Canceling Expropriation for Public Use – When?

In a recent judgement by the Supreme Court, the circumstances under which a court may intervene and cancel an action for expropriation were considered.

Owners of land that was expropriated by the city of Tel Aviv around 50 years ago, for the purpose of establishing kindergartens, which were never built, petitioned the court to cancel the expropriation. A previous petition, filed in 2011, was dismissed and the court ordered the city to begin construction within two years. Although the city issued a building permit, construction of the kindergartens did not start within the 2 year period, and another petition to cancel the expropriation was subsequently submitted. The district court ruled in favor of the petition and held that the fact that the city did not apply for an extension and had not even began to fence the area, justified canceling the expropriation. The city appealed to the Supreme Court.

The Supreme Court examined the various considerations, including the public interest, the period of time that had passed since the expropriation, the harm to the land owners, and the conduct of the expropriating authority.

The Public Interest: The Supreme Court ruled that the harm to public interest resulting from canceling the expropriation outweighed the harm that would be caused to the landowners for upholding it, as they had received full compensation and signed a waiver of claims, including claims for latches. Although the city did not submit an application for an extension, such failure did not justify canceling the expropriation and harming the public interest.

Latches: In order to cancel an expropriation in the case of latches, the delay must be unreasonable. The passage of time is merely one factor and not a material one, and it must be balanced against the public interest. Under the circumstances of this case, the Supreme Court held that to the extent the authority was sincerely willing to act to achieve the purpose of the expropriation, and had not abandoned such purpose, then the public interest justified permitting the authority to advance.

Accordingly, in this case, in the balance between the different considerations, the public interest prevailed and the city’s appeal was granted by a majority opinion. The Supreme Court was of the view that the city had not unreasonably delayed realizing the purpose of the expropriation and that the harm that would be caused to the public interest exponentially exceeded the harm that would be caused to the landowners by not canceling it.

In conclusion, the Israeli courts do not easily cancel an expropriation. Each case is examined on its merits and the outcome is determined in accordance with the proper balance of the foregoing considerations.