trying to fill such gap. This can in part be explained by the strong influence the Scandinavian legal realism exercised over Swedish legal scholarship during most of the twentieth century. The school, which was founded by Uppsala philosopher Axel Hägerström and counted among its most celebrated members Swedish scholars Vilhelm Lundstedt and Karl Olivecrona and Danish jurist Alf Ross, displayed animosity against a formalistic legal reasoning devoted to the systematization and application of abstract concepts. Hägerström, in particular, wanted to stress the need for legal scholarship to apply scientific standards,14 meaning that jurists needed to devote themselves to “facts.” He found, however, no facts that corresponded to ownership and that it was a concept that had “nothing to do with reality.”15 One operational consequence of the relatively low political importance of property is the high degree of pragmatism that came to characterize the rules pertaining to land resources. As early as the Middle Ages, the so-called provincial laws (landskapslagarna) were indifferent to the fact that travelers could transit on privately owned land, and even gather some small quantity of fruits or fallen branches, as long as no substantial damage was caused to the economic value of the resource.16 In modern times, this mentality has contributed to the genesis of the allemansrätt, the right of the public to access nature on private land. On a constitutional level, the protection of private property—and of fundamental rights in general—has been weak. The Instrument of Government (Regeringsformen) of 1809, which was in force until 1974, at § 16 stated that the executive branch (the King) could not deprive a citizen of her property without a judgment issued in accordance to legislation. The provision did not, however, limit the powers of the legislature and did not prescribe any compensation to the owner.

12

Sundell (2007), p. 25. Bäärnhielm (1970), pp. 339–340. 14 The scientific ambitions of Hägerström are well elucidated in Lyles (2006). 15 Hägerström (1953), p. 4. For an insightful comparison between American and Scandinavian legal realism, specifically on their view of property, see also Alexander (2002). 16 See for instance the Dalecarlian Law, Code of constructions, XXII and XXIII. 13

456

F. Valguarnera

The constitutional protection of property continued to be weak in the Instrument of Government of 1974, despite of its inclusion (since 1976) in Chapter 2, dedicated to fundamental rights. While Chapter 2 § 18 did award compensation to the expropriated owner, it did not explicitly limit the power of the legislature to allow expropriation only when the measure was justified by a prevailing public interest. The weak protection of property was consistent with both the skepticism of Scandinavian realism towards abstract legal concepts and, perhaps more significantly, the strong reformist policies endorsed by the Swedish social democracy since the 1930s. The construction of one of the most generous welfare states in the West required more flexibility than a strong protection of property would have allowed. During the 1980s, the Swedish stance on the constitutional protection of private property started showing clear signs of friction with the European Convention on Human Rights. A pivotal moment is represented by the European Court’s judgment in Sporrong & Lönnroth v. Sweden (1982)17 that concerned landowners who had been prevented from enjoying their property due to authorizations, issued by the government to the municipality of Stockholm, to expropriate the land. These authorizations should have been used by the municipality within 5 years, but were instead periodically renewed for decades, effectively leaving the property in a limbo. Moreover, the two properties had been hit by a construction ban. The European Court of Human Rights determined that Sweden had violated Article 6 as well as Article 1 of the first protocol of the European Convention on Human Rights. The judgment, while shocking for a political establishment that had underestimated the impact of the Convention on its own policies, did not change the Swedish legal culture overnight. However, Sporrong & Lönnroth provided the critics of the social democratic policies, mainly the so-called “bourgeois” political parties, with a powerful argument to strengthen the constitutional protection of private property. This resulted in a reform of Chapter 2 § 18 in 1994. The new version of the provision not only stated that an expropriated owner had a right to economic compensation, but also that no one could be forced to depart from her property or to tolerate a restriction on her control over the property “unless to serve urgent public interests.” A further step was taken in 2011, when the provision (now re-numbered Chapter 2 § 15) underwent a few significant changes. Firstly, while the previous text protected citizens, the new version covers everyone. Secondly, an expropriated owner is not entitled just to compensation but rather to “full compensation.” The Expropriation Act of 1972,18 as modified in 2010, prescribes that the landowner is entitled to 125% of the market value of the land (Chapter 4 § 1). The preparatory works justify the extra 25% as compensation for the compulsory nature of expropriation. In other words, while the market value of the property might be X, the landowner might not have considered selling her property for less than X + Y. It

17 18

Sporrong and Lönnroth v. Sweden, 1982, series A, n. 98. Expropriationslag (1972:719).

Property Meeting the Challenge of the Commons in Sweden

457

is obviously impossible objectively to determine what sum of money Y might correspond to, so the legislature has chosen to apply a standard increment.19 The strengthening of the position of the landowner, while significant, is not as powerful as one might believe. Firstly, the reform of 1994, while increasing the constitutional protection of property, also added a third paragraph explicitly recognizing the right of the public to enjoy nature on private land according to the allemansrätt, thus excluding that the exercise of this right could be construed as a limitation to private property that would have to be compensated. This is particularly significant as Åsa Åslund has shown how Swedish courts handle matters involving the allemansrätt as if it must be presumed that the public has free access on the land unless the landowner manages to prove the contrary.20 Secondly, a conceptual gap has opened between property in the constitutional sphere and property in private law. While the weight of property has increased in the former, the notion of property remains largely insignificant in the latter. It is not only a matter of how many pages Swedish private law scholars devote to the concept of property but, more importantly, what role property plays in concrete legal reasoning. As well described by Claes Martinson, a typical property-law issue occurs when, for instance, A sells a car to B with the agreement of delivering the car within a week. Has A the right to use the car before the delivery? A common line of reasoning in continental Europe would be to ascertain if ownership has indeed been transferred. In Sweden, and indeed in the Scandinavian tradition in general, the transfer of ownership is not discussed at all in similar types of situations. Jurists prefer instead to discuss competing interests for the two parties.21 This stance is rhetorically justified by an interest for “real problems” as opposed to abstract legal concepts.22 This is clearly a residue of the Scandinavian legal realist movement.

1.8

Private Property Is an Institution Aimed at Allowing Exclusion from Land. Is There Any Limit to Such a Power of the Owner to Exclude Justified by a Right of Access of the Private Non-owner?

As mentioned both above and further on, the right to exclude is particularly weak in the Swedish legal tradition, thanks to the allemansrätt.

19

Prop. 2009/10:162, pp. 66 ff. Åslund (2008), pp. 238 ff. 21 Martinson (2008b), pp. 69 ff. 22 Martinson (2008a), p. 824. 20

458

F. Valguarnera

2 Questionnaire: Part II 2.1

Housing

John, Orri, Sekela and Satoshi, desperate to find a home at an affordable cost, together with their families (including several children) inhabit homes in a development project, suspended due to delayed authorizations. The four friends and their families work on both the buildings and the land to enhance their living conditions (for instance, by painting the walls and adding a little garden). After a couple of months, the legal manager of the land discovers the four families and attempts to remove them. The families refuse to leave and the manager brings a claim against them.

2.1.1

Analysis of the Case

In Sweden, the most common form of collaboration between the public (usually municipalities) and private companies for the development of an area is a so-called markanvisning, which gives an entrepreneur the right to bargain with a municipality about the construction of homes or other structures.23 The bargaining phase is usually followed by a development contract, which can grant the private company the right to buy the land or to acquire a limited right in rem called tomträtt. Both alternatives give the company possession of the land, which is of relevance for the following analysis. The substantive legal rules that are of interest for the case at hand can be found primarily in criminal legislation, rather than in explicit statements about the rights of the owner or of the possessor that are common in the private law legislation of the continental tradition. Of special interest are the rules about trespass (Chapter 4 § 6 of the Criminal Code) and disturbance of possession (Chapter 8 § 8 and 11). Chapter 4 § 6 subparagraph 2 of the Criminal Code specifically addresses the situation of someone who without authorization enters in offices, factories, and other buildings that are not inhabited. The case law is not completely clear, but this rule might not be applicable to John, Orri, Sekela or Satoshi if they found the apartments in a state of obvious abandonment. Legal scholars quote the parliamentary commission in charge of preparing the Criminal Code of 1962 saying that the purpose of the rule is to “protect areas where people work or otherwise stay”.24 One could therefore deduce that entering a building where no one is living or working falls outside the scope of the rule. In a 1976 case, the court did not consider that a group of people who had entered an abandoned villa in order to take some pictures had done so “without authorization”.25 The application of Chapter 8 § 8 and 11 is more straightforward, as Plan- och bygglag (2010:900) at Chapter 1, § 4. Berggren et al. (2017), Commentary to Chapter 4, § 6. 25 SvJT 1976 ref. s. 34. 23 24

Property Meeting the Challenge of the Commons in Sweden

459

these paragraphs sanction those who encroach on someone else’s possession or separate someone from her possession. In particular, § 11, with regard to land property, mentions violating a fence, building, excavating, occupying a road, and letting animals pasture on the land as examples of encroaching. Any disturbance of the possession, if not trivial, makes the paragraph applicable. The sanction, unless the violation is particularly grave, is pecuniary. The fact that John, Orri, Sakela, and Satoshi have disturbed the possession of the company allows the latter to initiate a summary proceeding at the Swedish Enforcement Authority (Kronofogdemyndigheten), hereinafter SEA, in order to obtain an eviction order. The proceeding is regulated in the Payment Order and Judicial Assistance Act of 199026 at § 4. The scope of the provision encompasses situations where there the occupier has not had a previous contractual relationship with the landowner (such as a lease). The proceeding is designed with the purpose of offering owners a particularly easy way to get rid of disturbances to their possessions. Therefore, the proceeding lacks the safeguards that are afforded to tenants evicted by a landlord (regulated under § 3). This simplification reverberates also on the execution of the eviction order. For instance, John, Orri, Sakela, and Satoshi, as opposed to a tenant, would not be entitled to apply for a 2-week deferment of the eviction in consideration of some special need that may arise. While § 4, in the general terms described above, is still in force, several important details have been reformed in July 2017. The reform was prompted by the recent experiences with immigrants from other EU member states (primarily Roma from Bulgaria and Romania) occupying private land, which has put on display the practical difficulties that a landowner could encounter when trying to regain possession.27 More specifically, the landowner needed to know the identity of the occupiers to apply for an eviction order. To retrieve such information has proven tricky. The police have no duty to assist the landowner in such a task and, even if the police retrieved the identity of the occupiers while investigating the crimes mentioned above, that information could only be revealed to the defendant after the conclusion of the investigation.28 Moreover, the scarce resources of the Swedish police force realistically mean that the occupation of the apartments would not be high among the investigative priorities. The reforms of 2017 have aimed at countering the delaying tactic of hiding the occupiers’ identities by adding a second subparagraph in § 4, which establishes a special proceeding called “removal” (avlägsnande). This is applied when the landowner wants the defendant to “move from the land, an apartment or other spaces in a building or in movable property.” With “movable property” the provision refers for instance to boats or cars. The removal proceeding does not require the landowner to provide the identity of the occupier if she has made a “reasonable effort” to gather such information.

26

Lag (1990:746) om betalningsföreläggande och handräckning. Prop. 2016/17:159 at 16–17. 28 See Offentlighets- och sekretesslag (2009:400) at Chapter 35, § 8 and Ds 2016:17 at 100 ff. 27

460

F. Valguarnera

The reform of 2017, however, carries a few advantages for the occupiers as well. The most significant is that the legislature has introduced a proportionality test. A second paragraph has been introduced in § 43 of the Payment Order and Judicial Assistance Act: “An application for removal may only be approved insofar the reasons to apply the measure offset the inconvenience or detriment for the defendant.” One could very well argue that such novelty was unnecessary as the principle of proportionality has been recognized by the Supreme Administrative Court to have general validity regardless of its being inscribed in legislation.29 Nonetheless, the Government in the preparatory works defended this choice by claiming it would remove any residual doubt about the duty of the public authorities to perform a proportionality test. In the words of the bill, “it is important . . . that the SEA does not automatically give priority to the interests of the applicant”.30 Neither the legislation nor the preparatory works contain an exhaustive list of the interests that could offset the landowner’s claim. The most obvious, and the most relevant for John, Orri, Sekela, and Satoshi, is the interest of having a home. Article 8 of the European Convention on Human Rights (ECHR) establishes that “[e]veryone has the right to respect for his private and family life, his home and his correspondence.” Moreover, the Court of Strasbourg has determined, as early as 1996, that the notion of “home” as used in the ECHR is not limited to legally established homes. Much more important than legal status is the “close and continuous link” to the land. However, as the preparatory works remind us, the Court has also determined that the state is under no obligation indefinitely to tolerate an unlawful occupation of the land.31 That said, the preparatory works recognize that in some cases the interest of the defendant might carry a heavier weight, for instance when the defendant has been occupying the land for a long time without warranting a reaction from the landowner or when children are involved.32 One should observe that the presence of children has already been taken into account in a case by the Swedish Supreme Court in 2013.33 The case concerned the attachment of the debtor’s and his family’s home. The Court took into account that the debtor’s children lived in the home and that the UN Convention on the Rights of the Child of 1989 states that “[i]n all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration” (Article 3).34 The Court concluded that the creditor (in this case the

29

HFD 2012 ref. 12. Prop. 2016/17:159, p. 32. 31 Winterstein and Others v. France, App. n. 27013/07. 32 Prop. 2016/17:159, p. 32. 33 NJA 2013, p. 1241. 34 While Sweden is a dualist state, international conventions should be considered when interpreting legislation. 30

Property Meeting the Challenge of the Commons in Sweden

461

Swedish Tax Authority) should first apply for the attachment of other assets (specifically the debtor’s wages). In the case at hand, the defendants can argue the SEA is therefore required to evaluate whether the consequences of an eviction order are proportionate to its purpose. Article 8 of the ECHR offers an argumentative device to John, Orri, Sekela, and Satoshi, although not an easy one. Several factors must be taken into consideration. A preliminary evaluation must be made on the status of the occupation. Can it be considered a home according to the ECHR? The scenario mentions that the time frame is “a couple of months,” which might be considered too short to establish a “close and continuous link.” However, the improvements made by the defendants might be used to argue that a link has been established. The improvements might also play a role in assessing whether there is a disproportion between the aim pursued by evicting the families and the suffering imposed on them, depending on the type of improvements as well as the resources and labor spent to realize them (moreover, if the eviction is successful, the families are entitled to compensation for unlawful enrichment, provided that the company takes advantage of the improvements). Another factor that may be of importance is the presence of children in the families, based on the aforementioned UN convention.

2.1.2

The Right to Housing in a Welfare State

The Swedish rules have emerged in a context dominated by a high reliance on welfare state solutions to solve social issues. Public agencies, rather than legal actions, are the main way of addressing poverty. The Instrument of Government states in Chapter 1 § 2 that it is the duty of the public administration to secure, among other things, the right to a job, a home, and education. These rights, however, are not considered actionable.35 On a more concrete level, social services are administered by the municipalities under the Social Services Act of 2001.36 One fundamental function of the municipal social services is to give economic support to persons who, for various reasons, cannot support themselves. The support includes expenses for housing, but usually not a direct help in finding a home.37 Exceptions to the rule are granted by the social services under special circumstances. These usually involve drug related problems or psychiatric conditions, but also families with children (with regard to the protection for minors under the already mentioned UN Convention of 1989). Of course, the effectiveness of social services is largely dependent on the flow of information concerning people in need of help. The Government has in a regulation compelled the SEA to inform social services in case of eviction of occupiers, with a

35

Nergelius (2014), pp. 130–131. Socialtjänstlag (2001:453). 37 Socialtjänstlag (2001:453), Chapter 4, § 1 and 3. 36

462

F. Valguarnera

duty to communicate if the proceeding involves children.38 This might useful in order to make the occupiers conscious about the possibilities offered by the Swedish welfare state.

2.2

Health Care

Together with other people from her neighborhood, Emanuela has organized a volunteer non-profit medical clinic in what appeared to be an abandoned building offering free services to irregular migrants who have no health insurance. Soon after, Syntech Corporation, the owner of the building, realizing that the market value of the building has increased since they acquired it, decides to sell it at a profit. Syntech would like Emanuela and her volunteers out of the building within a few days in order to sell it, and initiates an eviction action. Many people in the area are upset by this news. Emanuela defends. The operative rules are mostly the same as those taken into consideration in the answer to Q1. While the removal proceeding was conceived to facilitate the expulsion of those who occupy private land to live there, it can also be used when the occupation is motivated by other purposes. In this case, a possible (although likely unsuccessful) line of defense could be to argue the lack of reasonable proportionality between the interests of the landowner, as satisfied by the removal proceeding, and the interests of the occupiers. While the applicant Syntech has an economic interest, the defendant can display an important social interest. However, the argument is undermined by the fact that, since 2013, irregular immigrants have access to public health facilities. The access is given on the same conditions as for the resident population if the immigrant is younger than 18. If the immigrant is an adult, the access is granted only in case of procedures that cannot be delayed: maternity healthcare, abortions, and birth control counseling.39 The cost of accessing the public facilities is the same as what is required of permanent residents and is generally affordable.40 One should also consider that a duty of secrecy prevents Swedish healthcare professionals from reporting immigrants to the immigration authorities.41 As in the previous question, the institutional arrangement is shaped by the welfare state and the underlying theory that makes public agencies directly or indirectly responsible for goods such as healthcare.

Förordning (1991:1339) om betalningsföreläggande och handräckning, § 9. Lag (2013:407) om hälso- och sjukvård till vissa utlänningar som vistas i Sverige utan nödvändiga tillstånd, § 6–7. 40 The fee is largely determined by the regional healthcare provider. In the Gothenburg area it ranges from 50 Crowns—about 5 Euros—for a visit to a nurse to 300 Crowns for a visit to a hospital emergency room. See https://bit.ly/2CW8Igh (last visited 30 June 2022). 41 Offentlighets- och sekretesslag (2009:400) at Chapter 8, § 1 and Chapter 25, § 1. 38 39

Property Meeting the Challenge of the Commons in Sweden

2.3

463

Food

Marta, Mattias, and Madison, together with their families and neighbors, cultivate a communal garden on a vacant plot of land as a food source. Max Corporation, the owner of the plot of land, discovers the three families and tells them to leave. Max Corporation brings a claim against the three families for their removal and the removal of the food grown by the families on its land. The Swedish allemansrätt gives to the public the right to roam on someone else’s land as well as to pick a reasonable quantity of berries or mushrooms (see 2.6.1). However, a well-established limit to the allemansrätt is the landowner’s exclusive right to decide whether something should be built or cultivated on her property. The cultivation would therefore fall, at least prima facie, under the Criminal Code Chapter 8 § 8. A possible defense, if Marta, Mattias, and Madison find themselves in a state of grave poverty with no means to provide for themselves, would be to invoke the state of necessity, as prescribed by Chapter 24 § 4 of the Criminal Code. It should be observed that according to Swedish case law the provision would not be made irrelevant if the person in need were in some way responsible for her own predicament.42 The state of necessity cannot therefore be excluded solely by arguing that Marta, Mattias, and Madison somehow put themselves in a dire economic situation and therefore are responsible for their own misfortune. However, the state of necessity defense is naturally undermined by the presence of alternative, and prima facie legal, courses of action. The major obstacle in this case is the availability of welfare state solutions. The relevant legislation is the Social Services Act of 2001. Chapter 4 § 1 of said legislation prescribes that those who cannot provide for themselves are “entitled to assistance by the municipality’s social services (socialnämnden) for their support and for their life in general.” The responsibility of the social services extends even to irregular immigrants, although it is limited to “urgent situations.”43 Similar arguments would have relevance also for the proceeding in front of the Swedish Enforcement Agency. As in the previous answers, the relevant statute is the Payment Order and Judicial Assistance Act of 1990. However, the relevant proceeding is not the already encountered “removal proceeding” introduced in 2017, as the issue at hand is not the eviction of people living without authorization on the land but rather the older proceeding under § 4 section 1. The latter is applied to force the defendant to “make a correction when the applicant’s possession has been unduly disturbed or when some other illegitimate action has been undertaken concerning movable or immovable property.” While the statute does not explicitly mention a proportionality test for this type of proceeding, both case law and legal scholarship are clear in prescribing such a test for all administrative decisions, including the decisions of the SEA, even when not expressly mentioned.44 The argument the 42

See for instance RH 1983:16. Chapter 2a, § 2. 44 See above Sect. 2.1. 43

464

F. Valguarnera

defendants would need to make is that a decision barring them from continuing to cultivate the land would cause them a damage so grave as to offset the landowner’s interest of regaining full control over the property. Several factors will play a role in such calculation. The most important is if the defendants have other means to acquire food. This becomes especially relevant if children are involved. Another factor to consider is the concrete nuisance that the cultivation represents for the landowner. If his intent is to sell the property, how much value is lost by keeping the cultivation? It should be stressed that, as in the previous answers, the concrete chances of succeeding by invocating the principle of proportionality are slim at best, especially due to the Swedish welfare state.

2.4

Water (Rural)

Maya, Malik, and Mei depend on the water of Flumia, a nearby river. The three villagers together with other villagers in the area build aqueducts and an irrigation canal from the river to their respective homes and fields. After a few years, a private corporation diverts the water of the Flumia River. Soon after, Maya, Malik, and Mei realize that water no longer flows to the aqueducts and irrigation canal from the river. Maya, Malik and Mei sue.

2.4.1

Overview of the Swedish Rules Regulating Water Activities

The fundamental rule governing access to water, which the modern Swedish legal system inherited from the medieval provincial legislation, is that the ownership of watercourses follows the ownership of the land.45 More precisely, the owner of real estate crossed by a watercourse owns the riverbed and has control (rådighet) over the water flowing on her land.46 If the banks of a river belong to different estates, the landowners share the watercourse unless the boundaries are legally established (Land Code,47 Chapter 1 § 5). The private law notion of ownership of the water says little, however, about how the water may be used and for what purposes. The relevant provisions are instead to be found mainly in Chapter 11 of the Environmental Code.48 The general rule is that no “water activity” (vattenverksamhet)—such as building structures in a water zone, digging on the bottom of a lake to drain water from a lake or a river, etc.—can be carried out without an environmental authorization from the Land and Environmental Court (Chapter 11 § 9), unless it is “obvious” (uppenbart) that the activity in 45

See SOU 1977:27 at 126 and Nordh (1999), p. 47. Lag (1998:812) med särskilda bestämmelser om vattenverksamhet at Chapter 2, § 2. 47 Jordabalk (1970:994). 48 Miljöbalk (1998:808). 46

Property Meeting the Challenge of the Commons in Sweden

465

question will not have detrimental effects on private or public interests.49 A governmental decree has established a few exceptions where the water activity requires a simple notice to the public administration rather than an authorization. This is the case, for instance, when the “water activity” removes a maximum of 600 m3 of water a day from a watercourse.50 Moreover, a water activity can only be carried out if the advantages, from an individual as well as a public perspective, outweigh the disadvantages.51 The Supreme Court has stated this assessment must be done on a broad basis, with the aim of excluding activities that cannot be justified from a socioeconomic perspective.52 The Environmental Code is complemented by the “Act with special rules about water activities”.53 A condition for obtaining an authorization is that the applicant has control (rådighet) over the water.54 The common opinion among legal scholars, also based on clear statements in the preparatory works, is that the term “control” is used by the legislature to indicate two separate concepts: (a) Chapter 2 § 2 points at the private law notion of control that we have already encountered. If the applicant does not own the land, she can obtain control over the water through an agreement with the landowner; and (b) Chapter 2 § 4 and 5 grants “control” in specific cases, as when the water activity consists in making the resource available for general consumption or irrigation, or when the State or municipalities undertake water activities that “are desirable from a general health or environmental perspective or favor fishing” (Chapter 2 § 5). This second notion is merely procedural. It simply gives the interested party a chance to apply for the authorization without having first acquired control over the water.55 Interestingly, the wording of the statute—as well as the interpretation given to it in the preparatory works and in legal scholarship— has been contradicted by the Supreme Court in a 2012 decision. The Court determined that a municipality could not apply for an authorization solely on the basis of Chapter 2 § 5 and needed private law control over the water according to Chapter 2 § 2 as well. The decision does not appear to be logical, as it renders Chapter 2 § 5 meaningless.56

Chapter 11, § 12. The burden of proof regarding the non-damaging nature of the water activity rests on the subject interested in undertaking the activity. The term “obvious” implies a particularly heavy burden of proof, as pointed out by the Superior Land and Environmental Court. See MÖD 2015:22. 50 Förordning (1998:1388) om vattenverksamhet m.m. at § 19, p. 9. 51 Chapter 11, § 6. 52 NJA 2008, s. 55. 53 Lag (1998:812) med särskilda bestämmelser om vattenverksamhet. 54 Lag (1998:812) med särskilda bestämmelser om vattenverksamhet Chapter 2, § 1. 55 Prop. 1981/82:130, pp. 79 ff. 56 NJA 2012 s. 362. 49

466

2.4.2

F. Valguarnera

Analysis of the Case

Let us now focus on the case at hand by discussing two issues. Under what legal conditions could somebody in the position of Maya, Malik, Mei and the other villagers have constructed the aqueduct and the irrigation canal? How could they defend their access to the water from the corporation? One possibility is that some of the villagers already had control over some part of the river (i.e. they owned land on the banks of the river). In that case, the construction of a canal or of an aqueduct could be undertaken after having received an environmental authorization. Moreover, the villagers could form a so-called irrigation society to manage the aqueduct and the distribution of water.57 Another possibility is that none of the villagers owned land on the banks of the river. In that case, they would need to acquire ownership or at the very least some more limited right, such an easement, to access the water. This could obviously be done by contract. However, there is also the possibility of requesting the Land and Environmental Court to establish a so-called “official easement” (officialservitut) when authorizing the water activity, according to Chapter 28 § 10 of the Environmental Code. This possibility is limited to a few types of water activities, including those aimed at making water available for consumption. An argument that the villagers should deploy is that access to water would satisfy an important social and economic need for a substantial amount of people.58 Finally, the canal and the aqueduct could be very old, having been built by past generations on land belonging to others. The Swedish legal system recognizes acquisitive prescription as a way of acquiring ownership after 10 years (in case of good faith) or 20 years (in case of bad faith), under the condition that the title has been registered (it thus differs from the common form of usucapio in continental Europe). This mode of acquisition does not extend to other rights such as easements. However, if the canal and aqueduct are sufficiently old, the villagers could claim to have acquired the right because of possession from time immemorial (urminnes hävd). This legal institution, which was recognized in the old Land Code ( jordabalken) from 1734, was abolished with the new Land Code of 1970. The old provision maintains nonetheless some relevance as the legislature was careful to clarify that rights that had emerged before the entering into force of the new code (1 January 1972) were not going to be limited.59 In other words, the villagers would need to prove that a possession from time immemorial had occurred before 1972. The relevant provision is Chapter 15 § 1 of the old Land Code of 1734, which defined possession from time immemorial as the unhindered enjoyment, possession, and use of a right “for such a long time that no-one remembers or knows how the

Lag (1998:812) med särskilda bestämmelser om vattenverksamhet at Chapter 4, § 1. This follows from Chapter 2, § 15 of the Instrument of Government that protects property. The provision states that property can be encroached upon solely to provide for “an important public interest”. 59 Lag (1970:995) om införande av nya jordabalken, § 6. 57 58

Property Meeting the Challenge of the Commons in Sweden

467

rightsholder’s ancestors or sellers acquired it.” The timeframe is not defined, but a conventional number referred to in Swedish legal scholarship is 90 years. This means that the right of the villagers must have been enjoyed since before 1 January 1882.60 The most effective instrument for Maya, Malik, and Mei to react against the sudden disruption of the waterflow is actively to participate in the environmental authorization procedure. To divert the water of a river is considered a “water activity” (vattenverksamhet) under Chapter 11 § 3 of the Code. The authorization procedure entails an environmental assessment procedure. Chapter 6 § 30 requires, among other things, a consultation with the concerned public authorities as well as with the members of the general public whose interests can presumably be impacted by the water activity. Maya, Malik, and Mei would therefore be entitled to participate in such consultation before the private corporation can divert the waters of the river. In such a forum, Maya, Malik, and Mei should argue that the advantages of diverting the waters of the river, from a social and individual point of view, do not outweigh the potential damages to them, to the rest of the community, as well as to animals and plants.61 The legislative basis for such a test can be found in Chapter 11 § 6. It should also be noted that the provisions of the Environmental Code must be read in the light of the first paragraph (Chapter 1 § 1) that establishes the principle of sustainable development, which is to guarantee the present and future generations a healthy and good environment. The dialogue among the corporation, the public authorities, and the general public shapes the environmental impact description (miljökonsekvensbeskrivningen), which constitutes a significant portion of the factual ground on which the decision will be based.62 Maya, Malik, and Mei also have the opportunity to react when the waters have already been diverted, either because the corporation simply acted in the absence of an authorization, because it violated the conditions of the authorization, or because the conditions imposed by the court proved insufficient to prevent an unacceptable damage to private and social interests. In the first case, the villagers can report the problem to the County Administrative Board (CAB—länsstyrelsen), which acts as a monitoring authority with the duty of controlling compliance with the rules of the Environmental Code (Environmental Code, Chapter 26 § 1). The CAB has a duty to act either on its own initiative or after having received a notice from other parties. The CAB is compelled, under Chapter 26 § 2, to report its findings to the police or the public prosecutor where it has reasons to suspect that a crime has been committed. Chapter 29 of the Code includes a broad list of environmental crimes. These include the act of having initiated an activity without the required authorization, which is sanctioned with a fine or with a maximum of 2 years in prison. More importantly, the CAB has the power to order the corporation

60

SOU 2006:14, p. 382 and Undén (1965), p. 144. For an example of how the courts apply this test see NJA 2008 s. 3. 62 Chapter 6, § 20 ff. 61

468

F. Valguarnera

to desist from its activity and restore the impacted area to its previous conditions (Chapter 26 § 9). Finally, the villagers also have the possibility to sue for damages and injunctive relief, according to Chapter 32 § 1 and 12 of the Environmental Code. Injunctive relief, according to the literal content of the provision, can only come into question when the activity has been carried out in the complete absence of an authorization. The villagers together with other subjects damaged by the corporation could start a class action (grupptalan).63 Moreover, a private association that, according to its charter, promotes the interest of the environment can also sue, but only for injunctive relief.64 If the corporation merely violated the conditions attached to the authorization— for instance by extracting too much water from the river—the villagers can, as previously seen, alert the CAB, which will realistically order the corporation to desist from its behavior. The villagers will also be entitled to damages, including pure economic loss (if the damages are significant or if they are the result of a crime).65 The villagers will not, however, be able to sue for injunctive relief. Finally, we need to consider a scenario where the corporation has not acted in violation of the authorization but the conditions still prove insufficient to safeguard the interests of other parties. In such a case, two main interests fight each other. On the one hand, the authorization is now res judicata and cannot, as a general rule, be removed in the interest of legal certainty. On the other hand, the protection of health and the environment carries a substantial weight, capable sometimes of offsetting legal certainty as a guiding principle. This means that public authorities have some limited power to intervene even in the presence of a valid authorization. In particular, the monitoring authority (in this case the CAB) can submit an application to the Land and Environmental Court to have the conditions pertaining to the authorization changed. This can be done for several reasons enumerated under Chapter 24 § 5. The most relevant for the case at hand are: (a) if the corporation has deceived the authorities during the authorization process and (b) if a disturbance has emerged that was not taken into consideration during the authorization procedure.

2.4.3

Political Background

The regulation of water rights in Sweden has developed over many centuries; it is hard adequately to summarize such a long and complex history. In broad terms, however, it is possible to identify two main factors that seem to have characterized the Swedish legal tradition for at least the last two centuries. The first, since the industrialization of Sweden during the nineteenth century, is the competition between the interests of industrial production (especially the production of

Chapter 32, § 13. Chapter 32, § 13. 65 Chapter 32, § 1, par. 2. 63 64

Property Meeting the Challenge of the Commons in Sweden

469

electricity) and the historically older interests of the rural world (mainly fishing and irrigation). The second is the absence of a neat distinction between public and private law. This trait can be observed in the content of Sweden’s legislation since the Middle Ages, where public and private law issues were mixed together (Robert Nordh has called it a “private-public law mess”66), as well as later on in the combination of private and administrative law that is applied to handle concrete disputes. As the case of the villagers displays, ownership over water resources is far from being the key to solving all conflicts over the use of the water. Ownership (as well as other interests in the use of water) can grant a party a seat at the administrative procedure where the authorization is being determined, as well as standing with regard to challenging an unfavorable decision. Private law control over the water is not always sufficient to exclude others from the use of it, as when the “official easements” are established to satisfy for-irrigation water. As we will see below when discussing access to nature and when confronting the rules about mineral exploitation, a prominent trait in the Swedish legislation is that pragmatism often trumps the right of the owner to exclude others from a resource. As discussed above in the first part of the questionnaire, this trait can explained (at least in part) by the low political profile of property in Sweden, which has prevented the relationship between the owner and her goods to be described as “sacred.”

2.5

Water (Urban)

Jose, Jasmine, and Horatio are three friends that inhabit an apartment together in a city, Flumiapolis. Following a large increase in the price of water (200% in one year), the three friends fail to pay their water bills. After failing to pay their third bill, the water management cuts off their access to the water supply. Jose, Jasmine and Horatio sue.

2.5.1

Analysis of the Case

The distribution of water for ordinary use in households is regulated by the Water Services Act of 2006.67 Section 6 of said statute burdens municipalities with the responsibility of providing water services where they are needed for sanitary or environmental reasons. Municipalities can form municipal corporations to provide water services and avail themselves of partnerships with private actors. However, the 2006 statute excludes privatization of water services by imposing on the municipalities the obligation to satisfy the needs of the population through “public water

66 67

Nordh (1999), p. 81. Lag (2006:412) om allmänna vattentjänster.

470

F. Valguarnera

facilities” (allmän va-anläggningar), which are defined as facilities under the legal control of the municipality (§ 2). The Water Services Act also regulates the fees the manager of the service can require from users (§ 30). The fundamental rule is that the fees cannot exceed the costs required to arrange and to run water distribution. Subparagraph 2 of the same provision gives the manager the ability to allocate capital to a fund provided that: such capital is necessary for future investments, there is an investment plan, the fund will be used for a specific purpose that is accounted for in the investment plan, the plan specifies when the capital in the fund will be used, and the plan contains all other information necessary to assess whether the increase of the fee is justified. This rule is perfectly coherent with the so-called “prime cost principle” (självkostnadsprincipen) that governs the activities of Swedish municipalities. According to Chapter 8 § 3 c of the Municipality Act of 1991, municipalities are prevented from taking fees that are higher than the costs of services they provide. As for the legality of cutting off access to the water, § 43 of the Water Services Act allows such a measure, provided that: (1) the landowner has failed to pay her fee or in other ways failed in her duties; (2) the neglect is substantial; (3) the measure does not have an impact on human health; (4) the manager has urged the landowner to make a correction and has given her a reasonable amount of time to do so;68 and (5) the landowner, despite the urging under the previous point, has not corrected her behavior. The preparatory works to the Water Services Act contain some important guidelines for the interpretation of § 43.69 Firstly, it appears clear that the rule is meant to be applied parsimoniously. Secondly, it is often not justified to cut off water completely: simply to limit the waterflow should oftentimes be sufficient. Thirdly, while little is said about the phrase “impact on human health,” the preparatory works imply that the manager, in case of prolonged interruptions of service, has a duty to indicate to the landowner an alternative source of water within walking distance or to provide a water tank. This duty seems not to be limited to interruptions of service due to malfunctions, but also as a sanction against a landowner who refuses to pay her bills.70 It can also be inferred that cutting off water would indeed have an impact on human health if someone in the household, because of disease or old age, could not take advantage of the alternative source of water. The best way for Jose, Jasmine, and Horatio to respond to such a steep rise of water fees would be to go to court and seek a judgment declaring that the new tariffs are illegal. If the three friends stop paying their bills they risk being cut off; however, they can go to court, claim that the fees are too high, and ask the court to take an interim decision to put the water back on.

68

No specific timeframe is indicated in the act, but the preparatory works to the previous legislation (SFS 1970:244), which had a similar rule, stated that the landowner who neglected to pay her bills should be given at least 2 weeks. See prop. 1970:118 at 155. 69 SOU 2004:64 at 378 ff. 70 See SOU 2004:64 at 379 and prop. 2005/06:78 at 67.

Property Meeting the Challenge of the Commons in Sweden

471

If the three friends are in a personal or economic situation that prevents them from paying the water bill, they are entitled to assistance by the social services of the municipality under Chapter 4 § 1 of the Social Services Act of 2001 (see also 2.3).

2.5.2

Policy Questions

The Instrument of Government clarifies in its opening provision that the Swedish democracy ( folkstyre) is realized through a parliamentarian and representative government as well as through municipal autonomy (Chapter 1 § 1). In fact, municipalities have played a crucial role in the administration of Sweden, including the delivery of most services to its population, since a major reform of their structure in 1862.71 It is therefore not surprising that municipalities are in charge of providing water services. Close to 100% of the urban population is connected to a public water distribution service (allmän va-anläggning).72 The ideological reasons for keeping public water services under the control of the municipalities have been stated with clarity in the governmental memo attached to the Water Services bill submitted to Parliament in 2006. The memo explains that water services are a natural monopoly and that they constitute a good of primary importance for a satisfactory standard of living. Water services must therefore be considered a matter of public concern and should not be managed for profit.73

2.6

Nature

Hamid, Heba, and their two children used to spend many weekends walking and playing in one of the few green areas at the outskirts of the city where they live. The land belongs to a private owner who lives in a small house near the lake. Corporation C acquires the green area and converts it into a members-only country club. Hamid and Heba sue. A local environmental group also sues claiming access to what they consider a natural commons.

2.6.1

Overview of the Allemansrätt

A legal institution typical of the Swedish tradition is the so-called allemansrätt, which literally means “every man’s right.” I will discuss its historical roots below, while addressing the meta legal formants. The allemansrätt is considered by most Swedes as a significant component of the country’s cultural heritage. It allows every

71

Nergelius (2014), p. 343. Prop. 2005/06:78 at 21–22. 73 Prop. 2005/06:78 at 26–27. 72

472

F. Valguarnera

person, including non-citizens, to roam freely on private land, gather a limited quantity of berries and mushrooms, bathe in a lake or in the sea and even plant a tent for about a day or two. The allemansrätt is not regulated or defined in a specific statute, although it is mentioned in a few legislative acts. Of particular interest is Chapter 2 § 15 of the Instrument of Government (Regeringsformen), the main constitutional document, which protects private property. Since 1994, the provision contains a paragraph stating that “[e]verybody is entitled to have access to nature according to the allemansrätt.” The function of the paragraph is clearly to avoid that a constitutional strengthening of private property—which was the main objective of the 1994 constitutional amendment—would weaken the right of accessing nature. Chapter 7 § 1 of the Environmental Code states instead that everybody who enjoys the allemansrätt must display consideration and caution when engaging with the natural world. Some fundamental rules, that indirectly define the limits of the allemansrätt, can be found in the Criminal Code (brottsbalken). Chapter 12 § 4 sanctions those who without authorization and outside of preexisting roads access somebody else’s tomt (the term is not easy to translate, and will soon be explained), over a planted area, or over other land that can be damaged thereby. A tomt, in the context of the provision, is the area surrounding a dwelling where the landowner’s privacy (hemfrid, literally “peace of the home”) is guaranteed. There is no exact indication how wide the area is. However, criteria have been developed by the courts and legal scholarship. Most importantly, the tomt depends on the area that the landowner can view from her home. High trees and hills that obstruct the view narrow down the tomt.74 While the main social function of the tomt is to safeguard privacy, the other types of area included in the provision aim at protecting the economic interests of the landowner. Passersby taking a stroll on an area where flowers or young trees have been planted obviously risk causing damage. The same goes for newly sown fields. Fields covered by snow are more resistant and can usually be walked over.75 As for the possibility to pick berries and mushrooms, the key provision is Chapter 12 § 2a of the Criminal Code. The provision sanctions the taking without permission of certain products of the forest, such as “growing trees or grass or trees that have fallen because of the wind or rocks, gravel, peat or other things that have not been processed”, as well as “twigs, branches, nuts, bark, leaves, bast, acorns, nuts or resin.” The provision has usually been interpreted a contrario not to cover other fruits of the forest such as berries and mushrooms.76 A general rule, which limits any individual’s enjoyment of the allemansrätt, is that the disturbances to the landowner should not exceed a “point of tolerance” (toleranspunkt).77 What this entails is not always clear and needs to be assessed in

74

RÅ 1961 at 73, RÅ 1963 K 1288, and MÖD 2004:53. In the last case, the court adopts a definition found in the preparatory works to the Shore Protection Act of 1952. See Prop. 1952:187 at 50. 75 Åslund (2008), p. 17. 76 NJA 1986 at 637. 77 Ljungman (1943), p. 263.

Property Meeting the Challenge of the Commons in Sweden

473

the specific context of a case. The Swedish Supreme Court has determined that a landowner did not need to tolerate a particularly high number of rafting enthusiasts entering on his estate and causing damages to the vegetation and to the banks of a river. However, the facts of the case were quite peculiar, as the high number of rafting tourists was due to a neighbor who rented rafting equipment and pointed to the river of the claimant as an optimal location for engaging in their favorite sport. In fact, the claim brought by the landowner was not aimed at any individual rafter (also considering the fact that a single rafter probably did not surpass the “point of tolerance,” and that such an effect was rather the result of the rafters’ collective activities) but against his neighbor for “channeling” the flow of tourists onto the land.78

2.6.2

Analysis of the Case

The allemansrätt plays in Hamid and Heba’s favor. Under Chapter 26 § 11 of the Environmental Code, if the corporation decides to enclose the land to exclude passersby, the CAB has the power to compel the landowner to open a gate in the fence to allow the public to enter, provided that the area is of “significance for outdoor life.” In fact, if the sole purpose of the fence is to exclude the public, the CAB has the power to order the complete removal of the fence. If the corporation intends to transform the area (for instance by arranging tennis courts or golf courses), the allemansrätt may represent a hurdle in the administrative procedure to issue zoning regulations (detaljplaner). Zoning regulations are issued by the municipality and determine the possible uses of different areas. Zoning regulations and construction permits are regulated by the Planning and Building Act (plan-och bygglagen) of 2010. Chapter 2 § 2 of the statute refers to the so-called “husbandry rules” (hushållningsregler) contained in Chapters 3 and 4 of the Environmental Code. These are rules whose main objective is to secure the rational utilization of land resources so that each type of land is used for the most appropriate purpose. Of particular interest for the case at hand is Chapter 3 § 6 of the Environmental Code, which states that land and water resources that: are important from a general point of view because of their natural or cultural value must, as much as possible, be protected from interventions that may damage the natural and cultural environment. The need for green areas in urban areas or in the vicinity of urban areas must be taken into particular account.

A second obstacle, at least indirectly related to the allemansrätt, concerns the rules about the “protection of the shores” (strandskydd), which can be found in Chapter 7 § 13–18 of the Environmental Code. The rules apply to the seashore as well as to lakes and watercourses. The fundamental rule is that buildings may not be erected— or even modified if it “makes it more difficult for the public to enter areas where they otherwise would have had free access”—within 100 m from the shoreline nor is it 78

NJA 1996 at 495 e Westerlund (1995), p. 97.

474

F. Valguarnera

possible, within the shore protection area, to undertake activities that will considerably change the living conditions for the flora and the fauna (Chapter 7 § 14 and 15). The express objective of the rule is to safeguard the possibilities of the public to have access to the shores under the allemansrätt and to preserve a good environment for plants and animals living on land and in water (Chapter 7 § 13). The municipality may decide on exemptions from the shore protection rules for “particular reasons.”79 These reasons are detailed in the Code and can be summed up as factors that diminish the importance of the shore for outdoor life and the environment (such as when “the area has already been exploited in such a way that it has no importance for the goal of the shore protection rules”80) or interests that offset such goals (for instance, if the area “needs to be used to satisfy an important public interest that cannot be satisfied elsewhere”81). Let us now examine what procedural possibilities Hamid and Heba have to react against the corporation. Firstly, they can argue for the importance of the area for outdoor life already during the administrative procedure for issuing zoning regulations. Chapter 5 § 11 of the Planning and Building Act gives the residents the possibility to be heard. Secondly, Hamid and Heba can challenge the zoning regulation in the Land and Environmental Court.82 Their standing, however, is uncertain. Two requirements must be fulfilled. The first one is that they must already have raised their concerns in writing during the administrative procedure.83 The second requirement is contained in § 22 of the Administrative Act ( förfaltningslagen), which gives standing to “those who the decision concerns.” The phrasing, conceived to fit a broad spectrum of administrative subject matters, is clearly quite open. The courts have nonetheless been restrictive in its application, to keep the number of people able to challenge administrative decisions under control. Standing requires a qualified interest. In the case of zoning regulations, the traditional view is that the decision can be challenged by those who live in the area directly affected by the zoning regulation, or in its immediate proximity.84 Traditionally, the possibility for an individual to access nature by virtue of the allemansrätt has not been considered a sufficiently qualified interest under § 22.85 An alternative course of action would be for Hamid and Heba to contact an environmental organization. Such organizations—provided they have at least 100 members, have been active in Sweden for at least 3 years, are non-profit, and have as their main purpose environmental protection86—can challenge a zoning plan (a) if it implies an exemption from the shore protection rules under Chapter 7 of the

Chapter 7, § 18 b. Chapter 7, § 18 c 1). 81 Chapter 7, § 18 c 5). 82 Planning and Building Act, Chapter 13, § 2 a. 83 Planning and Building Act, Chapter 13, § 11. 84 NJA 2017 s. 421. 85 RÅ 1987 not. 314. 86 Environmental Code, Chapter 16, § 13. 79 80

Property Meeting the Challenge of the Commons in Sweden

475

Environmental Code or (b) if the zoning plan can be presumed to have a significant environmental impact.87 The Planning and Building Act at Chapter 4 § 34 lists activities that typically have a significant impact, including the building of a “leisure village” ( fritidsby) with the associated facilities outside of a cohesive settlement. A country club is not a “leisure village” (which is usually a group of cottages) but it may contain a similar set of facilities. Of course, the significance of the environmental impact could be made even clearer if the land belonged to a so-called Natura 2000 area or were the habitat of protected animal species and plants. In addition, environmental organizations have standing to challenge all authorizations issued under the Environmental Code. This applies, for instance, to environmental authorizations that may be required to build some of the facilities as well as to the decision of the municipality to exempt the corporation from the shore protection rules.

2.6.3

Policy Questions

I have already discussed property in Sweden above, in the first part of the questionnaire. I refer to it here for its obvious relevance for understanding the cultural roots of the allemansrätt. The right of the public to access nature in Sweden is linked to a pragmatic attitude towards private property. There are, however, other forces that in more recent times have contributed to the rise of the allemansrätt. It must be stressed that, unlike what is often reported, the allemansrätt—while undeniably resting on an historically old foundation—is not in itself old.88 The word itself is not reported in Swedish literature until the end of the nineteenth century, and the concept was not widely known until the 1940s.89 One could say that for centuries the question of whether people entered on private land was treated as a non-issue, with the exception of those instances where passersby risked damaging some tangible interest of the landowner (for example, by cutting down trees or picking an excessive amount of natural products of various sorts). What we today call the allemansrätt was rather a grey non-legal area. The transformation towards a legal institution in the fullest sense of the word, eventually leading to its inclusion in the Instrument of Government, was heavily stimulated by the redistributive policies of the social-democratic party, which dominated Swedish political life for much of the twentieth century. Simply put, the allemansrätt was a way of satisfying the need of the working class to have access to spaces for leisure

Planning and Building Act, Chapter 13, § 12 and 13. This has been pointed out in a book that has the undeniable merit of digging up historical material of great interest, although the interpretation of said material is often affected by a clear political animosity, leading to the conclusion that the allemansrätt is a mere myth. See Wiktorsson (1996). My own conclusions are much less extreme. See Valguarnera (2013a), pp. 204 ff. and are briefly summarized in this text. 89 Åström (1899), p. 126. 87 88

476

F. Valguarnera

activities.90 This need had been growing because of the social reforms enacted since the 1930s, for instance establishing the workers’ right to paid vacations, which created the opportunity for free time in the outdoors. At the same time, the increased wealth experienced in Sweden after World War II put pressure on the most desirable locations, especially on the coasts. The allemansrätt acted, in other words, as a mechanism to prevent a class-based exclusion from natural beauty.

2.7

Territory

Yellowriver is a small village sitting within a large and remote forest area. The government grants to Gold Masters Corporation permission to dig seeking for gold in order to develop a nearby mine. Aware of the high polluting risks of gold extraction to the nearby river, villagers erupt in protest and attempt to stop the project by legal means. Do they have any available action to protect the river— either as individuals or as an endangered community?

2.7.1

Analysis of the Case

In the Swedish legal system, the right to undertake a search for a variety of minerals, including gold, and the right to extract them are partially detached from ownership. Under the Mineral Act of 1991 (minerallagen), a non-owner needs an authorization to seek minerals (undersökningstillstånd) in an invasive way (for instance by digging; non-invasive searches are instead considered to fall under the allemansrätt91) and a concession to extract them (bearbetningskoncession). Both the authorization and the concession are given by a public authority: the Mining Inspectorate of Sweden. The landowner does not generally need an authorization to search for minerals, but she needs a concession to extract them, unless she is acting solely to satisfy “domestic needs” (husbehov).92 The inhabitants of the village, the municipality, and an environmental organization with at least 100 members93 can challenge the concession issued by the Inspectorate. The challenge would have to be brought to the government and then eventually to the Supreme Administrative Court. The Mineral Act prescribes that the concession is subject to the application of Chapters 3 and 4 of the Environmental Code, the so-called “husbandry rules” that aim at the rational use of land resources.94 These may provide some solace, depending on the concrete features of the area

90

Wiktorsson (1996), p. 114. Prop. 1974:146 at 79. 92 Mineral Act, Chapter 5, § 2. 93 See the answer to the previous question. 94 Mineral Act, Chapter 4, § 2. 91

Property Meeting the Challenge of the Commons in Sweden

477

where the mine is going to be placed. The chapters distinguish between areas that “are of importance” for certain activities—such as outdoor life, fishing, reindeer husbandry, agriculture, etc.—and areas of “national interest” (riksintresse). The main difference between these two types of areas is the former “has to be protected as far as possible”—and thus can be sacrificed in the face of sufficiently strong interests pointing in another direction—while the latter “must be protected.” Chapter 3 makes it possible for the decision-maker to determine if an area is of national interest, although in practice the decision-makers often rely on the opinion of specific agencies (such as the Environmental Protection Agency, Naturvårdsverket). In Chapter 4, the legislature itself declares certain areas of the country to be of national interest. If Yellowriver is not located in an area of national interest according to Chapter 4, the inhabitants would simply have to argue that the gold mine is going to damage the special value of the area. If that is not the case, the inhabitants can argue that the decision-maker should have considered the area of national interest. However, it is also possible that an area is of national interest for competing reasons. For instance, an area could be of national interest because of its value for outdoor life (Chapter 3 § 6) and because of its mineral resources (Chapter 3 § 7). In this case, Chapter 3 § 10 establishes that priority should be given to the use of the land that “in the most appropriate way favors a long-term management of the land, the water resources and the physical environment in general.” The vagueness of the guideline grants the public administration ample discretion in weighing different national interests. This is significant because the review of the Supreme Administrative Court of the Government’s decision is limited to matters of legality and evaluation of evidence, and do not extend to political opportunity.95 The mining concession does not absolve the corporation from the duty of applying for an environmental authorization from the Land and Environmental Court.96 An important simplification, however, is that the Land and Environmental Court will not be able to make an independent determination according to Chapters 3 and 4 of the Environmental Code.97 However, the authorization can still be challenged on the ground that the measures taken by the corporation to protect public health and the environment are insufficient. The environmental authorization can be challenged by the inhabitants of the affected municipality98 or by an environmental organization (see above at 2.6.2).99

Lag (2006:304) om rättsprövning av vissa regeringsbeslut, § 1 and 7. Miljöprövningsförordning (2013:251), Chapter 4. 97 Mineral Act, Chapter 4, § 2. 98 Environmental Code, Chapter 16, § 12. 99 Environmental Code, Chapter 16, § 12. 95 96

478

2.7.2

F. Valguarnera

Policy Questions

The rules about mineral resources show that, while property is historically kept in relatively low regard, the interest of production plays a significant role. So much so, in fact, that the interest of the landowner is clearly subordinated to the interest of allowing mineral resources to be controlled by those with the economic power to extract them. Variations of this system, separating land ownership from the control over mineral resources or from the right to extract them, can be found through Swedish history. For instance, already in the sixteenth century, the importance of mineral extraction was so great for the national economy that the Crown invoked royal privilege (regalrätt) over mines. This solution proved soon to be inadequate as it gave landowners great incentives to try hiding mineral resources to keep control over the land. The next step, during the eighteenth century, was instead to give finders of mineral resources the strongest possible incentive to bring their discovery to public authorities. This was done, on the one hand, by renouncing the Crown’s ownership claims, and, on the other, by treating mineral resources as res nullius, arguing that land ownership did not extend to the resources under the ground and that the finder became owner of the minerals by occupation.100 While the interests of environmental and health protection are not as clearly disregarded as land ownership, one could still argue that the rule in the Mineral Act that prevents the Land and Environmental Court to make an independent assessment according to the “husbandry rules” is a significant concession to the interests of production. As observed by Michanek and Zetterberg, this is a unique arrangement. Apparently, the Mining Inspectorate is considered to have an ability to, once and for all, make complex environmental assessments that other public agencies, such as the Transportation Administration, do not possess.101

2.8

Culture

State funding to a nonprofit local theater is cut in response to austerity measures; as a result the theater will be sold to a private company that wants to operate the theater at a profit. Evgenia, Misha, and Katia are actors, and along with other concerned citizens that protest the sale and other workers, they occupy the theater, and continue the theater’s programming for the public through a combination of volunteer work and donations. The municipality brings suit to evict against Evgenia, Misha, Katia, and the other actors. Variation: Assume that the actors obtain permission to stay and to use the theater provided that they run it as a commons in the interest of culture and future generations. What legal form should they use to this purpose?

100 101

Bäckström (2015), pp. 23 ff. Michanek and Zetterberg (2012), pp. 489–490.

Property Meeting the Challenge of the Commons in Sweden

479

The answer to this question follows the same logic as in Sects. 2.1, 2.2 and 2.3. The act of occupying a building other than a home is punishable as trespass under Chapter 4 § 6 of the Criminal Code, with sanction ranging from a fine to 2 years in prison. The municipality can use the removal procedure Payment Order and Judicial Assistance Act of 1990 at § 4 to regain control over the building. As in the previous answers, it is possible for Evgenia, Misha, and Katia to argue for a lack of proportionality between the interest of the municipality and the disadvantages for the actors as well as the theater-going public. Such an argument, however, is not likely to succeed. The best legal form to run the theater and its collective resources might be that of a non-profit organization (ideell förening). The form is very flexible and is used for a variety of different social purposes, ranging from chess clubs to trade unions. Non-profit organizations are legal persons, which would isolate the members from liability for the eventual debts of the organizations, and tax exempt, as long as they pursue a socially desirable goal (as for instance promoting culture) and reinvest their income in the activity.102

2.9

Climate

Diletta, Flavio, and Antonella became aware of the reality of climate change when their school teacher decided to work on reading materials that were circulated at the time of the 2015 Paris Agreement on Climate Change. Although just turned 18 years old, all the three of them took the information quite seriously and started to worry about the gloomy expectations they learnt about: dangerous rise in the global temperature, water scarcity, droughts, forest fires, possible displacement of populations, etc. After the scandal involving the Popcar Corporation, concerning the manipulation of computer system for the control of emission in cars, Diletta, Flavio, and Antonella are struck by the quite feeble sanctions inflicted to the car manufacturer—not only in their jurisdiction. For this reason Diletta, Flavio, and Antonella decide to take action in the interest of future generations. They sue their government and the global corporation Popcar.

2.9.1

Acting in Court for a Better Air Quality

In the suggested scenario, it would in theory be possible for Diletta, Flavio, and Antonella to sue Popcar for damages. The suit could be brought under the Product Liability Act (produktansvarslagen)103 and the plaintiffs could even choose to

102

Inkomstskattelag (1999:1229), Chapter 7. Produktansvarslag (1992:18). The tort liability rules of the Environmental Code (Chapter 32) are only applicable to fixed pollution sources. While roads are included, individual cars are not. 103

480

F. Valguarnera

proceed with a class action (which in Sweden follows an opt-in, rather than an opt-out, model, meaning that an active choice is required for membership in the class).104 However, it would not be realistic to expect a favourable outcome. This pessimistic prognosis is mainly due to the difficulty of linking specific damages (for instance, respiratory diseases) to the specific automobiles produced by Popcar.105 A more promising approach would be to hold the Government responsible for possible violations of so-called “environmental quality norms” (miljökvalitetsnormer), regulated in Chapter 5 of the Environmental Code. Of particular interest, of course, are the norms related to air pollution and contained in the Air Quality Regulation of 2010. The regulation is issued by the Government. However, the Government discretion is limited by EU secondary legislation, such as the Air Quality Directive.106 The norms are of particular relevance for the public authorities in charge of planning and authorizing activities that can have an impact on the environment. Chapter 2 § 7 of the Environmental Code states, as a general rule, that an authorization must be denied activities that in a “non-insignificant way” contribute to the violation of environmental quality norms. Originally, the Swedish legal system did not have effective remedies against public authorities that chose to remain passive in the face of pollution exceeding the threshold limits established in the environmental quality norms. The picture, however, changed in 2011 by initiative of the Superior Land and Environmental Court, which recognized the right of an individual to challenge the decision of a public authority not to recall an environmental authorization. The court referred generically to “Sweden’s international commitments,” which has been interpreted as a reference to Article 9(3) of the Aarhus Convention.107 The linkage of the national law to EU-law is also of crucial practical importance. The European Court of Justice has determined the direct applicability of the environmental quality norms contained in EU directives.108 Diletta, Flavio, and Antonella could therefore choose to monitor the air quality in their area and challenge the passivity of the public authorities in court.

2.9.2

Policy Questions

A case similar to the one described has recently been decided by the Court of Appeals in Stockholm. Vattenfall AB, a corporation owned in its entirety by the Swedish state, has over time acquired German companies dealing with coal mining and coal-based energy

104 Lag (2002:599) om grupprättegång, § 14. For an account of the development of class action in Sweden see Lindblom (2008), pp. 91 ff. 105 Hellner and Radetzki (2010), p. 330. 106 Directive 2008/50/EC. 107 Michanek and Zetterberg (2012), p. 174. 108 Michanek and Zetterberg (2012), pp. 172 ff.

Property Meeting the Challenge of the Commons in Sweden

481

production. In April 2016, Vattenfall sought and received an authorization from the government to sell several coal enterprises to the Czech company EPH. The sale gave EPH the possibility, among other things, to open four new coal mines and prolong the activity of the mines that had already been established. A network of Swedish environmental associations sued the government for damages, arguing that the sale, because of the foreseeable increase in atmospheric pollution, was in violation of the duties of the State. In particular, Chapter 1 § 2 of the Instrument of Government states that the State shall support sustainable development. The plaintiffs also argued that the Government had violated Articles 2 and 8 of the European Convention on Human Rights. The plaintiffs claimed a symbolic sum (one crown) in damages. The first instance court dismissed the lawsuit, claiming it was manifestly unfounded. The court reasoned that the plaintiff’s claim was based on a hypothetical scenario (the expansion of coal mining by EPH) and that no actual harm had been caused. A mere risk of damage cannot warrant damages. The court discussed the alleged violation of Articles 2 and 8 of the ECHR, noticing that the European Court of Human Rights had condemned states that had failed to protect their populations from environmental pollution, but only in situations where a disturbance had already manifested itself. Again, the hypothetical nature of the plaintiffs’ reasoning undermined their claim. The decision was later upheld by the Court of Appeals in Stockholm. While the aforementioned case is an interesting attempt, in many respects similar to the Dutch Urgenda case, at trying to enforce the government’s proclaimed commitment to sustainability, the particular facts of the case probably do not lend themselves to a favourable outcome.

References Alexander GS (2002) Comparing the two legal realisms – American and Scandinavian. Am J Comp:131–174 Åslund Å (2008) Allemansrätten och marknyttjande - Studier av ett rättsinstitut. Linköping Studies in Arts and Science, Linköping Åslund Å (2017) Gemensam användning av skog och mark. Jure, Stockholm Åström A (1899) Svensk vattenrätt. Norstedt, Stockholm Bäärnhielm M (1970) När bönderna blev självägande. Svensk Juristtidning:337–345 Bäckström L (2015) Svensk gruvrätt – En rättsvetenskaplig studie rörande förutsättningarna för utvinning av mineral. Luleå Tekniska Universitet, Luleå Berggren N-O, Bäcklund A, Johansson S, Leijonhufvud M, Munck J, Trost H, Träskman PO, Victor D, Wennberg S, Wersäll F (2017) Brottsbalken (1 July 2017), Commentary to Chapter 4 §6 Bruncevic M (2018) Law, art and the commons. Routledge, New York Hägerström A (1953) Inquiries into the nature of law and morals. Almqvist & Wiksell, Stockholm Hellner J, Radetzki M (2010) Skadeståndsrätt, 8th edn. Norstedts, Stockholm Lindblom PH (2008) Grupptalan i Sverige: bakgrund och kommentarer till lagen om grupprättegång. Norstedts Juridik, Stockholm

482

F. Valguarnera

Ljungman S (1943) Om skada och olägenhet från grannfastighet. Almqvist & Wiksell, Uppsala, p 263 Lyles M (2006) A call for scientific purity – Axel Hägerström’s critique of legal science. Institutet för rättshistorisk forskning, Stockholm Martinson C (2008a) Ejendomsrettens overgang - Norden kontra verden, 38:e nordiska juristmötet i Köpenhamn. The 38th Nordic Law Meeting (Copenhagen, 2008), p 824. https://bit.ly/2X17J5e. Last visited 30 June 2022 Martinson C (2008b) How Swedish lawyers think about ‘ownership’ – are we just peculiar or actually ahead? In: Faber W, Lurger B (eds) Rules for the transfer of movables – a candidate for European harmonization or national reforms? Sellier, Munich, pp 69–95 Michanek G, Zetterberg C (2012) Den svenska miljörätten, 3rd edn. Iustus, Uppsala Nergelius J (2014) Svensk statsrätt, 3rd edn. Studentlitteratur, Lund Nordh R (1999) Talerätt i miljömål – Särskilt om vattenrättsliga ansökningsmål samt om talan rörande allmänna intressen. Iustus, Uppsala Sandell K (2011) Del 1 Allemansrätten och dess framtid – några samhällsvetenskapliga perspektiv. In: Sandell K, Svenning M (eds) Allemansrätten och dess framtid - Utredning om allemansrätten, Naturvårdsverket - Rapport 6470, Stockholm, pp 5–143 Sundell JO (2007) Svensk fastighetsrättshistoria. Iustus, Uppsala Undén Ö (1965) Svensk Sakrätt II - Fast egendom, 5th edn. Gleerups Förlag, Malmö Valguarnera F (2013a) Accesso alla natura tra ideologia e diritto, 2nd edn. Giappichelli, Torino Valguarnera F (2013b) Commons: framtid eller rättsligt kätteri? In: Gipperth L, Zetterberg C (eds) Vänbok till Jan Darpö och Gabriel Michanek. Iustus, Uppsala, pp 521–544 Valguarnera F (2016) Allemansrätten: en internationell förebild? Nordisk miljörättslig tidskrift:147–159 Westerlund S (1995) Nutida allemansrättsliga frågor. Miljörättslig tidskrift:74–130 Wiktorsson G (1996) Den grundlagsskyddade myten – Om allemansrättens lansering i Sverige. City University Press, Stockholm

Assailed: The Paradoxical State of the Commons in the United States Monica E. Eppinger and Heidi G. Robertson

Abstract The commons occupies a peculiar place in the United States, foundational to its very political existence but rarely invoked as a basis for legal claims, ubiquitous in the framing of the contemporary socio-legal order but absent from the law, invisible but hiding in plain sight. On one hand, the idea of the commons has played a foundational role. Its centrality in early modern European political thought has shaped the US from its origins through a present in which ordered liberty is still pursued as an intentional common project. The idea of the commons also plays an indispensable but destructive role in the history of a US settler-colonialism in which the myth of a great, empty North American “wilderness” has been key to sidestepping ethical crises and obviating legal questions arising from violently expropriating land from indigenous populations. The history of addressing the wilderness in law, policy, and practice shapes the here-and-now, with a legacy of doctrines that condition approaches to smaller-scale commons and that have left the US government as the US's largest landowner. On the other hand, although in the US myriad property forms could be analyzed, spatially or institutionally, as a commons, it is important to note that in the US the commons exists as an analytic category but not as a juridical category. There is no standard legal definition of a commons and categorizing something as a commons has no conventional legal effect. For those using a space or resource as a commons and wishing to defend that use, the most promising course of action under US law would be (1) to use the law of organizations to form a group with legal capacity, such as a non-profit organization, or to use deed language to signify an in-group co-ownership arrangement, such as tenancy-incommon or joint tenancy; and (2) to establish a claim based in private property doctrines (such as acquisition by purchase or adverse possession, or servitudes). The

M. E. Eppinger Saint Louis University, St. Louis, MO, USA e-mail: [email protected] H. G. Robertson (✉) Cleveland State University, Cleveland, OH, USA e-mail: [email protected] © The Author(s), under exclusive license to Springer Nature Switzerland AG 2023 U. Mattei et al. (eds.), Property Meeting the Challenge of the Commons, Ius Comparatum - Global Studies in Comparative Law 59, https://doi.org/10.1007/978-3-031-25218-1_14

483

484

M. E. Eppinger and H. G. Robertson

commons figures in US academic debate, one line of scholarship treating it as the site of “collective action problems” and another, as the situs of “public trust,” a doctrine to be expansively employed in the public interest.

1 Introduction The idea of the commons has played a foundational role in the United States, to utopic and dystopic effect. On one hand, the North American continent was taken as refuge for dissenters, object for ambitions, and outlet for the poor and desperate; its putative commons was canvas for the European political and economic imagination and setting for novel common schemes. Conscious of the contingency of their history, U.S. citizens still refer to the United States as the American “experiment” and ordered liberty, to this day, is considered an intentional common project. On the other hand, the same United States history tells of a settler-colonialism in which “the commons” plays an indispensable, destructive role, as the myth of a North American wilderness has been crucial to salving the conscience and obviating some of the legal and ethical controversies inherent in violently expropriating land from native inhabitants. “The commons” encompasses the range of pragmatic challenges related to a continent of resources, unmarked by private property law, under conditions of normative pluralism. The history of dealing with that putative wilderness in law, policy, and practice shapes the present day, leaving doctrines that condition approaches to smaller-scale commons and leaving the United States government the largest landowner.1 This Report, in response to a survey prepared by Professors Ugo Mattei, Alessandra Quarta, and Filippo Valguarnera (the “Survey”), describes meeting the challenge of the commons in the contemporary U.S. legal context. Part I, formulated by Dr. Eppinger, gives a general orientation. Part II, by Dr. Robertson, analyzes some exemplary hypothetical problems. This snapshot of the commons in the U.S. shows—amidst thriving dominance of an ideology of private property and its enabling doctrines of trespass, necessity, and their ilk—pragmatic and creative alternatives at work.

1

For prior exploration of some of the tensions around the commons in legacy and practice in the U.S. formulated around this long-term comparative project considering the challenge of the commons, see Eppinger (2018b).

Assailed: The Paradoxical State of the Commons in the United States

485

2 Questionnaire: Part I 2.1

What Legal Categories in Your Legal System May More Closely Correspond to the Notion of the Commons as Deployed in the Introduction?

The notion of the commons presented in the Survey’s Introduction has particular qualities. In its authors’ view, any physical space may (or may not) be a commons; neither is the defining diacritic “whether the ultimate legal title on the premises is private or public.” Rather, in their view, characterization as a “commons” depends on “whether the space fosters a generative collective activity or is run on a model of exclusion—extracting profit and rent.” The Survey’s authors define a commons as “anything a community recognizes as capable of satisfying some real or fundamental need outside of market exchange,” including, in addition to physical public space, institutional arrangements. Commons institutions allow a community access to resources, promote “pervasive decision-making,” and tend to “counteract the profit motive, inequality, and shortsightedness.” They “function through a direct legal empowerment of their members in common pursuit of a generative meaning or task, and they respond to real human needs for participation, security, and sociability.” In sum, the notion of “the commons” reflected in the Survey’s Introduction is at once institutional, functional, and ethical, presenting the commons as a mode of social organization facilitating given functions in regard to resources and imbued with a certain ethos. In the United States, myriad property forms could correspond to this notion of the commons. Some examples include: worker cooperatives; community gardens; conservation trusts; some public lands, particularly National Parks but also state and municipal parks; the spaces or resources of some non-profit organizations; the navigation servitude; air space; some cohabitation spaces such as co-housing or graduated-care elder housing; and some Native American tribal reservations. This list’s emphasis on property forms is intentional. Unlike the notion expressed in the Survey’s Introduction, for the most part, “the commons” derives its significance in U.S. legal thought as an ontological category, not as a set of practices with an ethical dimension. Moreover, in the U.S., “the commons” per se exists as an analytic category but not as a juridical category. There is no standard legal definition of a commons. The Survey’s authors cite a 2011 Italian court case in which the Corte di Cassazione applied the concept of the commons in finding a fish valley in the Venetian lagoon “a commons, not simply a public property,” because of its connection with Italian Constitutional values, thereby denying claim to it by a private company. In U.S. law, by contrast, characterizing a space, project, or enterprise as a commons does not usually exert a conventional legal effect. As section 3 below makes clear, in the United States, generally speaking the law is on the side of the party exercising a legal right to exclude. For those using a space or resource as a commons and wishing to defend that use, the most promising course of action under U.S. law would be

486

M. E. Eppinger and H. G. Robertson

(1) to use the law of organizations to form themselves into a group with legal capacity, such as a non-profit organization, or to use deed language to signify an in-group co-ownership arrangement, such as a tenancy-in-common or a joint tenancy; and (2) to establish a claim based in private property doctrines (such as acquisition by purchase, adverse possession, or servitudes). Constitutional rights could be invoked and Constitutional protection afforded for rights enumerated in the U.S. Constitution and its Amendments, which would include some foreseeable uses (e.g., assembly) but not others (e.g., dwelling).

2.2

Is There Today or Was There in the Past a Concept of the Commons in Your Legal System? In the Affirmative, Is It Statutory, Jurisprudential, Doctrinal or Customary?

2.2.1 2.2.1.1

First Contact The Commons and Genocide

Peoples native to the Americas held and managed land and resources according to richly varied notions of sociospatial organization, processes of governance, and practices; examples of those serving functions of a commons are myriad. Among the northern Algonquin, kin groups organized use of woodland hunting territories.2 Societies practicing bison-hunting on the Great Plains organized use of the prairie for common endeavor, and different groups conceptualized and practiced an interpenetrating territoriality.3 Along the Arkansas River, one of the long tributaries of the Mississippi River, Caddoan-speakers, Mississippian chiefdoms, Illinois peoples, Quapaws, Osages, Shawnees, Miamis, and Cherokees used the river valley as home for economies based on indigenous conceptions of the commons, often in rivalry with each other.4 Across the continent, some indigenous land-tenure practices, particularly those associated with horticulture, were based on logics of exclusion; but North America was rich in sociospatial conceptions and practices organized for the benefit of common pursuits. Such practices were interrupted by colonization, and at this point the history of the commons intersects with a history of genocide. European engagement in North America took the form of settler-colonialism.5 Although premised on exogenous domination like other forms of imperial domination, setter-colonialism “seeks to 2

Morantz (1986) (on northern Algonquian hunting territories). Albers and Kay (2022). 4 DuVal (2006), pp. 7–9 (on the concept of an indigenous commons in the Arkansas Valley). 5 Denoon (1979) (coining the term “settler colonialism” to describe an imperial formation distinct from the “de-development” typical of colonialism). 3

Assailed: The Paradoxical State of the Commons in the United States

487

replace the original population of the colonized territory with a new society of settlers.”6 The temporality of violent encounter is extended in settler-colonialism: because “the colonizers came to stay,” “invasion is a structure, not an event.”7 In North America, settler populations’ expropriation of land and resources and the reduction of common holdings to private property had genocidal effect.8 Sometimes settlers killed indigenous people in order to expropriate land.9 Cultures were also eradicated with the imposition of foreign land-tenure regimes and, the material basis of their lifeways eliminated, indigenous people perished in large numbers.10 Seizure of the commons served as incentive, justification, or means for some of the colonists’ genocidal acts. Portrayal of the natives’ extinction—often cast as tragic, or even inevitable— abetted colonists’ land claims. Although many perished, some indigenous people survived. Some fled before the advance of colonial settlers. Other tribes reached agreement with the federal government to “reserve” lands for tribal collective ownership, holdings on which their governance and resource management practices were legally recognized as sovereign. And many indigenous people adapted, assimilating into the new land tenure regime and new dominant culture.11 The fact of survival defies the myth of native extinction. Nonetheless, the myth of native extinction12 plays a key role in the regime of settler-colonialism.13 The myth of extinction in some senses created the American commons as a discursive object. It served to legitimate takings by state, local, and federal governments and by individuals in successive waves of settlement. It established the idea of an unpopulated blank slate and perpetuated a sense of terra nullius as well as a socio-political vacuum, rightfully or at least unavoidably filled by the social processes and political schemes of settler-colonists. The myth of native

6

LeFevre (2015). Wolfe (1999), p. 2. 8 See, e.g., Wolfe (2006) (identifying settler colonial “logics of elimination”); LeFevre (2015) (“This new [settler] society needs land, and so settler colonialism depends primarily on access to territory”). 9 See, e.g., Apess (1992) (detailing decades of murderous and treacherous acts towards Massachusetts natives whose assistance had been key to Pilgrims’ and Puritans’ survival, culminating in “King Philip’s War” 1675–1678). 10 See, e.g., Dippie (1985) (arguing that white settlers, having killed Indians and pushed survivors farther west, created a conscience-soothing myth that Indians are a vanishing race, doomed to extinction anyway, which eventually shaped federal policy). 11 See, e.g., O’Brien (2010) (detailing the discursive erasure of native Americans, via nineteenthcentury extinction narratives, from the imagined social and political space of the northeast United States). See also Deloria (2004) (relating a history of Indians’ engaging forces of modernization in the late nineteenth and early twentieth centuries). 12 Settlers’ imagination of unclaimed space on a continent that had clearly been populated gave rise to the figure of the vanished Native, the Indians who “perhaps tragically, were removed from the area, or died out, or ceased to be ‘really’ Indian, or simply disappeared at some point between the appearance of the ‘last’ one and the current moment.” Rifkin (2014), p. 4. 13 Wolfe (1999), p. 2 (“Settler colonies were (are) premised on the elimination of native societies”). 7

488

M. E. Eppinger and H. G. Robertson

extinction also stimulated development and application of legal doctrines relevant to terra nullius. The work accomplished by the myth of extinction in the imagination of a commons is ongoing. In the late 1830s, 200 years after the colonization of Massachusetts began, William Apess, a Pequot minister and activist, pointed out the hypocrisy of settler nostalgia and lamentation over supposedly past tragedies during an ongoing land struggle in his state: “Let the children of the Pilgrims blush while the son of the forest drops a tear and groans over the fate of his murdered and departed fathers,” his critique demanded.14 Logics of the empty space still redound to the disadvantage of native descendants and legitimate chains of title in settlers’ descendants. This history has two formative bearings on our discussion of the commons. First, the formation of “settler common sense,”15 the “commonsensical background”16 through which European law and legal categories become the normalized structures of everyday life, was (and is) crucial to the project of settler-colonialism. In the settler imaginary, a putative commons loomed large; treatment of “the commons” figured in epistemologies of colonialism. The conceptual categories of “commons” and private property derive from European legal traditions; our employing them in this discussion of the North American space is itself a reflection of settler-colonial logics.17 Second, processes of myth-making and law-making are mutually constitutive and ongoing. Just as the myth that America was a wilderness props up settlercolonialism, doctrines that arose from the presumption of a wilderness and unclaimed land and material resources more generally framed (and continue to frame) treatment of open-access resources and commons in U.S. law. In U.S. property theory, the commons has come to figure in tragic aspect.18 The potential for creative or life-sustaining uses of the commons in contemporary life is predicated upon, and framed by, its freighted history.

14 Apess (1992), p. 286. Apess advocated for a native American group in Massachusetts, the Mashpee, whose legal claims to land and tribal identity are still under litigation. Mashpee Wampanoag Tribe v. Bernhardt, Civil Action No. 18-2242 (PLF) (D.D.C. Jun. 5, 2020) (nullifying Secretary of Interior David Bernhardt’s March 2020 declaration rescinding tribal designation for the Mashpee, which would in turn have debased Mashpee claims to its 321-acre reservation). 15 Rifkin (2014), pp. x, xvi (describing “the ways the legal and political structures that enable non-native access to Indigenous territories come to be lived as given, as simply the unmarked, generic conditions of possibility for occupancy, association, history, and personhood”). 16 Id., xviii. 17 Nicoll (2004), pp. 17, 19 (calling for attention to “ways in which white sovereignty circumscribes and mitigates the exercise of Indigenous sovereignty”). 18 See, e.g., Hardin (1968).

Assailed: The Paradoxical State of the Commons in the United States

2.2.1.2

489

Locke, the Commons, and the Colonial Other

The New World and its inhabitants sparked the imagination of the Old World. Legal thinkers and jurists came to the North American context with baggage—ideologies that favored private property holding,19 political theories of sovereignty,20 and legal precepts like first-in-time doctrines of appropriation21—that left them particularly challenged by the fact of native peoples. After the founding of the United States, U.S. courts had to deal with competing land claims arising out of competing chains of title, based on conflicting doctrinal treatment of native Americans as landholders.22 Before then, some European legal thinkers had already responded to the challenge of the New World “commons” with novel approaches. John Locke proved particularly influential in thinking on the commons. Locke was a creature of colonial context. During the same period that he was writing his treatises and formulating theories of enclosure supporting superior property claim, he worked as a secretary to the British Crown’s Council of Trade and Plantations (1673–1674) and a member of the Board of Trade (1696–1700), English advisory bodies to the Crown in supervision of colonial affairs.23 He proposed that investing one’s labor supported a superior claim to common resources24—as long as one’s labor matched his European conceptions of cultivation.25 These notions show up in later schemes by which “commons resources” were apportioned in the U.S., particularly in the grounds for awarding title to parceled public land.26

19 Eppinger (2015), pp. 832–847 (outlining three mutually contradictory, but equally paradigmatic, accounts from the founding of the U.S. on the indispensable role of private property in a democracy and its economy). 20 See Elmer (2008) (arguing that the logic of sovereignty of early modern Europe—based on a trope of personification—was a racialized logic with contradictions revealed in the New World). 21 Blackstone (1872), p. 330 (with mankind’s increase, conceptions of more permanent domination became necessary, lest the good order of the world be continually broken “while a variety of persons were striving who should get the first occupation of the same thing, or disputing which of them had actually gained it”). 22 See Johnson v. M’Intosh, 21 U.S. 543 (1823) (regarding title descended from transfer by deed from native Americans versus title descended from treaty between the native nation and the U.S. government, finding natives’ “right of occupancy,” held by virtue of first possession, subordinate to the U.S. government’s “right of dominion,” held as successor to European powers which had engaged in “discovery” of the continent). 23 Serving in these positions, Locke was in fact “one of just half a dozen men . . . who created and supervised both the colonies and their iniquitous systems of servitude.” Cohen (2008), p. 101; see also Tully (1993), p. 128; Farr (1986) (arguing that Locke’s property theory regarding unenclosed land was intended to justify the displacement of Native Americans). 24 “Though the earth, and all inferior creatures, be common to all men . . . Whatsoever then he removes out of the state that nature hath provided, and left it in, he hath mixed his labour with, and joined to it something that is his own, and thereby makes it his property.” Locke (2022), § 27. 25 Greer (2012), pp. 366–368 (reviewing the European bias in visions of the commons and definitions of labor in Locke’s Second Treatise). 26 See, e.g., Homestead Act of 1862, Pub L 37-64 (Stat 12:392) (May 20, 1862) (according land title to a settler who worked the land for 5 years and had never taken up arms against the United States). See also Sect. 2.2.2.2.3, below, for a fuller discussion of federal public lands.

490

M. E. Eppinger and H. G. Robertson

Such doctrines, whether out of ignorance or convenience, accorded no legal cognizance to Native American land management practices. Additionally, proponents fall conspicuously silent regarding a context in which labor-based doctrines for land claims might have most unambiguously applied, namely, regarding land worked under the American system of chattel slavery.

2.2.1.3

Colonial Pluralism

Locke’s adherents may imagine the colonial encounter as the conflict between a private property regime and a commons, but recent scholarship finds in the American context, as a practical matter, conflict was often a matter of European commons versus native commons. Different portions of the area that became the United States were colonized under British, Spanish, and French authorities.27 These different legal traditions engendered differing notions of the commons, and practices pertaining thereto, in various regions of the country. Legal treatment in different regions reflected these different legal traditions, as did legal notions from later settlers’ countries of origin (for immigrants not from the colonial powers), enslaved populations, and native inhabitants.

2.2.2

Tracing Concepts of the Commons

After the establishment of the United States, officials developed doctrines and policy to deal with resources, needs, and vast stretches of territory not reduced to private holding. A few examples of treatment of the commons from this complicated, rich, and messy past follow.

2.2.2.1

From Native Commons to Tribal Reservation

In 1620, Pilgrims (English Protestants who had sheltered in the Netherlands) landed on the coast of Massachusetts in an area inhabited by the native Wampanoag, horticulturalists who supplemented crop-raising with fishing, hunting, and gathering, and for economic and cultural purposes used some lands and resources as a commons. The way that a part of the Wampanoag nation known as the Mashpee tribe managed the complications of land tenure into the age of colonialism lends one view into how their version of the commons fared. After a generation of encroachment (but otherwise relatively peaceful coexistence), in 1665 the Wampanoag reserved 27

See, e.g., Greer (2012) (summarizing British, Spanish, and French commons doctrines and practices contemporary with their respective New World colonial experiments and their importation to different regions of the New World). See also, e.g., Sect. 3.4 below for an example of how different colonial powers’ legal doctrines manifest in subsequent legal treatment of commons assets in different regions of the U.S.

Assailed: The Paradoxical State of the Commons in the United States

491

twenty-five square miles of land in the form of a deed from tribal leaders to the tribe itself. Plymouth Colony confirmed the deed in 1685.28 In the interim, during “King Philip’s War” (1675–1678) between the Wampanoag and allied forces and the colonists and their allies, over 40% of the Wampanoag population was killed and large numbers of healthy men and boys were sold into slavery. Of the sixty-nine tribes of the Wampanoag nation at the arrival of English colonists, the Mashpee was one of three to survive into the following century. In 1725, Plymouth Colony instituted a proprietary system of land control in the area of the Mashpee, with tribal members becoming “proprietors,” or collective owners, of the land. After Plymouth Colony appointed three “guardians” over the tribe and its landholding, the Mashpee dispatched delegates to London to protest to the Crown, and in 1763 Plymouth Colony acknowledged Mashpee as a self-governing district. In 1822, the U.S. federal government designated the Mashpee as a tribe in occupation of a reservation. In 1842, the Massachusetts legislature approved division of Mashpee tribal lands among tribal members into individually owned parcels, inalienable to anyone other than Mashpee proprietors. Ignoring the Trade and Intercourse Act of 1790, which required federal approval for Indian land agreements, an 1870 act of the Massachusetts legislature authorized (without federal approval) conveyance of the remaining acres in tribal ownership, abolished the Mashpee district, and created the town of Mashpee in its stead. In 2007, Mashpee Tribe became a federally recognized tribe, authorizing it to acquire land on a collective footing; in 2012, Mashpee Tribe filed a Land in Trust Application for an “initial reservation” with the Department of Indian Affairs and in 2015, after the U.S. Department of the Interior approved the application, the Tribe began (re)acquiring tribal lands. The Mashpee are but one example. There are 574 federally recognized sovereign tribal nations in the United States,29 each with its own conceptions of the commons and each, in relation to settlers and the U.S. government, with a different history of land expropriation, tribal reservation, and group recognition. A few generalizations may be made about legal doctrines bearing on the commons that the U.S. applied, and applies, to descendants of the native inhabitants of the continent. Beginning in 1828, as a matter of policy, the U.S. government increasingly pressured eastern tribes to abandon land and move west in forced migration. The government subsequently embarked on a military campaign that ran until 1887 to relocate tribes to reservations, established through treaties that required natives to trade large tracts of land for the continued right of self-governance. Congress passed the General Allotment Act of 1887 (also known as the Dawes Act), which mandated the forced conversion of communally held tribal lands into parcels for individual Indian ownership. More than 90 million acres—nearly two-thirds of reservation land— were classified as “surplus” and given to settlers, most often without compensation to the tribes. (The federal government ended the allotment policy under the Indian

28 29

The Mashpee tribal land history recounted here is summarized from jessie little doe baird (2022). National Congress of American Indians (2020), p. 11.

492

M. E. Eppinger and H. G. Robertson

Reorganization Act of 1934, and since 1934 the Department of the Interior has taken about nine million acres, or about 10% of the total amount of land lost to tribes under the Allotment Act, back into trust status.) Today, tribal nations hold more than 56 million acres of land, approximately two percent of the land area of the United States. Title to most tribal lands is held “in trust” by the United States for the benefit of current and future generations of tribal citizens. Reservation lands today are made up of such “trust” lands (held for the benefit of a tribe or an individual), and of parcels owned by tribes and individuals.30

2.2.2.2 2.2.2.2.1

Colonial Spaces and Practices Town Commons

European colonists replicated some forms of common landholding from their home countries and created anew some common cultivation practices. In the early colonial history of New England, for example, common cultivation was the typical method for turning meadows and forests into fields and pastures, and rights to lands thus improved were held in common by settlers of the jurisdiction.31 The central commons of New Haven, Connecticut, gives an example of one such holding surviving in New England towns. From the time they established New Haven colony in 1638, citizens managed its “common and undivided lands” through meetings of all settler-interest holders. By 1725, population growth among their descendants made regular meetings increasingly difficult to arrange and colonial New Haveners designated a small Committee of Proprietors “to guard the public interest on common lands.”32 Anne Calebresi (descendant of a colony founder and current member of the Committee), reflecting on its earlier status, gives a characterization reminiscent of Rodotà’s commons, neither private nor public: “Up until the time they chose five people, [the Green] belonged to the entire community. It did not belong to the government. It did not belong to the Crown.”33 The New Haven Green still occupies a central place, physically and metaphorically, in the city. It is bounded on two sides by Yale University, on one side by civic buildings and courthouses, and on one side by commercial buildings. It boasts a fountain, three historic churches, and plenty of open space, serving as a park to city residents. It hosts an annual

30

The relationship among tribes, tribal lands, and the American family of governments is summarized in id., 9, 14–18, 20–37. 31 See, e.g., Trumbull (1850), p. 100 (quoting verbatim from the 1643 original, owing to the “condition of these several plantations in these beginnings wherein we are,” colonists found “that necessity constrains to improve much of the grounds belonging to the several towns in a common way” [sic]). 32 See, e.g., Sexton (2001), pp. 7–9 (summarizing the history of the committee that takes decisions regarding undivided lands of New Haven, CT). 33 Anne Calabresi, member of the Committee of the Proprietors of Common and Undivided Lands at New Haven, quoted in Bass (2017).

Assailed: The Paradoxical State of the Commons in the United States

493

Festival of Arts and Ideas; concerts; summer outdoor films; century-old trees and bus stops; illicit drug markets and muggings; Frisbee-throwers and university commencement pageants. It is a platform for the diverse activities of an active urban citizenry. It is not managed in an open or democratic way. The Committee selfselects its membership and makes decisions in closed deliberations. A typical detractor critiques it as “patrician,” the supposed need for which belied by the preservation of nearby green spaces that are “owned by the little people and managed by their democratic government.”34 2.2.2.2.2

Ranging and Travelling

In colonial North America, movement beyond or between urban centers entailed use of unenclosed spaces. In some domains, custom yielded commons usage, even where it did not transform legal title, for example regarding the right to range over unenclosed rural land for the purposes of hunting. This right is confirmed in case law citing custom as its source of authority, for example in an 1818 South Carolina holding that “the right to hunt on unenclosed and uncultivated lands has never been disputed, and . . . has been universally exercised from the first settlement of the country up to the present.”35 The Supreme Court held in 1922 that “with regard to the large expanses of unenclosed and uncultivated land,” “it is customary to wander, shoot and fish at will until the owner sees fit to prohibit it. A license may be implied from the habits of the country.”36 A large number of state legislatures have codified this right in so-called “posting laws,” which permit anyone to hunt on rural land unless “No Hunting” or “No Trespassing” signs have been prominently posted.37 In other domains, recognition of legal title in the public and commons usage co-emerged. At English common law, a navigation servitude38 afforded any member of the public the right to travel by vessel on, or to fish in, a body of water that was subject to the ebb and flow of the tides. In the U.S. context, a series of Supreme Court decisions in the 1800s construed the servitude as extending beyond tidal water to all waters that are “navigable in fact.”39 Although the genesis of this extension of the

“Anderson Scooper,” comment to Bass, id. (21 Jan 2017, 12:34 a.m.). McConico v. Singleton, 9 S.C.L. 244, 351–52 (S.C. Const. App. 1818). 36 McKee v. Gratz, 260 U.S. 127, 136 (1922). 37 See, e.g., Fla. Stat. § 588.10, §810.09 (2020); N.D. Cent. Code § 20.1-01-18 (2002). 38 For further discussion of the navigation servitude, “public trust,” and application of its doctrines in environmental protection cases, see Sect. 2.3 below. 39 The Genesee Chief, 53 U.S. 443 (1851) (holding that the admiralty jurisdiction proper to federal courts under U.S. Const. art. III, § 2 extended beyond tidal water to all waters navigable in fact); Gibbons v. Ogden, 22 U.S. 1 (1824) (invalidating a monopoly charter granted by the N.Y. legislature to operate steamboats between N.Y. and N.J. and establishing that Congress has plenary authority, under the U.S. Const. art. I, § 8, cl. 3, to legislate on the subject of commercial navigation); Com. of Pennsylvania v. Wheeling & Belmont Bridge Co., 54 U.S. 518 (1851) (holding that federal courts, on the authority of the Constitutional Commerce Clause alone without additional implementing legislation, could issue an injunction directing a low-lying bridge be raised in order to prevent interference with navigation on the Ohio River). 34 35

494

M. E. Eppinger and H. G. Robertson

English navigation servitude is attributed to the Supreme Court decisions, some colonial-era documents evidence that a more general notion of the navigation servitude in North America predated those decisions. For example, The General Court of Connecticut, stating a rule that towns within its jurisdiction had the authority to parcel out or dispose of their own (commonly held) lands, made clear it did not include the Connecticut River: towns had authority to dispose of their property, “the libertyes of the great River excepted.”40 In the U.S., the navigation servitude is well established and commonly interpreted to extend physically, via the doctrine of public trust, to the bed of navigable waters, and to extend in usage to include the right to fish in navigable waters.41 As with the navigation servitude, early in the period of European settlement, many significant transport routes assumed commons status. Notwithstanding the development of some toll roads and canals, European settlers treated most major roads between towns, for example, as a privileged land use befitting treatment as a commons.42 The logic guiding treatment of roads and navigable waterways eventually extended to the skies. In U.S. v. Causby, the Supreme Court held that federal statutes, together with administrative regulations developed pursuant to them, had the effect of making the upper air, above the prescribed minimum altitudes of flight, a public highway. The decision has been held to supersede state law on the matter, so that liability for entry into the airspace became a matter of federal law.43 2.2.2.2.3

Public Lands

Charters of seven of the thirteen original colonies44 included lands extending from the Atlantic to the Mississippi River.45 After the war of independence, these states agreed to cede lands west of the Allegheny mountains to the newly formed federal government, largely with the notion that the government would auction the lands to

40

General Court of Connecticut (Oct. 1639), quoted in Bates (1912), p. ix. See, e.g., Collins v. Gerhardt, 211 N.W. 115 (Mich. 1926) (holding that plaintiff, who owned land on both sides of a stream accessible by a vessel no larger than a canoe, had no grounds for a trespass action against defendant wading and fishing in the stream, because “It is immaterial who owns the soil in our navigable rivers. The trust remains.”) 42 Quoting from the 1638 original, “Whereas there is a desire of or neibours of Harteford that there may be a publique highway for Carte and horse uppon the upland betweene the said Harteford and Windsor as may be convenient, it is therefore thought meete that Henry Wolcott the younger and Mr. Stephen Terr[e] and Willm Westwood and Nathaniell Warde shall consider of a fitting and convenient high way to bee marked and sett oute, and bridges made over the swampes, and then itt being confirmed by the Courte, the inhabitants of Harteford may with making a comely and decent Stile for foote and fence upp ye upper end of the meadow” Trumbull (1850), pp. 17–18. 43 U.S. v. Causby, 328 U.S. 256 (1946). See also Restatement (Second) of Torts, §159 comment (h) on Subsection (1) at 283 (1965). 44 The seven states were Massachusetts, Connecticut, New York, Virginia, North and South Carolina, and Georgia. 45 The account of federal public land in this and the following paragraph is primarily drawn from Merrill and Smith (2012), pp. 124–129, and is also heavily indebted to Gates and Swenson (1968). 41

Assailed: The Paradoxical State of the Commons in the United States

495

repay Revolutionary War debts. These lands formed the foundation of the “federal public domain,” lands from which new states were eventually carved; parcels sold; and tribal reservations, national parks, and other collective holdings established. To facilitate the land sales that had justified transfer of the territories to federal authorities, Congress adopted the Land Ordinance of 1785, establishing a system for surveying the lands into townships of thirty-six square miles.46 One square mile (one “section”) of each township was to be reserved for territorial governments to raise revenue (through sale or rent) to support public education.47 Again, common lands served the commonwealth: even if parceled and reduced to private property, the lands would materially support a public good. The federal public domain expanded enormously over the course of the nineteenth century, with the Louisiana Purchase of 1803 by which the United States acquired most of the land from the Mississippi River to Montana; the Treaty with Spain in 1818, which added Florida and western Louisiana; the annexation of Texas in 1845; the Oregon Compromise of 1846 with Britain, securing what is now Washington, Oregon, and Idaho; Mexico’s concession, at the 1848 close of the Mexican-American War, of California, Nevada, Utah, Arizona, New Mexico, and Western Colorado; and “Seward’s Folly,” the purchase of Alaska from Russia in 1867. In total—once native title was extinguished48—these acquisitions added 1.4 billion acres of land and resources to the United States territory, as part of the federal public domain. Although public supporters actively promoted settlement of these lands,49 the original land auction scheme lagged, defaults were common, and Congress dropped the price. The Preemption Act of 1841, until its repeal in 1891, awarded 160 acres (provided native rights were already extinguished) to any settler who inhabited and improved the land, constructed some kind of dwelling, and agreed to pay the minimal price of $1.25 per acre.50 Twenty years later, Congress effectively dropped the price further with the Homestead Act of 1862, which gave title to 160 acres to any settler on unsold survey land who inhabited and cultivated the land for 5 years, without any further payment except minimal filing fees; subsequent homestead acts 46

Fitzpatrick (1933). Id., 378. Another initiative following this impetus was the Morrill Act of 1862, 7. U.S.C. § 301, which set aside large tracts of federal public lands for each state to sell or otherwise to use to establish a university; succeeded by the Morrill Act of 1890, 7. U.S.C. § 321, extending provisions for establishing agricultural colleges to the former Confederate states (which, having been engaged in insurrection when the first Act passed, had not benefitted from it). 48 By decision of the Supreme Court, native title could be extinguished only by treaty with the federal government or by conquest (presumably also by the federal government, although in actuality this was accomplished through a variety of hands). Johnson v. M’Intosh, 21 U.S. 543 (1823). 49 One recurrent exhortation captures some of the spirit of the settlement movement: “Go west, young man, go west.” Grinnell (1891), p. 87 (attributing this as advice he received from New York Tribune editor Horace Greeley, who popularized similar exhortations in his newspaper between its founding in 1841 and his death in 1872). 50 Preemption Act of 1841, 27 Cong., ch. 16 (5 Stat. 453). 47

496

M. E. Eppinger and H. G. Robertson

increased a possible homestead claim to 640 acres.51 Homesteads served as the point of entry into the U.S. economy for waves of nineteenth-century European immigrants. By the end of the nineteenth century, public opinion about parceling the federal public domain began to shift. The age of Horace Greeley waned and the age of Ralph Waldo Emerson, Henry David Thoreau, John Muir, and Aldo Leopold ascended. Transcendentalists broke with the utilitarian view of uncultivated land and landscapes, with Emerson, for example, characterizing the ways humans use “nature” according to the four basic needs of “commodity” (material sustenance), “beauty,” “language” (communication with each other), and “discipline” (as the basis for empirical understanding of the world).52 Conservationists advocated for reserves of unsettled land on the grounds, as John Muir put it, “that going to the mountains is going home; that wilderness is a necessity; and that mountain parks and reservations are useful not only as fountains of timber and irrigating rivers, but as fountains of life.”53 Yosemite Valley, the first instance in the United States of federal lands being set aside as park land for public use, was secured in 1864 as a permanent trust; Yellowstone, the first “national park,” was reserved from further homesteading in 1872; and other future national parks followed in protection.54 Congress authorized the President to reserve areas of the public domain as forest reserves in 1891,55 created the National Park System in 1916,56 and finally closed the remaining public domain from further private entry (except for prospectors pursuing mineral claims) with the Taylor Grazing Act of 1934.57 As a “past concept of the commons,” the federal public domain stands as a paradox. Its formation was (for the most part) intended as a temporary measure, a means to the end of paying off war debts. It faltered as a source of quick revenue, but

51

Homestead Act of 1862, Pub. L. No. 37-64, 12 Stat. 392 (May 20, 1862). Emerson (2003); see also Thoreau (1948) (Transcendentalist treatise advocating a retreat from settlements and a “return” to nature). 53 Muir (1981); see also, e.g., Leopold (1984). 54 An Act authorizing a Grant to the State of California of the “Yo-Semite Valley” and of the Land Embracing the “Mariposa Big Tree Grove,” 13 Stat. 325 (June 30, 1864) (securing Yosemite as a trust, under federal management); An Act to set apart a certain Tract of Land lying near the Headwaters of the Yellowstone River as a public Park, 17 Stat. 32-33 (March 1, 1872) (reserving Yellowstone as the first “national park”). See also An Act authorizing the governor of the territory of Arkansas to lease the salt springs, in said territory, and for other purposes, 4 Stat. 504-5 (Apr. 20, 1832) (setting aside the medicinal springs of Hot Springs, Ark. as a public reservation, a precedent for later acts to secure portions of the federal public domain for public purpose). 55 Forest Reserve Act of 1891, Pub. L. No. 51-561, 26 Stat. 1095 (March 3, 1891) (authorizing the President to set aside forest reserves from land in the federal public domain). 56 National Park Service Organic Act, Pub. L. No. 64-235, 39 Stat. 535 (Aug. 25, 1916) (establishing the National Park Service to manage federal public lands reserved as national parks). 57 Taylor Grazing Act of 1934, Pub. L. No. 73-482, 48 Stat. 1269 (June 28, 1934) (regulating grazing of privately-owned animals on public lands and, in effect, reserving all federal public lands not already designated as national park or monument, national forest, tribal reservation, or prior railroad grant lands from further parcelization or sale as private property). 52

Assailed: The Paradoxical State of the Commons in the United States

497

survived both in fact and in form through waves of systematic parcelization and intensive settlement. Lands of the federal public domain, especially in the national parks and monuments, survive as a beloved testament to trusteeship, the most ready argument for the commons for many U.S. citizens, and an inspiration for their relationship to future generations. The national parks are iconic; they may be a snapshot taken after the depopulation of lands by genocide and sequestration, but they are one of the pictures America loves best of itself.

2.3

Is the Commons Today a Topic of Academic Debate in Your Legal System: And in the Affirmative in What Context?

The commons figures in U.S. scholarly debate in several lines of work, two of which are reviewed here. One line of scholarship treats the commons as the site of “collective action problems.” This scholarship begins by setting out taxonomic categories defined by access. “Communal ownership” means “a right that can be exercised by all members of the community,” or, stated conversely, a right that “the community denies to the state or to individual citizens the right to interfere with any person’s exercise of community-owned rights.”58 Other scholars have refined this terminology into “open access” property, a “‘scheme of universally distributed, all-encompassing’ privilege,” and “commons property,” which “designates resources that are owned or controlled by a finite number of people who manage the resource together and exclude outsiders, what Carol Rose calls ‘commons on the inside, [private] property on the outside.’”59 Elinor Ostrom refers to the former as a “common-pool resource.”60 Any setting in which a resource is “non-excludable” (and therefore, a public good), so the theory goes, is susceptible to collective action problems. Economists like Mancur Olson argue that rational, self-interested individuals will not necessarily form a group that acts rationally in the group’s interests. “[R]ational, self-interested individuals will not act to achieve their common or group interests” absent “coercion or some other special device to make individuals act in their common interest.”61 The commons is, in most of this scholarship, treated as prone to tragedy.62

58

Demsetz (1967), p. 354. Dagan and Heller (2001), p. 557. 60 Ostrom (2008), pp. 8–21. 61 Olson (1998), p. 2. 62 The reference is to Hardin (1968). For broader consideration of private property, state-owned property, and public rights, see Rose (1986). For a more extended discussion of lines of argumentation running from the work of Mancur Olson, through Hardin’s article, and continuing in the work of Elinor Ostrom, see Eppinger (2018a). 59

498

M. E. Eppinger and H. G. Robertson

A second line of scholarship treats the commons as the situs of “public trust,” a doctrine to be expansively employed in the public interest. In a seminal article, Professor Joseph Sax argued “public trust doctrine” could be employed as a tool for environmental protection, introducing new forms of public participation and judicial oversight to counterbalance state and local legislatures captured by developers.63 Professor Sax proposed using public trust doctrine in a broad array of environmental actions, but Professor Robin Kundis Craig’s research shows more narrow application in practice: even when invoked to preserve natural resources more generally, nearly all decisions enforcing public trust doctrine involve resources that have some connection with navigable water.64 Even narrowly construed, however, public trust scholarship has enjoyed great influence. One court applied public trust doctrine in its expanded sense to invalidate proposals to fill in a portion of Lake Michigan to enlarge a steel plant.65 Another invalidated a proposal to fill in a portion of Lake Michigan to support expansion of the Loyola University campus.66 Some of its impact can be seen not in actions blocked but in plans abandoned at prior stages. For example, recently, a federal court declined to dismiss a public trust lawsuit seeking to block construction of a museum on the Lake Michigan lakefront; the legal impasse caused the donor, Star Wars creator George Lucas, to cancel plans for the project.67 This scholarship has turned the focus of public trust doctrine from the narrow concern of public access to commercial navigation to a doctrine about the preservation of natural resources.68

2.4

Is There Any Kind of Public Property in Your Legal System That Is Absolutely Not Alienable?

Some real property is not alienable. Navigable waters are not alienable,69 nor are national parks and monuments.70 Although other categories of lands in the federal public domain71 are inalienable, specific rights such as grazing or mining rights may be leased. Some categories of personalty may also belong to our conception of the commons and are also not alienable. For example, an artifact may be inalienable if defined as

63

Sax (1970). See also Craig (2007, 2010). Craig (2010). 65 People ex rel. Scott v. Chicago Park Dist., 360 N.E.2d 773 (Ill. 1976). 66 Lake Michigan Fedn. v. U.S. Army Corps of Engineers, 742 F. Supp. 441 (N.D. Ill. 1990). 67 O’Connell and Ruthbart (2016). 68 See generally Merrill and Smith (2012), pp. 296–323 (summarizing the transformation of public trust doctrine and analyzing its efficacy). 69 Described further in Sect. 2.2.2.2.2 supra. 70 Discussed in Sect. 2.2.2.2.3 supra. 71 Discussed in Sect. 2.2.2.2.3 supra. 64

Assailed: The Paradoxical State of the Commons in the United States

499

Native American “cultural patrimony,” i.e., an object having ongoing historical, traditional, or cultural importance to a Native American group or culture (which does not encompass the personalty of an individual Native American). An act of Congress, the Native American Graves and Repatriation Act, aims to protect and repatriate Native American human remains, funerary objects, sacred objects, and objects of cultural patrimony.72 The legislation aims to protect archeological finds and artistic works of cultural or religious significance that have become separated from the tribe with which they were originally associated, and analysis under the legislation requires some mental time travel. If an object shall have been considered inalienable by such Native American group, at the time the object was separated from the group then it is inalienable.

2.5

Are There Remedies in Your Legal System for Someone to Challenge in Court a Government That Decided Privatization or Nationalization of the Commons?

Eminent domain, the government’s power to seize property, is limited by the Fifth Amendment (for federal officials) and the Fourteenth Amendment (extending its provisions to state and local officials) to the U.S. Constitution. The relevant provision of the Fifth Amendment, known as the “Takings” clause, sets the conditions under which the government might exercise its power of eminent domain, providing “nor shall private property be taken for public use, without just compensation.”73 In Berman v. Parker74 and Hawaii Housing Authority v. Midkiff,75 the Supreme Court held that the “public use” requirement could be satisfied by a “public purpose,” such as reducing blight. Those holdings cleared the way for state and local officials to condemn and seize derelict properties in order to redevelop them, for example by a city housing agency. The question remained: does the Takings clause protect a landowner from a government exercising eminent domain in order to transfer property to another private landowner? In 2005, the Supreme Court held that a “public purpose” could be served and eminent domain constitutionally exercised even if the new possessory interest holder were a private entity. The case involved homeowners in New London, Connecticut, who refused the offer of a buyout from municipal authorities. The city had a plan for urban renewal, including redevelopment of an area along a river by a private developer, but homeowners in the area slated for redevelopment, including lead plaintiff Susette Kelo, did not wish to move and declined the city’s offer of compensation. The city then moved to condemn their properties, a purpose which the Connecticut Native American Graves and Repatriation Act, 25 U.S.C. §§ 3301–3013. U.S. Const. amend. V, applied to state and local governments under U.S. Const. amend. XIV. 74 348 U.S. 26 (1954). 75 467 U.S. 229 (1984). 72 73

500

M. E. Eppinger and H. G. Robertson

Supreme Court held constitutional under the state constitution, even if the properties were to be handed over to a private corporation. Hearing the case on appeal, in Kelo v. City of New London, Connecticut, the Court held that the scheme did satisfy a “public purpose” and therefore seizing the property and conveying it to the developer would be a constitutional exercise of the city’s eminent domain power.76 This doctrine has not been tested in regard to a commons, but the Kelo holding indicates that a commons would face the same fate—it could be nationalized, or privatized—as long as the government was acting in pursuit of a “public purpose.”

2.6

To What Extent Is Private Property Considered a Fundamental Right in Your Legal System, and What Other Constitutional Rights Could Defeat It in a Balancing Test?

Several constitutional rights could defeat private property in a balancing test. As outlined above (Sect. 2.5), the Fifth Amendment to the U.S. Constitution allows the government to take private property for public use as long as the property owner is afforded “just compensation.”77 The Court has found that the Equal Protection clause of the Fourteenth Amendment inhibits judicial enforcement by state courts of restrictive covenants based on race or color. The leading case, Shelley v. Kraemer, involved a neighborhood covenant that bound owners to sell property only to whites. When one homeowner sold property to an African American family, the Shelleys, other neighbors sued to restrain the Shelleys from taking possession and to divest title, revesting it in the immediate grantor or some third party. The trial court found for the Shelleys on a technicality; the Missouri Supreme Court reversed and ordered enforcement of the covenant, and the Shelleys appealed to the U.S. Supreme Court on the grounds that the covenant abridged their rights under the Fourteenth Amendment, which reads in relevant part: All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.78

If limitations such as those in the covenants were imposed by state or local ordinance, they would clearly violate this provision, but the instant case only involved agreements between private individuals. The Supreme Court held while that the

76

545 U.S. 469 (2005). U.S. Const. amend. V. 78 U.S. Const. amend. XIV §1. 77

Assailed: The Paradoxical State of the Commons in the United States

501

Fourteenth Amendment does not directly bar private (non-state) discrimination, going to court to enforce a private agreement is “state action,” so if an agreement is discriminatory, a court’s enforcement of it is discriminatory state action. A discriminatory private agreement to exclude on the basis of race will not be enforced judicially. On these grounds, the U.S. Supreme Court reversed the Missouri Supreme Court holding.79 In effect, the tools that a private property owner could use to perpetuate racial discrimination are extremely limited. Another limitation on private property comes from common-law public accommodation doctrine. Originally arising in regard to innkeepers and common carriers, it held that when a property owner opens her premises to the general public in pursuit of her own property interests, the property owner has no right to exclude people unreasonably and it has a duty not to act in an arbitrary or discriminatory manner toward persons who come on her premises.80 In the United States, public accommodation doctrine developed in tandem with anti-discrimination laws in the twentieth century. Title II of the Civil Rights Act of 1964 contains a rather broad definition of “public accommodation,” including: (1) inns, hotels, and motels, unless they hold fewer than five units and the owner lives on the premises; (2) any restaurant, cafeteria, or lunch counter; (3) any motion picture house, theater, concert hall, sports arena, stadium, or other place of exhibition or entertainment.81 Private clubs or other establishments not open to the public are excluded.82

2.7

Private Property Is an Institution Aimed at Allowing Exclusion from Land. Is There Any Limit to Such a Power of the Owner to Exclude Justified by a Right of Access of the Private Non-owner?

Two categories offer themselves as limitations on the right to exclude. One category could be termed “exceptions” to the right to exclude. They include the common-law doctrine of necessity83 and customarily-established usage, such as hunting.84 They also include legislated exceptions to the right to exclude. For example, the 1968 Fair Housing Act contains provisions aimed to end discrimination on basis of race, color, religion, sex, familial status, or national origin in housing, focusing on practices in

79

334 U.S. 1 (1948). Common law rule articulated in Uston v. Resorts Intern. Hotel, Inc., 445 A.2d 370 (N.J. 1982). 81 Title II of the Civil Rights Act of 1964, 42 U.S.C. §2000a(b). 82 42 U.S.C. §2000a(e). 83 See, e.g., Ploof v. Putnam, 71 A. 188 (Vt. 1908). 84 McConico v. Singleton, 9 S.C.L. 244 (S.C. Const. App. 1818); see also discussion in Sect. 2.2.2.2.2 supra. 80

502

M. E. Eppinger and H. G. Robertson

the real estate industry in order to eliminate discrimination in sales or leases.85 It left little space for “private Jim Crow” in housing.86 A second category would be in property interests that, in their design, resist the right to exclude. Chief among these in U.S. law are non-possessory interests in land known as servitudes. A servitude is an encumbrance consisting in a right to the limited use of a piece of land without possession of it, or, in other words, consisting of a charge or burden on an estate for another’s benefit. Servitudes include both easements and covenants. An easement is an interest in land owned by another person, consisting in the right to use or control the land for a specific limited purpose. An affirmative easement gives its holder the right to do something on another’s land, such as to use the land for a recreational purpose or to cross another’s land for access to a public road; a negative easement entitles its holder to compel the servient landowner to refrain from doing something that otherwise would be permissible. The grounds for negative easements traditionally are limited to restraining the servient landowner from building and blocking light or air from dominant tenement, from excavating in a way that undermines subjacent support from a neighboring property, or from diverting water from irrigation channels or other artificial streams. An easement appurtenant, involving a burdened and a benefitted parcel, transfers automatically with the dominant tenement, regardless of whether it is mentioned in the transfer. It also transfers with servient land, unless the new owner is a good faith purchaser for value without notice of the easement. An affirmative easement can be created in several ways: by prescription, i.e., by satisfying the elements of adverse possession (except for the requirement that possession be exclusive); by implication from prior or existing use; necessity, implying a right of way if a grantor conveys a portion of her land with no way to access it except by traversing some part of the grantor’s remaining land; or by grant. A negative easement can only be created by a writing expressly granting the easement. Other relevant servitudes limiting the right to exclude are promises related to land that bind successors in interest, i.e., covenants that “run with the land,” enforced at law or in equity. A real covenant is enforceable at law and, like an easement, may be affirmative or negative. An equitable servitude is a promise enforceable in equity against successors in interest; the remedy is typically injunctive relief. For the burden or the benefit of a real covenant or an equitable servitude to run with the land (meaning, to bind successors in interest), the original promise must meet certain usually strictly construed conditions.

Fair Housing Act of 1968, 42 U.S.C. § 3603 et seq. Two exceptions for discrimination are left in the Fair Housing Act: (1) in the sale or rental of a single-family house by the owner (although, even this provision makes no exception to the ban on discriminatory advertising); and (2) the so-called “Mrs. Murphy” exception for a building with no more than four units, in one of which the owner resides. Fair Housing Act of 1968, 42 U.S.C. §§3603(b)(1) & 3603(b)(2). 85 86

Assailed: The Paradoxical State of the Commons in the United States

503

3 Questionnaire: Part II This section responds directly to the questions posed in the Survey questionnaire created by the Access to Commons Working Group of the common core of European private law. The Survey questions are presented below. To preserve consistency across the analyses by various countries, rather than editing the questions, this section states factual assumptions necessary for the application of U.S. law. In addition, the analyses in this section each begin with a statement of what, in U.S. legal thinking, would be considered the “essence” of the question—that is, its fundamental legal question.

3.1

Housing

John, Orri, Sekela and Satoshi, desperate to find a home at an affordable cost, together with their families (including several children) inhabit homes in a development project, suspended due to delayed authorizations. The four friends and their families work on both the buildings and the land to enhance their living conditions (for instance, by painting the walls and adding a little garden). After a couple of months, the legal manager of the land discovers the four families and attempts to remove them. The families refuse to leave and the manager brings a claim against them.

3.1.1

Analysis of the Case

The families are occupying land they do not own. The non-owner families inhabiting the development have invested in improving the property for their own purposes, although the improvements may or may not be improvements from the perspective of the property owner.

3.1.1.1

Assumptions

The question does not state who owns the land, so this response assumes the developer is also the property owner. This response also assumes that the “legal manager,” which is not a term typical in U.S. law, represents the legal owner of the land, presumably the developer. The question does not indicate that the families have secured any legal right to possess the land (e.g., an expired lease), so this response assumes they have not.

504

3.1.1.2 3.1.1.2.1

M. E. Eppinger and H. G. Robertson

Claims Claim: Ejectment

Ejectment is a cause of action used when the property owner does not have present possession of the property, but holds the right to possess it and to exclude non-owners from the premises—standard rights associated with property ownership in the United States.87 An action for ejectment seeks return of rightful possession of the premises, as opposed to any monetary damages, and would be brought by the owner of the property, the person holding the legal right to present possession, presumably the owner/developer. It would be brought against those in unlawful possession. Here, the non-owner families have actual possession of the premises— they are occupying it—but they do not have the legal right to present possession. Therefore, the holder of the right to possession, the developer, could likely succeed in a cause in ejectment against the families to recover actual possession of the property. 3.1.1.2.2

Claim: Trespass

Unpermitted entry onto property one does not own, and for which one has no permission to enter, constitutes trespass.88 Trespass is a matter of occurrence, not a matter of degree.89 The merest unpermitted entry constitutes a trespass and would entitle the property owner to a remedy, although the remedy may well be nominal and determined by the degree of damage to the property owner’s interest.90 Without the owner/developer’s permission to be on the premises, the families’ presence on the property owner’s land would certainly constitute a trespass for which a court would award some measure of damages. U.S. also provides exceptions through which nonowners of land can acquire a right of access, for example, for the furtherance of certain human rights, such as to provide medical care or legal advice, nonowners may have a right of access to land they do not own. Here, the families are seeking access to live on land they do not own, not to enter it briefly to provide services to those who live there. Also, the rights of access for medical care and legal advice exception to the right to exclude has been limited in other cases. The families’ circumstances and minimal damage to the property might mitigate the amount

See 28A C.J.S. Ejectment § 8 (2020). See 87 C.J.S. Trespass § 9 (explaining that trespass generally is an interference with the other’s right to exclusive possession); see also, e.g., Jacque v. Steenberg Homes, Inc., 563 N.W. 2d 154 (Wis. 1997). 89 Id. 90 See 87 C.J.S. Trespass § 3 (June 2020 Update) (explaining that a trespass may be committed unwittingly or willfully and wantonly); see also, e.g., Baltimore Gas and Elec. Co. v. Flippo, 705 A.2d 1144, 1149 (Md. 1998) (explaining that an action for trespass may be maintained regardless of intent of trespasser). 87 88

Assailed: The Paradoxical State of the Commons in the United States

505

damages awarded, longevity of an intentional trespass could increase it or the extended trespass could ripen into a claim of adverse possession, below.91 3.1.1.2.3

Claim: Quiet Title

Property owners can sue potential claimants to quiet their title to the property, essentially confirming landowner ownership and quelling any potential competing claims of ownership.92 In a quiet title action the property owner is asking a court to declare and confirm that the property owner holds all rights to the property, including those relevant here—the rights of possession and occupancy.93 Here, the families are not owners of the land and have established no apparent rights to it, including those of possession and occupancy, so a quiet title action likely would confirm the absolute ownership of the developer.94 3.1.1.2.4

Zoning

It is possible, while perhaps not immediately effective, that the group may seek redress in zoning ordinances that make provisions for affordable housing. There have been several progressive property rights cases in the United States surrounding zoning restrictions and their application to affordable housing.95 For example, some developers are required to set aside a percentage of units in new developments as “affordable housing,” selling the new units at a “below market” price to potential tenants who may otherwise be unable to afford housing in the new development.96 Zoning restrictions such as these are regularly challenged, with limited success. However, there is evidence that progressive property rights are gaining traction in this respect, with some courts holding that “local governments have a responsibility to use the powers vested in them to facilitate the improvement and development of housing to make adequate provision for the housing needs of all economic segments

See 87 C.J.S. Trespass § 119 (June 2020 Update) (explaining mitigation of damages for trespass and lack of mitigation for continuing trespass); cf. Kratze v. Indep. Or. of Oddfellows, Garden City Lodge No. 11, 500 N.W.2d 115, 122, 123 (Mich. 1993) (holding when a trespass results in injury to the land which is permanent or irreparable general measure of damages is diminution in value of the property, if injury is reparable or temporary proper measure of damages is the cost of restoration of property to its original condition). 92 See 74 C.J.S. Quieting Title § 2 (June 2020 Update). 93 Id. 94 Id.; See also City of Santa Maria v. Adam, 211 Cal. App. 4th 266, 298 (2012), as modified on denial of reh’g (Dec. 21, 2012) (explaining that the purpose of a quiet title action is to settle and determine the parties’ conflicting claims to the property and to obtain a declaration of the interest of each party). 95 Mualam and Sotto (2020), pp. 9–10. 96 Id. 91

506

M. E. Eppinger and H. G. Robertson

of the community” and that “[c]reating affordable housing for low and moderate income families is a legitimate state interest.”97

3.1.1.3 3.1.1.3.1

Defenses Defense: Adverse Possession

In the United States, a person may acquire ownership of land she did not own through the doctrine of adverse possession.98 This requires a lengthy period of consistent and exclusive land occupation contrary to the property interests of the landowner.99 To acquire ownership of land via adverse possession the claimant must satisfy the elements of actual, open, continuous, and exclusive possession, all adverse or hostile to the landowner’s ownership for the entire statutory period according to state law.100 The length of time required depends on state law and varies from 10 to 20 years.101 In some states, the requirements of adverse possession also include good faith action—that is, the belief that the claimant is the owner, having a deed (even if that deed is imperfect) or being under other color of title (some document or other indication of ownership), or paying taxes on the property.102 Even if the families in the scenario above fulfilled the other requirements of adverse possession, the fact they occupied the premises for only a few months would preclude their gaining ownership through adverse possession or even an adverse right of use or access to the disputed land through a prescriptive easement—a right to use land owned by another through elements of adverse use—similar to those of adverse possession.103

97

Home Builders Ass’n of N. California v. City of Napa, 90 Cal. App. 4th 188, 195 (2001), as modified (July 2, 2001) (internal quotations and emphasis omitted). 98 See 142 Am. Jur. Proof of Facts 3d 349 (Originally published in 2014). 99 Id. 100 Id. 101 Actual possession requires the claimant to have control over the land, such as having the ability to exclude others from it. Continuous and uninterrupted possession requires the claimant not to abandon the property during the time period, nor may other people have possession of the land so long as their possession fits with how the land is designed to be used; therefore, the claimant is not required to be there 24/7 during the time period. Exclusive possession requires the claimant not to share the land with the true owner. Adverse or hostile possession requires the claimant not to have the true owner’s permission to possess the property; bad faith or ill will behind their intent is not required. Open and notorious possession requires the possession to be such that an ordinary person, especially the true owner, would be able to notice that the claimant is there. All these elements must be satisfied within the period set out by each state in its related statute. 102 See Wright v. Sourk, 258 P.3d 981, 989 (Kan. App. 2011) (requiring good faith); see also Walker v. Sapelo Island Heritage Auth., 674 S.E.2d 925, 927 (Ga. 2009) (requiring color of title). 103 See 28A C.J.S. Easements § 23 (June 2020 Update) (explaining elements required to prove the existence of an easement by prescription).

Assailed: The Paradoxical State of the Commons in the United States

507

Although this answer assumes the land is owned by the developer, even ownership by the local jurisdiction would rule out adverse possession for the families. Public land usually cannot change ownership through adverse possession because statutes of limitations usually do not apply against the state.104 3.1.1.3.2

Defense: Squatter’s Rights

The families in this scenario are what are known in the United States as squatters because they moved onto and remained at the premises without any legal right to do so.105 Squatters’ rights are synonymous with adverse possession—that is, possession against the interest of the property landowner. Adverse possession, discussed above, is the means through which a squatter may obtain ownership of a property she did not own. Before the required statutory period has expired, the property owner may eject the squatters from the property, and the property owner may also have claims against the squatters for trespass and to quiet title. Aside from criminal trespass, there seem not to be criminal statutes that make squatting a separate action. 3.1.1.3.3

Damages: Families’ Improvements

If the families had been able to gain rights to the property, they might also be reimbursed for their improvements to the property (see footnote 70). For compensation to be due, however, the improvements must have been made under color of title—the belief, based on some documentation, that they owned the property (see footnote 69). There is some evidence that people who mistakenly believed that they owned a property can be compensated for the improvements they made, but here there is no indication that the families had any reason to believe they owned the property.106

104

See Texas v. Louisiana, 410 U.S. 702, 714 (1973) (holding that land owned by the United States cannot be adversely possessed); see also City and County of Dallas Levee Imp. Dist. v. Carroll, 263 S.W.2d 307, 312 (Tex. Civ. App.—Dallas 1953), writ refused NRE (holding that title to State lands cannot be acquired by adverse possession). 105 See 13A Carmody-Wait 2d § 90:69 (Oct. 2020 update); see also Dudic Holding Corp. v. Feinstein, 129 N.Y.S.2d 401 (N.Y. App. Term. 1953) (holding that tenant was a squatter where he intruded on part of premises where he was not permitted); see also Johnson v. Davis, 183 N.Y.S.2d 910 (N.Y. App. Term. 1958) (holding that a person who is lawfully permitted on premise cannot be a squatter). 106 See Eq. Real Est. Investments, Inc. v. U.S. Dept. of Hous. and Urb. Dev., 14 F.Supp.2d 1058, 1062 (N.D. Ill. 1998); see generally 75 Am. Jur. Proof of Facts 3d 1 (Originally published in 2003) (describing circumstances in which a mistaken improver may recover compensation for improvements made to land owned by another).

508

3.2

M. E. Eppinger and H. G. Robertson

Healthcare

Together with other people from her neighborhood, Emanuela has organized a volunteer non-profit medical clinic in what appeared to be an abandoned building offering free services to irregular migrants who have no health insurance. Soon after, Syntech Corporation, the owner of the building, realizing that the market value of the building has increased since they acquired it, decides to sell it at a profit. Syntech would like Emanuela and her volunteers out of the building within a few days in order to sell it, and initiates an eviction action. Many people in the area are upset by this news. Emanuela defends.

3.2.1

Analysis of the Case

This question asks whether a non-owner of an apparently abandoned building can remain in occupation of the building when the building owner would like to regain possession. Essentially, the non-owner, Emanuela, has no lease or other right to possession of the premises but is using the space for a purpose that is positive for the neighborhood. The question also raises the issue of how much notice, if any, the landowner must give the squatters to vacate the premises.

3.2.1.1

Assumptions

This answer assumes that Emanuela has no lease or other legal right to possession, or occupation, of the premises. We also assume that the building owner is not in tax default with respect to the building or in violation of building codes or other codes pertaining to the condition of the building.

3.2.1.2 3.2.1.2.1

Doctrines and Claims Abandoned Building [Real Property]

In the United States, title to real property cannot be lost merely by abandonment. While personal property can be abandoned by evidence of disuse and intent to relinquish title, this doctrine does not apply to real property.107 So long as the property owner possesses title to the property, that title and the rights associated with it cannot be lost through abandonment. In this context, the word ‘abandoned’ takes on the more common usage of the term—meaning merely that the building was 107 See 1 Am. Jur. 2d Abandoned, Lost, and Unclaimed Property § 6 (May 2020 Update); see also Pocono Springs Civic Ass’n, Inc. v. MacKenzie, 667 A.2d 233, 236 (Pa. Super. 1995) (holding that perfected title to real property cannot be abandoned); see also Rogers v. Ricane Enterprises, Inc., 772 S.W.2d 76, 80 (Tex. 1989) (holding that real property cannot be abandoned).

Assailed: The Paradoxical State of the Commons in the United States

509

unoccupied when Emanuela came into the space and set up the clinic. The fact that the building was unoccupied, however, does not mean it was unowned.108 It does not mean Syntech has relinquished its ownership rights with respect to the building, including the right to present possession and the right to exclude non-owners from the premises. 3.2.1.2.2

Ejectment

The action brought against Emanuela by Syntech does not allow much hope for a remedy for Emanuela. There is no landlord-tenant relationship between Emanuela and Syntech that would have afforded her legal rights in the face of this rapid notice to vacate. Remedies for improperly timed eviction of a tenant could include damages or termination of a lease agreement, with the tenant no longer responsible for paying rent.109 Because there is no evidence of a landlord-tenant relationship, Emanuela is an unpermitted or illegal occupant of the premises. This gives Syntech the right to eject her to recover possession of the premises. As discussed above in Sect. 3.1.1.2.1, ejectment is used when the property owner does not have present possession of the property, but holds the right to possess it and the right to exclude non-owners from the premises—standard rights associated with property ownership in the United States.110 Syntech, as the property owner, has the right of occupancy that comes with ownership. If Syntech had transferred that right to present possession to a tenant who was then allowing Emanuela to occupy the property then Syntech would not be able to eject her, but there is no evidence of that situation here. Still, squatters do have some rights with respect to ejectment.111 Syntech may be required to give Emanuela written notice and a reasonable amount of time to leave the premises, although it appears the company may already be complying with this potential requirement.

See 1 Am. Jur. 2d Abandoned, Lost, and Unclaimed Property § 4 (May 2020 Update). See 45 Am. Jur. Proof of Facts 3d 375 § 1 (Originally published in 1998); see also Hinton v. Sealander Brokerage Co., 917 A.2d 95, 101, 102, 109 (D.C. App. 2007) (holding an evicted tenant refused access to property while lease is still in effect has no obligation to pay rent). 110 See 28A C.J.S. Ejectment § 1 (June 2020 Update) (explaining purpose of ejectment as an action to recover or restore the possession of real property); see also City of Cincinnati v. White’s Lessee, 31 U.S. 431, 441, 442 (1832) (holding that the purpose of ejectment is to obtain actual possession of property). 111 See Johnson v. Davis, 183 N.Y.S.2d 910 (N.Y. App. Term. 1958) (holding squatter could not be evicted by landlord when permission of tenant was given); see also La. Code Civ. Proc. Ann. § 4702 (Westlaw, current through the 2019 Regular Session); cf. Gardner v. Evans, 811 F.3d 843, 846 (6th Cir. 2016) (explaining that due process rights require a person in jeopardy of loss to be given reasonable notice); cf. 28A C.J.S. Ejectment § 57 (June 2020 Update) (explaining equitable defenses to ejectment). 108 109

510

3.2.1.2.3

M. E. Eppinger and H. G. Robertson

Adverse Possession

Just as in the housing case discussed above, Emanuela could attempt to use the doctrine of adverse possession to acquire ownership, and with it the right to possession, of Syntech’s property. However, without more information, it impossible to analyze this. For example, it is unknown when Syntech acquired the title, how long Emanuela had been using the property, whether Syntech knew about Emanuela’s use of the property, and whether Syntech had been allowing her to use the property for her medical clinic. These facts would be necessary to an adverse possession analysis. Once again, the elements of adverse possession are actual, continuous and uninterrupted possession, and exclusive possession, which must be adverse or hostile and open and notorious in character.112 As discussed above, adverse possession requires the claimant to possess the land contrary to the owner’s interest for many years—depending on state law, but often between 10 and 20 years.113 In this scenario, although the duration of Emanuela’s occupancy is unstated, it seems unlikely that Emanuela had been using the property continuously for a sufficiently long period of time to succeed in an adverse possession claim. If Syntech were aware of her possession and use of the building and did not object to it, perhaps by initiating an ejectment action, then her possession would not be “adverse” to Syntech’s ownership interest and an adverse possession claim would not be impossible. 3.2.1.2.4

Healthcare Exception

There does not seem to be any exception for healthcare facilities or non-profit volunteer operations from the fundamental principles and statutory laws on the rights of property ownership. That is, healthcare facilities and non-project operations like Emanuela’s clinic do not have any special rights to access to property they do not own or otherwise have rights to use or possess. In the United States, they would be treated as any other persons or entities occupying a premises without the right to be there. 3.2.1.2.5

Political or Social Action

If the community is sufficiently upset by Syntech’s retaking possession of its building that housed Emanuela’s clinic, the community might raise the issue publicly and direct unwelcome negative attention to Syntech for its ouster of the popular local clinic. Some corporations might bend to this pressure and make some

See 142 Am. Jur. Proof of Facts 3d 349 § 3 (detailing elements required for prima facie case for adverse possession); see also Quality Ag Serv. of Iowa, Inc. v. Burlington N. and Santa Fe Ry., 809 F.3d 386, 388 (8th Cir. 2015) (explaining elements of adverse possession). 113 Id.; see also 142 Am. Jur. Proof of Facts 3d 349 § 6 (detailing statute of limitations and possession for statutory period); see also Canjar v. Cole, 770 N.W.2d 449, 454 (Mich. App. 2009) (explaining Michigan’s adverse possession statute of limitations). 112

Assailed: The Paradoxical State of the Commons in the United States

511

accommodation for the clinic to remain. If Syntech did not allow the clinic to remain, for example, because it needed the space for another purpose, it might assist Emanuela in seeking alternative space for her clinic, or donate funds to make that possible. If the community felt that Emanuela’s clinic performed an important public good, could attempt to purchase the property from Syntech and allow Emanuela to run her clinic from the property legally. Or it could push the government to take ownership of the property through eminent domain for the public purpose of housing an important clinic. The fifth amendment of the U.S. Constitution provides that “no property shall be taken for public use without just compensation.”114 This means that the government may take private property for public use, such as a health clinic, if the government pays a fair price for the property. Eminent domain requires a declaration by the local (or state or federal) government that it is taking ownership of the property for a public use.115

3.3

Food

Marta, Mattias, and Madison, together with their families and neighbors cultivate a communal garden on a vacant plot of land as a food source. Max Corporation, the owner of the plot of land, discovers the three families and tells them to leave. Max Corporation brings a claim against the three families for their removal and the removal of the food grown by the families on its land.

3.3.1

Analysis of the Case

This question asks whether non-owners of land can grow food on land owned by another. It also raises the question of ownership of the food itself. Is the food owned by the people who worked to grow it, by the landowner on whose land it was grown, or in some shared manner?

3.3.1.1

Assumption

This answer assumes the families did not seek to determine ownership of the plot of land and they had no permission to cultivate the land owned by Max Corporation.

114

U.S. Const. amend. V. See 29A C.J.S. Eminent Domain § 250 (June 2020 Update) (explaining eminent domain authority and proceedings). 115

512

3.3.1.2

M. E. Eppinger and H. G. Robertson

Doctrines and Claims

3.3.1.2.1 3.3.1.2.1.1

Families’ Right to Cultivate the Max Corporation Property Trespass

According to this scenario, it seems likely the families found land that appeared vacant and decided to grow food there. In the U.S., this is sometimes called ‘guerilla gardening’116 and like any unpermitted entry on land owned by someone else, it is a trespass.117 There are often several levels of trespass with different fines and penalties. For example, where a property has signs posting ‘no trespassing’ and a person enters regardless, this might be a defiant trespass, punishable by higher fines than when there is no warning, written or verbal against trespass.118 Here, Mattias and the others believed the land to be vacant, suggesting a lack of signage or other warnings. Their trespasses, therefore, would be those of a lower degree. 3.3.1.2.1.2

Nuisance

Nuisance is an interference with a property owners’ use and enjoyment of her land.119 A court may find guerilla gardening to be a private nuisance, for example, if the gardeners are too noisy while there, thus disturbing the neighboring landowners. A court might also find a private nuisance if the garden produced crops that smelled bad, to the extent it substantially diminished the neighboring landowner’s ability to use the land. A court might find a public nuisance if the garden harms community resources, or threatens public health, safety, or welfare.120 If the garden violates law, health and safety ordinances, or zoning codes, a court might find it a public nuisance. It is also possible a problem of attractive nuisance might arise—that is when a hazard draws people to the property and causes them injury.121 Any structure in the garden might pose an attractive nuisance, making the landowner liable for injury, even to a trespasser, so landowners might have incentive to remove them. It is not clear what liability would be borne by the non-owner gardeners.

See “Gardening Without Ownership: Gardening on Land You Don’t Own: What You Need to Know about Best Practices, Risks and Tactics” (2022). 117 See generally 87 C.J.S. Trespass §1 (June 2020 Update) (explaining trespass offense). 118 See United Food and Com. Workers Union, Loc. 72 v. Borough of Dunmore, 40 F.Supp.2d 576, 584 (M.D. Pa. 1999) (explaining defiant trespass offense). 119 See generally 66 C.J.S. Nuisances § 1 (June 2020 Update) (explaining definition of nuisance and brief history of its use). 120 See generally 66 C.J.S. Nuisances § 8 (June 2020 Update) (explaining nature of public nuisance). 121 See generally 65A C.J.S. Negligence § 586 (June 2020 Update) (explaining nature of attractive nuisance). 116

Assailed: The Paradoxical State of the Commons in the United States

3.3.1.2.1.3

513

License

Had the families located the landowner corporation prior to planting the garden, they may have gained permission—a license to use the land for cultivation.122 There is no indication the families attempted to locate the landowner or secure permission to use the land for cultivation. As discussed in the healthcare scenario above, no land is “abandoned”—or without an owner—in the U.S., so someone or some entity owns the land and holds the right to use it and control how it is used.123 3.3.1.2.1.4

Conservatorship

Conservatorship allows a non-owner of vacant land to gain the right to manage it and return it to productive use and into compliance with law.124 A guardian or protector—here, for example, the cultivators—could be appointed by a court to be the caretaker for a parcel of vacant land owned by someone else. Conservator laws— sometimes called receivership laws—exist in several states: Louisiana, Maryland, Massachusetts, Missouri, New Jersey, Ohio Pennsylvania, and Oregon.125 There are numerous requirements applicable to the land and to the potential conservator and without more facts it is not possible to determine whether conservatorship is a possibility here. If so, however, the families in this scenario could protect their ability to cultivate the land by becoming appointed the conservator of it. 3.3.1.2.1.5

Publicly-Owned Land

If the vacant land on which the families gardened had been publicly owned, for example by the local government, the families would have no opportunity for adverse possession in U.S. courts. Generally, one may not adversely possess government-owned land because the statutes of limitations required for establishing adverse possession do not run against the government.126 There are, however, some ways the gardening families might work with a government landowner to continue cultivating the land. For example, the families might enter into an interim-use agreement with the local government, if allowed by local ordinances. Interim-use agreements allow temporary use of property until a particular date or event, or until zoning regulations no longer permit the use. In Philadelphia, for example, the agreements require that land use comply with Philadelphia’s Zoning Code. Another possibility is a joint-use agreement, which would define the terms and conditions for shared use of city land. Joint-use agreements are often between two government

122

Sustainable Economies Law Center (2010). See 1 Am. Jur. 2d Abandoned, Lost, and Unclaimed Property § 6 (May 2020 Update). 124 See Blake et al. (2013). 125 Id., 4. 126 See 3 Am. Jur. 2d Adverse Possession § 155 (May 2020 Update) (adverse possession and other claims predicated on lapse of time may not be asserted against governments). 123

514

M. E. Eppinger and H. G. Robertson

entities, but could potentially be created to set terms for the cultivator and the city. 127 The cultivators might be able to lease the land at low or no cost. Many cities in the U.S. lease vacant, city-owned properties for urban agricultural activities—an urban garden, a community garden, or an urban farm. An urban garden is a non-commercial garden used by one household; a community garden is a non-commercial garden managed by a nonprofit; and an urban farm is a commercial garden that has a goal of earning a profit. Agreements and leases can help protect guerilla cultivators, but the activity is not without risk. New York State, for example, is well known for its community gardens, but New York City has been able to build housing units or force out gardeners even when they thought they were within their rights to maintain a community garden.128 3.3.1.2.2 3.3.1.2.2.1

Families’ Right to the Food Doctrine of Accession

The food grown at the plot might arguably be owned by the families on the theory it was born of their labor. Under the doctrine of accession, an individual may obtain an interest in personal property if the individual, through the investment of time and labor, materially alters or changes the form of the original property.129 This doctrine applies even when the original property, used to create the new property—here the food, belongs to another, here Max Corporation. The argument would be that the families took nutrients from the landowner’s soil, and through their time and labor turned it into food. However, the food grown at the plot might, arguably, be owned by the landowner because fixtures—items attached to the land, or within it—are presumed to be owned by the landowner.130 There seems to be no clear answer as to whom the food of community gardens belongs when the property ownership of the garden land is 127 See bridging the gap (2012) (example agreements between public school systems and communities). 128 See New York City Coalition for the Preservation of Gardens v. Giuliani, 670 N.Y.S.2d 654 (NY Sup. Ct. 1997) (holding city may force destruction of community gardens for housing construction); see also New York City Envtl. J. All. v. Giuliani, 214 F.3d 65 (2d Cir. 2000) (failure to make prima facie showing of adverse disparate impact); see also Worley v. Giuliani, 8 F. App’x 131 (2d Cir. 2001) (failure by community garden organization to state a claim and lack of standing). 129 See 1 Am. Jur. 2d Accession and Confusion § 1; see also IDS Leasing Corp. v. Leasing Assocs., Inc., 590 S.W.2d 607, 609 (Tex. Civ. App. 1979), writ refused NRE (Mar. 5, 1980) (explaining that accession is generally employed to signify acquisition of title to personal property by its conversion into an entirely different thing by labor bestowed on it or by its incorporation into a union with other property). 130 See Fowler v. Fowler, 227 Cal. App. 2d 741, 747 (Ct. App. 1964) (stating that in the absence of any competent evidence to the contrary, if a structure or article annexed to realty is of such a character, and is affixed in such a manner, as to be apparently intended for the permanent use and enjoyment of the realty, there is a presumption that it is a fixture and belongs to the owner of the realty).

Assailed: The Paradoxical State of the Commons in the United States

515

disputed. However, property ownership is not disputed in these facts. The land is owned by Max Corporation. When the gardeners have permission to use the property for the cultivation, barring agreement otherwise, they may keep the food for themselves, sell it, or donate it to charity.131 Generally, when a landowner grants permission to cultivate, the landowners are not involved in what happens to the food produced. Here, however, the families did not have the landowner’s permission to cultivate the landowner’s land. The families likely will be unable to claim adverse possession or adverse use of the property, even if they did satisfy the required statutory period, unless they are not using the land in the manner of a true owner. For example, would a true owner of this property generally use it for farming or gardening, or is primarily used for commercial or residential housing? The facts do not say. If the corporation sought ownership of the food the families produced, a court would have to decide as there is no clear prior ruling on the question.132 3.3.1.2.2.2

Claim for Quantum Meruit

If the families do not obtain ownership of the food itself, they may have a claim in quantum meruit. The theory here is that the landowner has been unjustly enriched at the expense of the families.133 The landowner did not have food before, the landowner now has food, and the landowner obtained the food at the cost of the families’ time and labor. Therefore, the families should receive just compensation for the benefit conferred onto the landowner.

3.4

Water (Rural)

Maya, Malik, and Mei depend on the water of Flumia, a nearby river. The three villagers together with other villagers in the area build aqueducts and an irrigation

131

Mitchell Hamline School of Law (2017), p. 51. See generally 1 C.J.S. Accession § 1 (September 2020 Update) (explaining that the doctrine of accession has developed with changing conceptions of justice and been applied to more varied and complex situations, including persons making new goods or articles, with the additions of skill or labor, out of materials different in nature to those which belonged to another person); see, e.g., Bancorp Leasing and Fin. Corp. v. Stadeli Pump & Const., Inc., 739 P.2d 548, 551 (Or. 1987) (in applying the doctrine to machine parts, explaining that the common-law doctrine of accession developed from Roman law and requires that the incorporation of goods “had to be such that the component goods could not be recovered . . . or could be recovered only at substantial economic cost”); but see Hamilton v. Rock, 191 P.2d 663, 668 (Mont. 1948) (explaining that the doctrine of accession will apply to trespassers who, willfully or in good faith, take crops belonging to another. However, the trespasser may be liable for the value of the crops at the time of the conversion). 133 See Dinan v. Alpha Networks Inc., 2013 ME 22, ¶ 19, 60 A.3d 792, 797 (explaining that a claim for relief pursuant to quantum meruit seeks recovery for services or materials provided under an implied contract). 132

516

M. E. Eppinger and H. G. Robertson

canal from the river to their respective homes and fields. After a few years, a private corporation diverts the water of the Flumia River. Soon after, Maya, Malik, and Mei realize that water no longer flows to the aqueducts and irrigation canal from the river. Maya, Malik, and Mei sue.

3.4.1

Analysis of the Case

This question asks whether a person has a superior claim to the water from a nearby river when the person was using the water and the second party later begins diverting water from the river upstream.

3.4.1.1

Assumptions

None.

3.4.1.2

Answer

In the United States, surface water rights are governed by two different systems: riparian rights and prior appropriation.134 In general, riparian rights govern rights to water in the eastern half of the country and derive from English common law, whereas prior appropriation applies to water rights in the western half of the country and is organized by state statutes.135 A few states, such as California, have hybrid systems that use both systems of surface water rights.136 Riparian rights are vested property rights to use surface water that adjoins the riparian owner’s property.137 These rights include the right to make both natural and artificial use of the water, to construct and maintain docks, and to use the surface of the water for recreational purposes.138 Riparian surface water rights apply to natural 134 See Boyd v. Motl, 236 S.W. 487, 492 (Tex. Civ. App.—Austin 1921), writ granted (Mar. 1, 1922), rev’d, 286 S.W. 458 (Tex. 1926) (explaining that all riparian owners have the right to use their just proportion of the water flowing past their lands, and that no use of water by a subsequent appropriator can be said to be adverse to the right of a prior appropriator, unless such use deprives the prior appropriator of it when he has actual need of it); see also Wackerman Dairy, Inc. v. Wilson, 7 F.3d 891, 897 (9th Cir. 1993) (explaining that a prior appropriator is entitled to all the water he needs, up to the amount that he has taken in the past, before a subsequent appropriator may take any). 135 Dellapenna (2011), p. 54. 136 See 62 Cal. Jur. 3d Water § 422. 137 See 2000 Baum Fam. Tr. v. Babel, 773 N.W.2d 44, 50 (Mich. App. 2009), rev’d, 793 N.W.2d 633 (Mich. 2010) (explaining that land that includes borders or is bound by water is considered riparian land). 138 Id. (stating that riparian rights include the right to the natural flow of the waters with “no burden or hindrance imposed by artificial means”); see also Rice v. Naimish, 155 N.W.2d 370, 372 (Mich. App. 1967).

Assailed: The Paradoxical State of the Commons in the United States

517

watercourses, not to artificial or man-made water sources such as artificial ponds.139 Other artificial water sources include canals, drainage and irrigation ditches, aqueducts, and flumes.140 Furthermore, each riparian owner has equal rights in the stream and the use by each riparian owner must be reasonable as regards the rights of the others.141 In other words, every riparian owner has the right to take all the water her needs require, so long as that use does not injure her riparian neighbors, in which latter case she may use only her just proportion.142 Further, judges have held that rights of riparian users are paramount over those of subsequent appropriators143 and that holders of riparian rights may satisfy their reasonable needs before others may divert water. So, if the villagers hold riparian rights, their rights to the water would be superior to those of the company that began diverting water after the villagers were already using it. To hold riparian rights, the villagers would have to own land adjacent the river and the question does not indicate anything regarding the villagers’ land ownership. If the villagers do not own land abutting the river they may not claim riparian rights to the water, even if their land is next to the irrigation ditches they built. Villagers who do own property along the river will have riparian water rights, and may enforce those rights against the company that diverted the stream. However, this raises the question of degree. To what extent may the property owners adjacent the river enjoin the company from diverting the water? Do the adjacent property owners have a right to the same quantity of water the entire village was using before the diversion, or only the quantity that the individual owner happens to use? To answer these questions would require more information than is provided. The second doctrine controlling surface water rights in the U.S. is prior appropriation. Prior appropriation allows property owners to divert surface water even when a rights owner’s property does not adjoin the watercourse.144 Under prior appropriation, the person who first uses, or appropriates, the waters and applies them to a beneficial use establishes a right to its continued use as long as the water is beneficially diverted.145 An appropriation under applicable law gives the appropriator a vested right to take water from the same source and to use and consume the same quantity of water annually forever, subject only to the right of prior appropriators.146 Under this rule, the villagers would have a greater right to the

139

Ruggles v. Dandison, 279 N.W. 851, 852, 853 (Mich. 1938). Id., 852. 141 See Boyd v. Motl, 236 S.W. 487, 492 (Tex. Civ. App.—Austin 1921), writ granted (Mar. 1, 1922), rev’d, 286 S.W. 458 (Tex. 1926). 142 Id. 143 See Benton v. Johncox, 49 P. 495, 496 (1897) (holding riparian users are entitled to water rights over subsequent appropriators). 144 See L. of Water Rights and Resources § 5:15 (July 2019 Update) (explaining appropriative water rights are limited to the right to use water, not an ownership right). 145 See Miller & Lux, Inc. v. Bank of Am., 212 Cal. App. 2d 719, 728 (Ct. App. 1963). 146 Id.; see also 94 C.J.S. Waters § 423. 140

518

M. E. Eppinger and H. G. Robertson

water than the company because the villagers used the water for beneficial use before the arrival of the company. The company’s subsequent effort would not be allowed to impair villagers’ right to the water. Further, senior (or prior) appropriators, those who acquired their rights first, are entitled to satisfy their reasonable needs, up to their full appropriation (the amount they had been using in the past), before more junior (or later) appropriators are entitled to any water. Assuming the villagers hold rights senior to the company, the villagers’ rights should prevail.

3.5

Water: Urban

Jose, Jasmine, and Horatio are three friends that inhabit an apartment together in a city, Flumiapolis. Following a large increase in the price of water (200% in one year), the three friends fail to pay their water bills. After failing to pay their third bill, the water management company cuts off their access to the water supply. Jose, Jasmine, and Horatio sue.

3.5.1

Analysis of the Case

This question asks whether one is entitled to take water from an urban public water supply system when they are not paying for it.

3.5.1.1

Assumption

The response to this scenario assumes that before the price increase the roommates had paid their water bills. It assumes their shut down notice was contained in their monthly utility bill. Although this response will also address inability to pay, it assumes at the outset the roommates’ non-payment is a matter of protest, not necessarily a matter of inability to pay.

3.5.1.2 3.5.1.2.1

Claims and Doctrines Water as a Fundamental Right

Although the U.S. has not recognized the right to water as a fundamental right in international law, some U.S. courts have found a human right in access to water. For example, in limited circumstances, they have recognized: a right to clean water,147

147 See Michael v. Gettysburg Foundry Specialties Co., 30 Pa. D. & C.4th 31, 38 (Pa. Com. Pl. 1995); see generally United Nations General Assembly (2000) (the General Assembly “Reaffirms that, in the full realization of the right to development, inter alia: (a) The rights to food and clean water are fundamental human rights . . . ”).

Assailed: The Paradoxical State of the Commons in the United States

519

right to water,148 a right to water and sanitation,149 a right to drinking water and sanitation,150 a right to sufficient supplies of water,151 a right to a sufficient quantity of clean water for personal and domestic uses,152 a right to have access to adequate and safe sanitation,153 a right to “access to safe water,”154 and a right to “access to water for life.”155 Still, only one U.S. state, California, has enshrined the human right to water into law.156 In 2014, the city of Detroit, Michigan, shut off water service to 35,000 households for nonpayment of water bills. A large group of Detroit water customers sued in a class action to stop the disconnections.157 The customers failed, however, because the lawsuit was brought in conjunction with the city’s request for financial relief in bankruptcy and the court would not impose, in that context, a requirement upon the city’s water district that it provide water free of charge or at a mandatory price. The 6th Circuit Court of Appeals said, in its opinion, “[t]he circumstances plaintiffs allege are truly unfortunate. Living without water, even if only for a few days, poses a substantial risk to health and safety. Beyond that, it is a significant indignity.”158 Still, the court concluded that: “[a right to affordable water service] is not rooted in our nation’s traditions or implicit in the concept of ordered liberty.”159 If the right to affordable water service is not fundamental, it will be difficult for the roommates to succeed in a civil rights action that would allege denial of a fundamental right. 3.5.1.2.2

Due Process

Although the roommates’ outlook looks bleak regarding deprivation of a fundamental right, they might attempt a lawsuit under U.S. civil rights law, 42 U.S.C. § 1983, which provides for a civil action for deprivation of Constitutionally protected rights.160 The section 1983 civil rights law allows people to sue the government

148 See United Nations Committee on Economic (2003), 1 (“The human right to water is indispensable for leading a life in human dignity. It is a prerequisite for the realization of other human rights.”); see also Knight (2003). 149 See Guissé (2005), p. 2. 150 Id., 1–5. 151 Id., 5. 152 Id. 153 Id. 154 Watkins (2006), p. 4 (“access to safe water is a fundamental human need and, therefore, a basic human right”). 155 Id., v (“Access to water for life is a basic human need and a fundamental human right”). 156 Cal. Water Code Ann. § 106.3 (West through Ch. 4 of 2020 Reg Sess). 157 In re City of Detroit, Mich., 841 F.3d 684 (6th Cir. 2016). 158 Id., 703. 159 Id., 700. 160 42 U.S.C. § 1983 (West 2020) (civil action for deprivation of rights).

520

M. E. Eppinger and H. G. Robertson

for violation of civil rights and applies when someone, acting “under color of” state or local law, deprives a person of a Constitutionally guaranteed right, such as a property right.161 Where state laws create a property interest in water service and the water service provider denies that service, the person deprived of water might sue for deprivation of a property right guaranteed by state law.162 Understand, though, that as shown above in the case regarding Detroit, Michigan, it is not clear the right to affordable access to water is a Constitutionally protected right. The roommates might argue that because the termination of water service was without sufficient notice or hearing, it violated their right to due process guaranteed by the Fourteenth Amendment to the U.S. Constitution.163 When state laws create property interests in continued utility service, the provider must follow the procedural constraints of the Fourteenth Amendment.164 In this instance, due process would require informing the resident of the possibility of termination, the procedure for challenging a disputed bill, as well as an established procedure for dispute resolution.165 The water service provider would need to give adequate notice and have a hearing procedure prior to termination to ensure the termination is not in error and there is no arbitrary withholding of essential services.166 The roommates might succeed here because their notice of termination was contained only in a monthly bill and courts have found notice provided only in a monthly utility bill to be insufficient.167 To make this case, the roommates must show that state law created a property interest in affordable access to water, and that the provider is a municipally controlled utility.168 Next, they must show that the interest is protected by the due process clause.169 Finally, the court would evaluate the water provider’s compliance with the requirements of due process.170 If the roommates can establish these factors, they might secure continued water service. Sometimes, although state law establishes a property interest in access to water, the customers’ claims will still fail. For example, in Montana, state statutes allow for the establishment and operation of sewage and water systems by municipalities,

161

Id. Id. 163 16D C.J.S. Constitutional Law § 2405 (Oct 2020 Update); Pilchen v. City of Auburn, N.Y., 728 F. Supp. 2d 192, 199 (N.D.N.Y. 2010). 164 Id. 165 Id. 166 Id. 167 See Memphis Light, Gas and Water Div. v. Craft, 436 U.S. 1, 14, 15 (1978) (holding a monthly bill is not sufficient notice to satisfy due process). 168 Frates v. City of Great Falls, 568 F. Supp. 1330, 1337 (D. Mont. 1983), aff’d in part, remanded in part, 732 F.2d 163 (9th Cir. 1984). 169 Id. 170 Id. 162

Assailed: The Paradoxical State of the Commons in the United States

521

which creates the required property interest.171 That said, Montana law also states that nonpayment of water and sewer charges can allow the applicable governing body to direct the supplier to discontinue service.172 In these cases, termination can only be for cause and is subject to due process.173 It is not sufficient, for example, for a final shut-off notice to be contained in a utility bill, which usually states only that payment is overdue, that service will be discontinued if payment is not made by a date certain, and does not inform customers how they may protest the impending termination.174 For example, the Memphis Light, Gas and Water Division provided the utility service for the city of Memphis, was subject to municipal government control, and had a statutory exemption from regulation by the state public service commission.175 Because MLG&W was obligated to provide service “to all of the inhabitants of the city of its location alike, without discrimination, and without denial, except for good and sufficient cause” and could not terminate service except “for nonpayment of a just service bill,” a property interest was created for its customers. Local law remedies available for aggrieved customers also showed that the state recognized water access as a protected interest. Still, although the customer’s right to continued service is conditioned upon payment of the charges properly due, “[t]he Fourteenth Amendment’s protection of ‘property’ . . . has never been interpreted to safeguard only the rights of undisputed ownership.”176 The customers there succeeded in a due process claim against the water service provider. While the state laws explicitly apply to municipally owned utilities, some U.S. residents receive water through private companies.177 These companies generally are contracted with municipalities, and the setting of the community’s water rates remains the responsibility of the city and its governing body. Public utility commissions set rates for privately owned and operated utilities based on evidence displayed during their proceedings. It is likely that private companies contracting with cities would be unable to discontinue service without the permission of the applicable governing body and would also be subject to the requirements of due process.178

171 Mont. Code Ann. 7-13-4301 (West, current through the 2019 session) (establishment of sewage and water systems for municipalities). 172 Mont. Code Ann. 7-13-4306 (West, current through the 2019 session) (effect of failure to pay charges can allow governing body to direct water supplier or provider to discontinue service). 173 See Frates v. City of Great Falls, 568 F.Supp. 1330, 1336, 1337 (D. Mont. 1983), aff’d in part, remanded in part, 732 F.2d 163 (9th Cir. 1984). 174 See Wayt v. Town of Crothersville, 866 F.Supp.2d 1008, 1020 (S.D. Ind. 2012) (holding “delinquent card” without providing information as to any procedures to protest proposed termination of services is constitutionally inadequate). 175 Memphis Light, Gas and Water Div. v. Craft, 436 U.S. 1, 14, 15 (1978). 176 Id., 11. 177 See Kopaskie (2016). 178 Cf. 27A Am. Jur. 2d Energy and Power Sources § 145 (May 2020 Update) (explaining governing bodies have authority to review agreements with utility companies and require performance standards for utility companies); see also 27A Am. Jur. 2d Energy and Power Sources §

522

M. E. Eppinger and H. G. Robertson

For the roommates to succeed, they must live in a state where water service is an interest protected by due process. Regardless of whether it is a public entity or a private entity contracted with a local government, the water service company likely must answer to the municipal governing body with respect to rates and services cessation.179 If the roommates’ notice of termination did not meet the requirements of due process, they might succeed in their suit. If so, the roommates should be able to receive their requested relief and have their water service reinstated. However, if the provider’s notice satisfied due process, and it were acting on the direction of its governing body, the termination of service likely was legal and the roommates will lose. Even if the roommates succeed in a due process suit, the roommates’ problem of future inability to pay for increased water rates remains. Across the U.S., citizens are pushing their water providers to embrace water affordability plans that index water and sewerage rates to income, and set rate caps at 3% of household income.180 In addition, many utilities in the U.S. offer programs for bill payment assistance and rate adjustments based on income and other factors. If the roommates’ problem is an inability to pay the increased rates, the roommates would be well-served to look into utility-based assistance programs (these exist in most states and for most utilities). They are funded by a combination of government funds and private and charitable donations.

3.6

Access to Nature

Hamid, Heba, and their two children used to spend many weekends walking and playing in one of the few green areas at the outskirts of the city where they live. The land belongs to a private owner who lives in a small house near the lake. Corporation C acquires the green area and converts it into a members-only country club. Hamid and Heba sue. A local environmental group also sues claiming access to what they consider a natural commons.

3.6.1

Analysis of the Case

This question essentially asks whether non-owners of land have a right of access to land they do not own, when they previously had implied permission to use it under the prior owner. Specifically, the question is whether Hamid and Heba, or the general

156 (May 2020 Update) (explaining a private energy corporation engaged in furnishing energy to a municipality or its inhabitants is a public service and subject to laws applicable to corporations engaged in rendering service of a public nature). 179 Id. 180 See generally Mack and Wrase (2017) and Lakhani (2020).

Assailed: The Paradoxical State of the Commons in the United States

523

public, obtained an interest in the greenspace through their continued use of the land before Corporation C acquired ownership of the land.

3.6.1.1

Assumptions

To answer this question, we assume that Hamid and Heba regularly walked and played on the privately owned land and that Hamid and Heba were not the only people to do so. We assume this due to their perception that the land was a natural common. Additionally, we assume that the prior owner’s home by the lake is on the same plot of land as the greenspace and that the prior owner was aware that the public used her land. His permission was, therefore, either express or implied.

3.6.1.2 3.6.1.2.1

Hamid and Heba’s Cause of Actions Public Right of Access to Private Land for Recreation

Unlike several countries, in particular the Scandinavian countries, the U.S. has no right of the public to access privately owned land for recreation, by statute, custom, or constitution.181 The U.S.-recognized property right to exclude non-owners from private land is strong and, with limited exception, landowners can exclude non-owners from their land at-will.182 Some efforts have been made in the U.S. to expand the access rights of non-owners to privately owned land for recreation, but they have met with extremely limited success. For example, the Rails-to-Trails Conservancy, a non-profit organization, works to preserve unused railroad corridors for public use as recreational trails, supporting development of trails and advocating for funding.183 Much of their work culminated in the National Trails System Improvements Act of 1988, establishing federal support for converting unused privately owned railroad corridors to public trails intended for recreational use.184 In some regions of the U.S. custom provides public access to private land for recreation by implied permission as opposed to access by any right.185 In other parts

181

See Robertson (2011), pp. 252 and 260–261 (explaining lack of access to privately owned land for recreation in the United States as opposed to various European countries). 182 73 C.J.S. Property § 3 (June 2020 Update) (explaining right of exclusion is a recognized fundamental property right); see also In re Forchion, 198 Cal. App. 4th 1284, 1308 (2011). 183 See “History of RTC and the Rail-Trail Movement” (2022). 184 See 16 U.S.C.A. § 1241 (West, current through P.L. 116–45). 185 See generally 47 A.L.R. 4th 262 (originally published in 1986) (explaining nature of recreational use statutes and history thereof); see also Olson v. Bismarck Parks & Recreation Dist., 642 N.W.2d 864, 867 (N.D. 2002).

524

M. E. Eppinger and H. G. Robertson

of the country, the right to exclude non-owners from private land is so strong that a non-owner entrant risks being shot.186 3.6.1.2.2

Prescriptive Easement

Heba and Hamid might assert they acquired a right to use the greenspace for the purpose of recreation through their continued use of it for that purpose: a prescriptive easement. To obtain a prescriptive easement, the adverse claimant must satisfy elements that closely resemble those necessary to gain ownership through adverse possession, discussed above, but adverse possession earns title to property for the adverse claimant whereas a prescriptive easement yields only the right to a specific use of someone else’s land.187 To gain a prescriptive easement, the claimant must prove that her use of the land was: (1) adverse, meaning contrary to the interest of the landowner and without the landowner’s permission; (2) under a title or a claim of right—a reason to believe she was entitled to use it; (3) in a manner that would put the owner of the land on notice of her claim; and (4) continuous and uninterrupted. The use must have been in a manner that satisfied these elements for the entire period required by state statute.188 Because we know nothing about the period of time over which Hamid and Heba used the land, it is not possible to know whether they used it for any required statutory period. Also, if their use were permissive, as we assumed, their claim for a prescriptive easement will fail because their use was not contrary to the landowner’s interest.189

3.6.1.3 3.6.1.3.1

Local Environmental Group’s Cause of Actions Standing

If a local environmental group wanted to help Hamid and Heba to secure access to the greenspace for public recreation, it must have standing before it is entitled to judicial process.190 To establish standing, a plaintiff must demonstrate that (1) the plaintiff suffered an injury in fact, which is concrete and particularized and actual or imminent rather than conjectural or hypothetical; (2) there is a causal connection between the injury and conduct complained of so that the injury is fairly traceable to

186

Compare with People v. Jones, 434 P.3d 760, 765 (Colo. App. 2018) (holding an owner of property is justified in using any degree of force against a trespasser “in knowing violation of the criminal law”); see generally Holliday (2012) (explaining history of deadly force self-defense laws known as “castle laws”). 187 See 28A C.J.S. Easements § 23. 188 Id.; see also Kawulok v. Legerski, 2007 WY 133, ¶ 10, 165 P.3d 112, 115 (Wyo. 2007). 189 See Villa Nova Resort, Inc. v. State, 711 S.W.2d 120, 127 (Tex. App.—Corpus Christi 1986); see also Dinino v. Newman, 2016 WL 6602054 (Mass. Land Ct., 2016) (holding a prescriptive easement accrues only if the use is adverse, not permissive). 190 U.S. Const. art. III, § 2, cl. 1.

Assailed: The Paradoxical State of the Commons in the United States

525

the challenged action of the defendant and not the result of the independent action of some third party who is not before the court; and (3) it is likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision.191 In Sierra Club v. Morton, for example, the Court held that absence of an allegation that the club or its members would be affected in any of their activities or pastimes by the proposed project demonstrated the club lacked standing.192 Therefore, unless certain members of the local environmental group (perhaps even Hamid and Heba themselves) can demonstrate they would be affected by the development of the country club, the group likely lacks standing to assert its claim on behalf of the public.193 However, if the local environmental group can overcome the standing requirement, perhaps by showing that Hamid and Heba were members and were harmed, then the group might help fight the exclusion of its members from the land. Unfortunately, the analysis of the group’s claims would mirror those of Hamid and Heba, and would likely fail for similar reasons.

3.7

Access to Territory

Yellowriver is a small village sitting within a large and remote forest area. The government grants to Gold Masters Corporation permission to dig seeking for gold in order to develop a nearby mine. Aware of the high polluting risks of gold extraction to the nearby river, villagers erupt in protest and attempt to stop the project by legal means. Do they have any available action to protect the river— either as individuals or as an endangered community?

3.7.1

Analysis of the Case

This question asks whether the community, either as individuals or as a local government entity, can prevent Gold Masters Corporation from developing a mine that will pollute a nearby river.

3.7.1.1

Assumptions

We assume that the area being excavated is not owned by the village, but is, instead, owned by a larger government entity, perhaps a state or federal government. We assume that the pollution is substantial and, under the given circumstances,

191

Lujan v. Defs. of Wildlife, 504 U.S. 555, 560 (1992). Sierra Club v. Morton, 405 U.S. 727 (1972). 193 Id. 192

526

M. E. Eppinger and H. G. Robertson

unreasonable. Additionally, we assume that the individual has some sort of property interest in the river, such as living along it.

3.7.1.2 3.7.1.2.1

Individual Cause of Actions Private Nuisance

To enjoin Gold Masters Corporation from continuing to develop the mine, the villagers might bring a private nuisance action. Private nuisance requires the villagers to demonstrate that the Corporation intentionally acted in a manner that substantially and unreasonably interfered with the villagers’ use and enjoyment of their property.194 The intent necessary to prove a nuisance claim is merely the intent to act, not the intent to create a nuisance.195 Furthermore, whether an activity causes a substantial or unreasonable interference often depends on character, intensity, and duration of the activity.196 In this example, the Corporation is intentionally mining, which should satisfy the intent requirement. Furthermore, as assumed above, the pollution caused by the Corporation’s activities would substantially and unreasonably interfere with villagers’ use and enjoyment of the property: the river and any villager property adjoining it. It appears, therefore, that the villagers might prove a prima facie case for private nuisance and might earn an injunction to stop the mining from continuing. There are two major problems, however, with private nuisance as a solution to this scenario. First, nuisance is reactive, not proactive. The villagers could use it to stop an ongoing activity, or to gain redress from harm caused, but it likely would not prevent the activity from occurring in the first place. Second, courts are not required to grant an injunction stopping an activity even when the court finds the activity constitutes a private nuisance. Courts balance numerous factors to determine an appropriate remedy. If the mining company employs many villagers, for example, or is a major contributor to the tax base, the court could assign a remedy of financial damages rather than injunction.197

58 Am. Jur. 2d Nuisances § 33. 4 Modern Tort Law: Liability and Litigation § 35:8 (2d ed.) (June 2020 Update). 196 Monks v. City of Rancho Palos Verdes, 167 Cal. App. 4th 263, 303 (2008), as modified on denial of reh’g (Oct. 22, 2008). 197 See Calabresi and Melamed (1972), p. 1116 (explaining approaches to nuisance by courts considering injunction or damages); see also Madison v. Ducktown Sulphur, Copper & Iron Co., 83 S.W. 658, 661 (Tenn. 1904) (holding courts have discretion to award damages or injunction in nuisance cases); see also Boomer v. A. Cement Co., 257 N.E.2d 870, 873, 874 (N.Y. 1970) (holding when a polluting factory has significantly invested in and employed the neighboring community injunction may be inappropriate). 194 195

Assailed: The Paradoxical State of the Commons in the United States

3.7.1.2.2

527

Public Nuisance

A public nuisance occurs where the defendant’s actions interfere with the rights of the public at large.198 Typically, the interference must occur so as to offend public morals, or interfere with the property, health, safety or comfort of a considerable number of citizens.199 Here Gold Masters Corporation’s operations are polluting a nearby river. The village is in a remote area, where villagers likely rely heavily on the river, perhaps for drinking water. Therefore, the community likely can prove a prima facie case for public nuisance. However, courts are reluctant to enjoin an activity, even one that is a public nuisance, if that activity has been considered and specifically authorized by the relevant government entity.200 Therefore, if the Corporation is operating lawfully, pursuant to government issued permits, it may be able to defend against the public nuisance action.

3.7.1.3

Community or Environmental Rights-Based Claims

At least one state, Pennsylvania, has adopted an environmental bill of rights as part of its state constitution.201 It asserts the right to clean air and water, and the preservation of natural and other values of the environment.202 It confers responsibility to the Commonwealth of Pennsylvania and its cities and towns for acting to maintain these rights on behalf of the people.203 Several other states have contemplated the adoption of an environmental bill of rights, either as an amendment to the state constitution or by statute.204 Environmental bills of rights assert that the people have a right to the protection of natural resources and impose a duty on the state and its subsidiaries to conserve and maintain them for the benefit of all the people.205 Therefore, if the state has adopted an environmental bill of rights, it must take action against a source of environmental

58 Am. Jur. 2d Nuisances § 26 (May 2020 Update). Id. 200 See S. Lake Worth Inlet Dist. v. Town of Ocean Ridge, 633 So. 2d 79, 87 (Fla. 4th Dist. App. 1994) (refusing to find a public nuisance where the plant’s operation was in compliance with a government issued permit). 201 Penn. Const. art. I, § 27 (“The people have a right to clean air, pure water, and to the preservation of the natural, scenic, historic and esthetic values of the environment. Pennsylvania’s public natural resources are the common property of all the people, including generations yet to come. As trustee of these resources, the Commonwealth shall conserve and maintain them for the benefit of all the people”). 202 Id. 203 Id. 204 See Robinson (2017), pp. 12–13 (advocating for an amendment to the New York State constitution recognizing a fundamental human right to the environment); see also Henderson and Ben-David (1998) (discussing the possibility of an amendment to the State of Florida’s constitution establishing an environmental bill of rights). 205 Id. 198 199

528

M. E. Eppinger and H. G. Robertson

pollution.206 If the state fails to do so, then the citizens of the state would have a cause of action against the state for neglecting its constitutional duty.207 If the villagers lived in a state with an environmental bill of rights, it would be incumbent upon the local and state governments to act in some way in their defense. Distinct from environmental bills of rights that assert rights on behalf of the citizens, some communities have adopted a community bill of rights (“CBR”) that asserts nature has rights of its own, enforceable on its behalf by citizens. CBRs may be adopted through amendments to local charters—which are akin to a local constitution, or by local ordinance—the legislative approach.208 Although many local jurisdictions have adopted CBRs, there has been no resulting enforcement of rights of nature per se.209 The most prominent enactment of a CBR approach in the U.S. is by City of Toledo, Ohio: adoption, by vote of its citizens, to assign certain rights to Lake Erie, enforceable by Toledo’s citizens.210 Toledo’s CBR was immediately challenged in federal court and the case is undecided.211 If the villagers lived in a place with a CBR, they could attempt to take legal action on behalf of the river to stop the pollution. This is, however, an evolving and as yet uncertain area of law in the U.S.

3.8

Access to Culture

State funding to a nonprofit local theater is cut in response to austerity measures; as a result, the theater will be sold to a private company that wants to operate the theater at a profit. Evgenia, Misha, and Katia are actors, and along with other concerned citizens that protest the sale and other workers, they occupy the theater, and continue the theater’s programming for the public through a combination of volunteer work and donations. The municipality brings suit to evict against Evgenia, Misha, Katia, and the other actors. Variation: Assume that the actors obtain permission to stay and to use the theater provided that they run it as a commons in the interest of culture and future generations. What legal form should they use to this purpose?

206

Id. Id. 208 See Robertson (2016), pp. 97–98 (explaining community bills of rights and their application in local constitutions and legislation). 209 See generally McDonough (2020) (discussing the history of rights of nature in the U.S. and attempts at enforcement of the rights of nature). 210 Toledo, Oh., Charter Ch. XVII §§ 253–60 (2019). 211 See Drewes Farms Partn. v. City of Toledo, 441 F.Supp.3d 551 (N.D. Ohio 2020). 207

Assailed: The Paradoxical State of the Commons in the United States

3.8.1

529

Analysis of the Case

This question asks whether the municipality landowner can eject a group of citizens when the citizens are occupying a theater building owned by the municipality and the citizens are engaged in a cultural activity.

3.8.1.1

Assumptions

We assume the municipality has not yet sold the theater. Additionally, we assume the theater group has no property interest in the theater (such as a lease) and the citizens had permission from the municipality landowner to use the space. 3.8.1.1.1

Municipality’s Ejection Action

Assuming the theater group has no property interest in the theater building, the municipality will be able to eject the group. Although the municipality does not have current possession of the theater because the theater group is occupying the space, the municipality owns the theater and that ownership includes the right to present possession of premises not otherwise subject to a property interest, such as a lease.212 The municipality’s ownership also includes the right to exclude the theater group—non-owners—from the property.213 Without a property interest (such as a lease) the theater group has no right to retain possession of the premises. For further discussion of ejectment, see Sect. X.2.1.2.3 above. The fact the non-owners are engaged in a cultural activity would not change the analysis in the U.S.

3.8.2

Variation

The variation asks under what entity form the theater group should organize to continue their operations effectively.

3.8.2.1

Use of Non-profit Corporation Entity

The theater group should organize as a non-profit corporation. As a non-profit corporation, it could file for tax-exempt status under 26 U.S.C. Section 501(c)(3). Organizations organized and operated exclusively for religious, charitable, scientific, testing for public safety, literary, or educational purposes are eligible to obtain recognition of exemption from federal income tax under Section 501(c)(3) of the

28A C.J.S. Ejectment § 8 (June 2020 Update); see also 28A C.J.S. Ejectment § 9 (June 2020 Update) (necessity of property ownership as prerequisite to ejectment action). 213 Id. 212

530

M. E. Eppinger and H. G. Robertson

Internal Revenue Code.214 The theater group can likely obtain 501(c)(3) status as an educational organization. If it obtains tax-exempt status, the theater group would not have to pay income taxes; furthermore, donors could deduct their charitable contributions to the organization on their individual income tax returns.215 Additionally, incorporating as a non-profit corporation would provide officers and directors of the theater group a degree of liability protection for their official acts.216

3.9

Climate

Diletta, Flavio, and Antonella became aware of the reality of climate change when their school teacher decided to work on reading materials that were circulated at the time of the 2015 Paris Agreement on Climate Change. Although just turned 18 years old, all the three of them took the information quite seriously and started to worry about the gloomy expectations they learned about: dangerous rise in the global temperature, water scarcity, droughts, forest fires, possible displacement of populations, etc. After the scandal involving the Popcar Corporation, concerning the manipulation of computer system for the control of emission in cars, Diletta, Flavio, and Antonella are struck by the quite feeble sanctions inflicted to the car manufacturer—not only in their jurisdiction. For this reason, Diletta, Flavio, and Antonella decide to take action in the interest of future generations. They sue their government and the global corporation Popcar.

3.9.1

Analysis of the Case

The first question asks whether the group can maintain a cause of action against the government for not sufficiently sanctioning Popcar. The second question asks whether the group can act legally against Popcar for intentionally tampering with the emission control systems.

3.9.1.1

Assumptions

None.

I.R.C. § 501 (West 2019). See IRS (2022). 216 See generally 1 Nonprofit Organizations: Law and Taxation § 4:14 (2d) (May 2020 Update) (explaining officers of nonprofit organizations may be immune from liability); see also Lynch v. Crawford, 135 N.E.3d 1037, 1044, 1045 (Mass. 2019) (holding volunteers of a nonprofit organization are not liable for harms caused by an act or omission of the volunteer on behalf of the organization unless the conduct is more blameworthy than negligence). 214 215

Assailed: The Paradoxical State of the Commons in the United States

3.9.1.2

531

Group’s Action Against the Government Standing

The group likely has standing to bring this action because standing requires the injury be concrete and particularized and actual or imminent rather than conjectural or hypothetical.217 3.9.1.2.1

Breach of Statutory Imposed Duty

The courts give substantial deference to the decisions of government agencies. In Massachusetts v. EPA, the Court held, “If EPA makes a finding of endangerment, the Clean Air Act requires the Agency to regulate emissions of the deleterious pollutant from new motor vehicles.”218 However, “Under the clear terms of the Clean Air Act, EPA can avoid taking further action only if it determines that greenhouse gases do not contribute to climate change or if it provides some reasonable explanation as to why it cannot or will not exercise its discretion to determine whether they do.”219 Under this precedent, the government would have deference to determine whether the sanctions were sufficient, and likely would prevail so long as it can justify the determination with a “reasonable explanation.”

3.9.1.3 3.9.1.3.1

Group’s Action Against Popcar Standing/Lack of Cause of Action

It is unlikely that the group, as individuals, could sustain a cause of action against Popcar due to lack of standing. Furthermore, it is not clear whether they would have a cause of action as a class. It is unclear who would make up the class (presumably the entire country). Additionally, there does not seem to be a legal theory upon which they can sustain a civil action: possibly public nuisance, although it would be difficult to demonstrate actual injury that is concrete and particularized. If the group were attempting to assert a cause of action on behalf of the environment, it is unlikely that courts would find the group has sufficient standing without a showing that the group has been economically injured by Popcar’s actions.220 However, the group might find redress by claiming a constitutional rights violation. The question does not address involvement by the government in the manipulation of computer systems by Popcar, but if it were assumed that a government body subsidized Popcar and its emissions systems, or otherwise encouraged the

U.S. Const. art. III; see generally 35A C.J.S. Federal Civil Procedure § 66 (June 2020 Update) (explaining constitutional standing for litigation). 218 Massachusetts v. E.P.A., 549 U.S. 497, 533 (2007). 219 Id. 220 See generally Sierra Club v. Morton, 405 U.S. 727 (1972) (holding an environmental organization does not have standing to file suit on behalf of an environmental resource without a showing of economic injury to the organization or its members). 217

532

M. E. Eppinger and H. G. Robertson

faulty emissions reporting, then a constitutional grievance might be available. There is support that plaintiffs may bring a challenge through an equitable action to enjoin unconstitutional official conduct if they are able to show a government agency violated their constitutional rights.221 As of this writing, there is a potentially landmark environmental case, pending remand in Federal District Court, speaking to this issue.222 The plaintiffs in Juliana, 21 citizens and an environmental organization, claim that the President, the United States, and several federal agencies have violated their constitutional rights to a “climate system capable of sustaining human life” by promoting and subsidizing the extraction and use of fossil fuels and the related rise in carbon emissions.223 Additionally, plaintiffs assert that the climate destruction alleged in the case presents a danger to the United States, and by failing to address the danger government officials and agencies are in violation of their constitutional duty.224 This case is not yet final, and has been remanded for failure to bring a justiciable claim.225 This action is a rather novel approach to climate and environmental issues in the United States, but seems to have ideological support from the courts. Circuit Judge Hurwitz has stated in the latest opinion as of this writing, “We reluctantly conclude, however, that the plaintiffs’ case must be made to the political branches or to the electorate at large, the latter of which can change the composition of the political branches through the ballot box.”226 3.9.1.3.2

The Pennsylvania Environmental Rights Amendment

In 1971, the people of Pennsylvania ratified The Environmental Rights Amendment to the Pennsylvania Constitution.227 That amendment creates individual rights in the people of the Commonwealth to clean air, pure water, and the preservation of the natural, scenic, historic, and esthetic values of the environment.228 Additionally, the amendment declares public natural resources as the common property of all the people, including future generations, and designates the Commonwealth as the trustee of these environmental resources.229 The rights granted by the Pennsylvania ERA have recently been utilized by environmental organizations and townships to challenge state legislation that

221

See Sierra Club v. Trump, 929 F.3d 670, 694, 696 (9th Cir. 2019). Juliana v. United States, 947 F.3d 1159 (9th Cir. 2020). 223 Id., 1164–65. 224 Id. 225 Id., 1175. 226 Id. 227 McKinstry Jr and Dernbach (2018), pp. 54–55 (explaining the history and use of the Pennsylvania Environmental Rights Amendment). 228 PA. Const. Art. 1, § 27. 229 Id. 222

Assailed: The Paradoxical State of the Commons in the United States

533

would potentially negatively affect the environment in Pennsylvania.230 In Pennsylvania Environmental Defense Foundation v. Commonwealth, an environmental organization brought action against the Commonwealth of Pennsylvania challenging the constitutionality of budget decisions that resulted in additional oil and gas sales in the state and a diversion of funds from environmental conservation.231 The Court held that the Pennsylvania ERA imposes duties upon the Commonwealth to prohibit the degradation and depletion of public natural resources, whether the harms result from state or private actions, and to act affirmatively via legislative action to protect the environment.232 Additionally, the Court held that directing the proceeds from oil and gas development away from environmental conservation and maintenance is a breach of fiduciary duty.233 Furthermore, the Court affirmed that laws that may unreasonably impair the right of the people to a clean environment are unconstitutional.234 Assuming the group were in a jurisdiction with a similar environmental rights amendment, it might have a successful claim against the government for breaching fiduciary duty to protect the environmental resources affected by the Popcar vehicle faulty emissions. 3.9.1.3.3

Community Action

An environmental rights amendment such as the Pennsylvania ERA, declaring environmental rights similar to political rights, is rare in U.S. law, but the spirit behind the Pennsylvania ERA is gaining traction in other jurisdictions. For example, jurisdictions across Ohio have attempted to create local environmental protections via CBRs.235 Usually, the environmental protections affect citizens of the city and/or the environmental resources in the geographic jurisdiction of the city in which a CBR is passed. In some cases (such as the failed Lake Erie Bill of Rights (LEBOR)), the environmental protections are directed at a specific natural resource rather than geographic area.236 In many cases, these movements surrounding CBRs reflect a general willingness to explore pathways that grant legal rights to nature, either granting rights to a natural resource or granting people the right to a clean environment.237 In the event the group were unable to address the harm to the environment inflicted by Popcar’s vehicles through traditional legal channels, creating a CBR or enacting CBR-like legislation might provide protections against further environmental harm.

230 See Robinson Twp., Washington Cty. v. Com., 83 A.3d 901 (2013); see also Pennsylvania Envtl. Def. Found. v. Commonwealth, 161 A.3d 911 (2017). 231 Pennsylvania Envtl. Def. Found. v. Commonwealth, 161 A.3d 911, 925 (2017). 232 Id., 933 (emphasis added). 233 Id., 934. 234 Id., 931. 235 See above Sect. 3.7.1.3 for additional explanation of CBRs. 236 See McDonough (2020), p. 148; see also Ma (2019) and Henry (2020). 237 McDonough (2020), p. 151.

534

M. E. Eppinger and H. G. Robertson

References Albers P, Kay J (2022) Sharing the land: a study in American Indian territoriality. In: Ross TE, Moore TG, King LR (eds) American Indians: a cultural geography [1987], 2nd edn. Karo Hollow Press, Southern Pines, pp 49–88. https://bit.ly/3bdpmZF Apess W (1992) Eulogy on King Philip, as pronounced at the Odeon, in Federal Street, Boston [1836]. In: O’Connell B (ed) On our own ground: the complete writings of William Apess, A Pequot. Native Americans of the Northeast: culture, history, and the contemporary. The University of Massachusetts Press, Amherst, pp 275–310. https://bit.ly/3QqE5R7 Bass P (2017) Green proprietors enter 21st century, 20 January 2017. https://bit.ly/341KZWh Bates AC (1912) Introduction. In: Bates AC (ed) Original distribution of the lands in Hartford among the Settlers [1639]. Collections of the Connecticut Historical Society, XIV. Connecticut Historical Society, Hartford, pp vii–xviii. https://bit.ly/37bixDz Blackstone W (1872) Book the second: of the rights of things: of property, in general. In: Cooley TM (ed) Commentaries on the Laws of England; In Four Books: Vol. 1. Including Books I & II, 2nd Rev. Callaghan and Company, Chicago, pp 329–337. https://bit.ly/3NaTO3I Blake R, Caddell J, Witman Daley C, Kromer J, McLaughlin I, Meehan CL (2013) Conservatorship handbook: how to use conservatorship to address blighted and abandoned property for Philadelphia’s community leaders. https://bit.ly/3HBDPe0 bridging the gap (2012) Joint use agreements: creating opportunities for physical activity. Chicago. https://bit.ly/3gGP6MD Calabresi G, Melamed AD (1972) Property rules, liability rules, and inalienability: one view of the Cathedral. Harv Law Rev 85(6):1089–1128. https://bit.ly/2DJdDOk Cohen M (2008) Philosophical tales: being an alternative history revealing the characters, the plots, and the hidden scenes that make up the true story of philosophy. Blackwell Publishing, Malden. https://perma.cc/B368-2EWV Craig RK (2007) A comparative guide to the eastern public trust doctrines: classifications of states, property rights, and state summaries. Penn State Environ Law Rev 16(1):1–113. https://bit.ly/3 O8V4FR Craig RK (2010) A comparative guide to the western states’ public trust doctrines: public values, private rights, and the evolution toward an ecological public trust. Ecol Law Q 37(1):53–197. https://bit.ly/3ObOHld Dagan H, Heller MA (2001) The liberal commons. Yale Law J 110(4):549–623. https://bit.ly/3 O67MFr Dellapenna JW (2011) The evolution of riparianism in the United States. Marquette Law Rev 95(1): 53–90. https://bit.ly/3N6neAf Deloria PJ (2004) Indians in unexpected places. Culture America. University Press of Kansas, Lawrence Demsetz H (1967) Toward a theory of property rights. Am Econ Rev 57(2):347–359. https://bit.ly/3 ms9zrB Denoon D (1979) Understanding settler societies. Aust Hist Stud 18(73):511–527. https://bit.ly/3 bdooN1 Dippie BW (1985) The Vanishing American: white attitudes and U.S. Indian Policy. [1982]. Wesleyan University Press, Middletown. https://bit.ly/3tMtjL3 DuVal K (2006) The native ground: Indians and Colonists in the heart of the continent. Early American studies. University of Pennsylvania Press, Philadelphia. https://bit.ly/3xCIWGi Elmer J (2008) On lingering and being last: race and sovereignty in the new world. Fordham University Press, New York. https://bit.ly/3QBGNDt Emerson RW (2003) Nature 1836. In: Ziff L (ed) Nature and selected essays, 3rd edn. Penguin Books, New York, pp 35–82. https://bit.ly/369KmZh Eppinger M (2015) Property and political community: democracy, oligarchy, and the case of Ukraine. George Wash Int Law Rev 47(4):825–891. https://bit.ly/3xBc00N

Assailed: The Paradoxical State of the Commons in the United States

535

Eppinger M (2018a) Cold-war commons: tragedy, critique, and the future of the illiberal problem space. Theor Inq Law 19(2):457–488. https://bit.ly/3b1llHs Eppinger ME (2018b) The challenge of the commons: beyond trespass and necessity. Am J Comp Law 66:1–29 Farr J (1986) ‘So Vile and Miserable an Estate’: the problem of Slavery in Locke’s political thought. Polit Theory 14(2):263–289. https://bit.ly/3xGfqiP Fitzpatrick JC (ed) (1933) An ordinance for ascertaining the mode of disposing of lands in the Western Territory (May 20, 1785). In Journals of the Continental Congress, 1774–1789, Volume XXVIII, 375–81. United States Government Printing Office, Washington. https://bit. ly/3N3Nnzt “Gardening Without Ownership: Gardening on Land You Don’t Own: What You Need to Know about Best Practices, Risks and Tactics”. (2022) Grounded in Philly, a Project by the Garden Justice Legal Initiative. https://bit.ly/2W72ekF Gates PW, Swenson RW (1968) History of public land law development. Public Land Law Review Commission. US Government Printing Office, Washington, DC. https://bit.ly/3zMe6xB Greer A (2012) Commons and enclosure in the colonization of North America. Am Hist Rev 117(2):365–386. https://bit.ly/2PxjNYx Grinnell JB (1891) Men and events of forty years: autobiographical reminiscences of an active career from 1850 to 1890. D Lothrop Company, Boston. https://bit.ly/3Na9WT8 Guissé EH (2005) Realization of the right to drinking water and sanitation: report of the Special Rapporteur. New York. https://bit.ly/3zQeBXy Hardin G (1968) The tragedy of the commons. Science 162(3859):1243–1248. https://bit.ly/2 DCniWO Henderson WC, Ben-David D (1998) Protecting Florida’s natural resources. Florida Bar J 72(9):22. https://bit.ly/3mZ5bBl Henry T (2020) City quietly drops appeal of Lake Erie Bill of Rights Ruling. The Blade, 11 May 2020. https://bit.ly/2W6OpCH History of RTC and the Rail-Trail Movement (2022) Rails-to-trails conservancy. https://bit.ly/3a4 6Tfp Holliday W (2012) ‘The Answer to Criminal Aggression Is Retaliation’: stand-your-ground laws and the liberalization of self-defense. Univ Toledo Law Rev 43(2):407–436 IRS (2022) Charitable contribution deductions. 16 June 2022. https://bit.ly/3mf7nBI jessie little doe baird (2022) Mashpee Wampanoag Timeline. Mashpee Wampanoag Tribe. https:// bit.ly/373cRLJ Knight L (2003) In: Hartl G (ed) The right to water. Geneva. https://bit.ly/3xHYTuy Kopaskie A (2016) Public vs Private: a national overview of water systems. Environmental Finance Blog, UNC School of Government. 19 October 2016. https://unc.live/344WQTC Lakhani N (2020) Millions of Americans can’t afford water, as bills rise 80% in a decade: analysis of U.S. cities shows emergency on affordability of running water amid COVID-19 pandemic. Consumer Reports. 10 July 2020. https://bit.ly/3ncLyUQ LeFevre TA (2015) Settler colonialism. Oxford bibliographies. 29 May 2015. https://bit.ly/3ov8P4 o Leopold A (1984) In: Leopold L (ed) A Sand County Almanac with essays on conservation from Round River. [1949]. Ballantine Books, New York. https://bit.ly/3Ojpa9C Locke J (2022) Of property. The Second Treatise of Civil Government (1690). https://bit.ly/3oxA2 DE Ma A (2019) Toledo voters approve Lake Erie Bill of Rights. WOSU Public Media, 27 February 2019. https://bit.ly/3a3mBat Mack EA, Wrase S (2017) A burgeoning crisis? A nationwide assessment of the geography of water affordability in the United States. PLoS One 12(1) https://bit.ly/382BuHM McDonough C (2020) Will the river ever get a chance to speak? Standing up for the legal rights of nature. Villanova Environ Law J 31(1):143–164. https://bit.ly/3oHZw1i

536

M. E. Eppinger and H. G. Robertson

McKinstry RB Jr, Dernbach JC (2018) Applying the Pennsylvania environmental rights amendment meaningfully to climate disruption. Mich J Environ Adm Law 8(1):49–114. https://bit.ly/3 zOBBpy Merrill TW, Smith HE (2012) Property: principles and policies. University casebook, 2nd edn. Foundation Press, New York Mitchell Hamline School of Law (2017) Community gardening: policy reference guide. St Paul. https://bit.ly/3oMMHTA Morantz T (1986) Historical perspectives on family hunting territories in Eastern James Bay. Anthropologica 28(1/2):64–91. https://bit.ly/3zOcTG4 Mualam N, Sotto D (2020) From progressive property to progressive cities: can socially sustainable interpretations of property contribute toward just and inclusive city-planning? Global lessons. Sustainability 12(11):1–29. https://bit.ly/3y4mN4X Muir J (1981) Our national parks [1901]. The University of Wisconsin Press, Madison. https://bit. ly/2SngWDo National Congress of American Indians (2020) Tribal nations and the United States: an introduction. Washington, DC. https://bit.ly/3gvwqPG Nicoll F (2004) Reconciliation in and out of perspective: white knowing, seeing, curating and being at home in and against indigenous sovereignty. In: Moreton-Robinson A (ed) Whitening race: essays in social and cultural criticism. Aboriginal Studies Press, Canberra, pp 17–31. https://bit. ly/3Ot0hbn O’Brien JM (2010) Firsting and lasting: writing Indians out of existence in New England. Indigenous Americas. University of Minnesota Press, Minneapolis. https://bit.ly/3HLgfM0 O’Connell PM, Ruthbart B (2016) Lucas Museum drops plan to build in Chicago, 24 June 2016. https://bit.ly/3b3hNEC Olson M (1998) The logic of collective action: public goods and the theory of groups. [1965], Harvard Economic Series. Harvard University Press, Cambridge. https://bit.ly/3Qy56lx Ostrom E (2008) Governing the commons: the evolution of institutions for collective action. [1990]. Cambridge University Press, Cambridge. https://bit.ly/306N981 Rifkin M (2014) Settler common sense: queerness and everyday colonialism in the American renaissance. University of Minnesota Press, Minneapolis. https://bit.ly/3y8jwSp Robertson HG (2011) Public access to private land for walking: environmental and individual responsibility as rationale for limiting the right to exclude. Georgetown Int Environ Law Rev 23(2):211–262. https://bit.ly/3QKnQi3 Robertson HG (2016) When states’ legislation and constitutions collide with angry locals: shale oil and gas development and its many masters. William & Mary Environ Law Policy Rev 41(1): 55–149. https://bit.ly/3Opax4y Robinson NA (2017) Environmental human rights in New York’s constitution. N Y State Bar Assoc J 89(8):12–17. https://bit.ly/3zKD1l6 Rose C (1986) The comedy of the commons: custom, commerce, and inherently public property. Univ Chic Law Rev 53(3):711–781. https://bit.ly/37ZoUIf Sax JL (1970) The public trust doctrine in natural resource law: effective judicial intervention. Mich Law Rev 68(3):471–566. https://bit.ly/2F8xpUa Sexton J (2001) ‘Not a Park or Mere Pleasure Ground’: a case study of the New Haven Green. TownGreens.com and Connecticut Trust for Historic Preservation, Hamden CT. https://bit.ly/3 qIViIB Sustainable Economies Law Center (2010) Sample agreement to use property for food garden. UrbanAgLaw.com, Oakland. https://bit.ly/2W7BKj0 Thoreau HD (1948) Walden; or, life in the woods [1854]. Holt, Rinehart and Winston, New York. https://bit.ly/3tIJUzl Trumbull JH (1850) Order of General Court, Feb. 15th, 1643. In: The Public Records of the Colony of Connecticut, Prior to the Union with New Haven Colony, May, 1665, 100–01. Brown & Parsons, Hartford. https://bit.ly/3O8ItCJ

Assailed: The Paradoxical State of the Commons in the United States

537

Tully J (1993) An approach to political philosophy: Locke in contexts. In: Skinner Q (ed) Ideas in context. Cambridge University Press, Cambridge United Nations Committee on Economic, Social and Cultural Rights (2003) Substantive issues arising in the implementation of the International Covenant on Economic, Social and Cultural Rights: general comment no. 15: The Right to Water . . . Geneva. https://bit.ly/2XeMdsp United Nations General Assembly (2000) Resolution adopted by the General Assembly: 54/175. The right to development. United Nations, New York. https://bit.ly/3zZCVWT Watkins K (2006) In: Ross-Larson B, de Coquereaumont M, Trott C (eds) Human Development Report 2006: beyond scarcity: power, poverty and the global water crisis, New York. https://bit. ly/3bdEhD0 Wolfe P (1999) Settler colonialism and the transformation of anthropology: the politics and poetics of an ethnographic event. Writing past colonialism. Cassell, London Wolfe P (2006) Settler colonialism and the elimination of the native. J Genocide Res 8(4):387–409. https://bit.ly/2L87wWz