The Contentious-Administrative Chamber of the Superior Court of Justice of the Canary Islands has partially upheld the appeal filed by a family from Tinajo, who accuses the City Council of having occupied land owned by them to build the El Cuchillo school. "Nothing simpler for an administration than to transfer to the party the information that the occupied land had passed to municipal ownership by expropriation or by whatever title," warns the ruling, dated July 29.
Thus, the TSJC obliges the City Council to respond to this family, which has been addressing the City Council for years without success. In its resolution, the TSJC recalls that when in 2012 these residents requested that an expropriation process be initiated to compensate them for the occupation of that land, what the City Council did was require them to "accredit ownership of the land subject to expropriation, topographic survey and justification of the boundaries in the requested category and the motivation for the expropriation." However, it never responded to their request. Not even to defend that the land was owned by the City Council.
Now, the Court concludes that, "regardless of whether the documentation requirement made by the City Council was not met," this did not eliminate its "obligation to give a definitive express response as to whether or not the occupation of privately owned land had occurred." Therefore, what the ruling establishes is that the City Council must now "respond" to this question and clarify whether it "occupied land belonging to others" without any type of procedure.
Silence, "difficult to understand in a state of law"
"Silence, in addition to always being an anomaly or irregularity in administrative action, difficult to understand in a state of law, entails a situation of true material defenselessness that must be corrected," the ruling warns. Thus, it orders that the City Council "examine whether the plaintiff is the owner of the land" or "whether it is owned by the City Council," and "whether said land was occupied by the public work."
In addition, it adds that if so, the City Council must compensate the plaintiff "with the amount corresponding to the value of the land occupied on the date of occupation, in accordance with the legal valuation criteria in force at that time."
Although that figure should be determined in the event that it is now proven that private land was occupied, for the time being the family has already provided an appraisal of that land, and is claiming 1,758,786 euros from the City Council. That is the amount they were asking for when they went to court, although for the time being what they have achieved is that the City Council's decision to dismiss their request due to administrative silence is annulled. In this way, the City Council must now attend to that requirement and prove whether it really owns the land or whether, on the contrary, it belongs to the plaintiff family.
"It makes no sense to expropriate land already occupied"
The new ruling also annuls a previous ruling by a Court of Las Palmas de Gran Canaria, which in September 2015 had dismissed the appeal of this family. The reason is that it considered that there had been a "procedural deviation", since before the City Council the family asked for an expropriation procedure to be initiated for that land, while in the courts it went on to claim compensation, even establishing the amount.
In this regard, the new ruling recognizes that there is "confusion" in what is being demanded, in reference to the first request they addressed to the City Council, although it insists that this "did not exclude the substantive municipal response", which "is mandatory". In addition, it underlines the peculiarity of the case itself, since "it makes no sense to initiate an expropriation file -to occupy- when it comes to land already occupied, with respect to which only the possibility of compensation remains, by substitution, since restitution is no longer possible". Therefore, in the event that the family now proves to be the owner of the land, what it orders is that the corresponding compensation be paid directly.
"What we are facing is an inactivity in the initiation of the expropriation file in relation to land occupied by a public work without any procedure," underlines the TSJC, when annulling the first ruling and partially upholding the appeal of this family.
Tinajo bought only 2,000 square meters 16 years ago
The history of these lands dates back to 1990. According to the plaintiffs, in that year they made a segregation in a farm of 20,000 square meters, selling 2,000 to the City Council of Tinajo. The lawsuit explains that "due to an error in the segregation, the deed stated that it was in Rosa del Cuchillo and not in Tablero del Cuchillo", so at the time "the correction was made before a notary", although it was never registered in the Land Registry.
Twelve years later, in 2002, the El Cuchillo school was built, which occupies a total of 7,207 square meters, including the equipment, public park and road endowment. "At no time was the corresponding expropriation procedure initiated," the family maintains, insisting that land owned by them was occupied. Now, after years without getting a response from the City Council, the Justice forces the City Council to study the case and prove whether that land really belonged to it or whether it occupied a private property without compensating the owners.