Case And Strategies For Property

Introduction

While defining a compulsory purchase order (CPO), (Fibreboard Corp. v. Labor Board, 1964) refers to when the government or other utility organizations in particular circumstances enjoy a given Statutory Right with regard to purchasing a property as well as having right over it. Exercising this kinds of rights require that the body meet a number of set criteria as defined by statute, which in this case is proving that the acquisition in is made in the public interest. While seeking acquisition, the applicant will only have the mandate of acquiring the property; land, till that time when the right actions have been embraced in confirming the CPO. Furthermore, the applicant is expected to come into an agreement with the land owner rather than seeking the compulsion route. On that note, this paper seeks to analyze ABC Limited’s case, and offer the legal advice on how the organization can acquire the property.

ABC Limited is one of the acquiring authorities in the town. The organization is looking to redevelop and generate a part of the vacant mixed-use estate in the town center. The highly anticipated facility contains both residential and small business units. In order to realize the objective, the organization has to make use of compulsory purchase power. However, the use of compulsory purchase power comes with a number of legal implications, hence the need for ABC Limited to seek legal advice in acquiring the property.

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Purchase Notice and GVO

In Fibreboard Corp. v. Labor Board, the Supreme Court ruled that with compulsory purchase powers, any acquiring authority has the mandate of purchasing land. In this case, the land has to be meant for undertaking such functions that are defined or rather emerging in the public interest. A good example in explaining the above assertion is the case of constructing a new road; considering that a road construction comes with the public’s interest. In this case, the owners of the land that is placed under acquisition through compulsory purchase are always entitled to reasonable or the right amount of compensation.

There are a number of sources through which the purchasing power comes from. The most common source is the compulsory purchase order, which is defined by a particular Act of Parliament. The other common source is an order, which is always given under the Transport and Works Act 1992. Despite the various sources, the actual procedure for the acquisition process is taken care of under the Acquisition of Land Act 1981. In order to facilitate the process in the various sectors of the economy, specific authorities have been established, among them including Local Authorities and Regional Development Authorities, among others.

In Times-Picayune Publishing Co. v. The United States, the Court of Appeal ruled that in the process of getting the property, the first step by the acquiring authority should be making direct contact with whoever owns the land. It is in this process that they get into negotiations with the property owner, to have the acquisition taking place under an agreement. Almost a similar procedure has to take place, where the property owner if he agrees to sell out the land or building, should contact the respective acquiring authority. By any chance, the acquiring authority fails to reach an agreement to buy the property or the entire process turns up to be impractical, then the next move should be the compulsory purchase.

In County of Haw. v. C & J Coupe Family Partner, the bench ruled that details of purchase must be well illustrated and defined in the compulsory purchase order. Other relevant information to be included in the document is the Act that defines the process of giving powers. The above assertions are further confirmed in Fibreboard Corp. v. Labor Board, where the jury added that a schedule of the land or the building that is yet to be acquired must be included in the documentation. Also, a map of the land must be provided, and a list of individuals who have rights over the land. In all cases, the agreement and documentation have to be accompanied by a statement giving the reasons or justifications for the order.

In Fibreboard Corp. v. Labor Board, the High Court ruled that it is the responsibility of the acquiring authority to publish a notice, where it gives information pertaining to the details of the order. The notice has to be made two weeks prior to the submission of the compulsory purchase order to the required department for relevant confirmation (Kelo v. New London, 2005) Furthermore, the minister will have to serve a notice to the respective individuals enjoying rights over the land. The notice should extend to those who may see the value of their land reduced, primarily due to the order.

In Fibreboard Corp. v. Labor Board, the court put it clear that after following the above steps, it will be the responsibility of the minister to take the order into consideration. Along with any objections that might come into play, the minister may make the decision on the necessity of the public inquiry. Furthermore, alternative objections might be taken into consideration by embracing a written representations procedure. In Zenith Radio Corp. v. Hazeltine Research, Inc, the High Court ruled that an inspector appointed by the minister in charge will have to come up with a report on the same. This will be followed by the minister making a decision on whether to confirm, undertake necessary modification or rather reject the order.

In such a case where the land has been confirmed, there are a number of ways through which the acquiring property can embrace in getting the property. The first one is an agreement. In Times-Picayune Publishing Co. v. The United States, the court defines an agreement as an understanding as well as a statement of intent that has been made between two or more parties. In this case, the produced statement of intent has undergone a detailed negotiation, with the respective party’s rights and responsibilities defined in detail.

Legal enforceability of a given agreement relies upon its type and form (County of Haw. v. C & J Coupe Family Ptner, 2008). Where a non-binding agreement is produced, the parties may go the oral way or come up with documentation of the same as well. This can also encompass a portion of the unspoken agreement, with a lot of dependence on the understanding created between the involving parties that they will not go contrary to the agreement. In the case of a binding agreement, the parties come up with what jury in Prima Paint Corp. v. Flood & Conklin Mfg refers to as a contract. With contracts in place, they establish rights and the relevant obligations that the respective parties will have to adhere to.

In Kelo v. New London, the court ruled that the process of executing a contract may be done under a seal. This is where the parties taking part in the contract and those that are witnessing the same taking place should go ahead and give their respective signatures; sign. The other alternative is having the contract underhand. The later comes into play in the case of a ‘simple contract,’ where the involved parties are the individuals signing the contract. When dealing with construction, the High Court in Fibreboard Corp. v. Labor Board explained the relevance of including ‘articles agreement.’ The essence of ‘articles agreement’ is to outline the core obligations of the respective parties who are engaging in the agreement.

Other than the agreement, there are other ways of acquiring the land, provided that the order has been confirmed. This include coming up with a notice of entry, which will facilitate the ‘smooth transition.’ The other approach is a general vesting declaration. Also, the acquiring authority may make use of the well-laid procedures for getting short tenancies. However, this is only applicable where the contract is on a short-term basis. The last approach for confirming the order is by responding to the prepared light notice.

Compensation

In County of Hawaii v. C & J Coupe Family Limited Partnership, the Supreme Court ruled that compensation is grounded on the principle of ‘equivalence.’ The Supreme Court put it clear that it is the duty or rather the obligation of the parties receiving the compensation to mitigate their losses. On the other hand, it is the duty of the business occupies to reduce any threats to profits; potential loss to profits (Times-Picayune Publishing Co. v. United States, 1953).

The value of the land will be treated as the present value which will be realized by anyone who may wish to sell or acquire it in recent times. In this case, the comparison should be done in the case of an open market, where a willing seller and buyer come into play. In County of Haw. v. C & J Coupe Family Partner, the Supreme Court ruled that increasing the value of the property due to the highly anticipated use is contrary to law. It is further against the law to increase the property’s value to an extent that it ends up being detrimental to the well-being of whoever is occupying the facility. In this case, the amount of such an increase would not be taken into account. The provision for the second rule; (ii), shall have no effect on the compensation’s assessment on matters that have no direct relation with a value of the property.

In the process of getting the property, ABC Limited should be making direct contact with whoever owns the land, as the first step by the acquiring authority, It is in this process that the firms should get into negotiations with the property owner, to have the acquisition taking place under an agreement. It is recommended that if the property owner agrees to sell out the land or building, he should contact the respective acquiring authority. By any chance, the ABC Limited fails to reach an agreement to buy the property or the entire process turns up to be impractical, then the next move should be the compulsory purchase.

ABC Limited should see that the details of purchase must be well illustrated and defined in the compulsory purchase order. Other relevant information to be included in the document is the Act that defines the process of giving powers. ABC Limited should ensure that a schedule of the property that is yet to be acquired is included in the documentation. Also, a map of the land must be provided, and a list of individuals who have rights over the land. In all cases, the agreement and documentation have to be accompanied by a statement giving the reasons or justifications for the order.

ABC Limited will go ahead and publish a notice, where it gives information pertaining to the details of the order. The notice has to be made two weeks prior to the submission of the compulsory purchase order to the required department for relevant confirmation. Furthermore, the minister will have to serve a notice to the respective individuals enjoying rights over the land. ABC Limited should go for a binding agreement; contract. Going this route will see ABC Limited establishing the rights and the relevant obligations that the respective parties will have to adhere to.

At no point should an allowance be made with regard to the acquisition being treated as a compulsory one (Zenith Radio Corp. v. Hazeltine Research, Inc, 1969). The value of the land is treated as the present value which will be realized by anyone who may wish to sell or acquire it in recent times. In this case, the comparison should be done in the case of an open market, where a willing seller and buyer come into play. The amount of increasing the value of the property due to the highly anticipated use is contrary to law, hence no need to take into account. The provision for the second rule; (ii), shall have no effect on the compensation’s assessment on matters that have no direct relation with the value of the property.

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Conclusion

ABC Limited’s desire to redevelop and generate a part of the vacant mixed-use estate in the town center is a good move. However, the firm has to adhere to the legal framework defining the acquisition process. This should extend to the compensation process, where further legal frameworks have been defined to guide the same.

Bibliography

  • County of Haw. v. C & J COUPE FAMILY PTNER., 198 P.3d 615, 119 Haw. 352, 119 Hawaii 352 (2008).
  • County of Hawaii v. C & J COUPE FAMILY LIMITED PARTNERSHIP, No. 28822 (Haw. Dec. 24, 2008).
  • Fibreboard Corp. v. Labor Board, 379 U.S. 203, 85 S. Ct. 398, 13 L. Ed. 2d 233 (1964).
  • Kelo v. New London, 545 U.S. 469, 125 S. Ct. 2655, 162 L. Ed. 2d 439 (2005).
  • Prima Paint Corp. v. Flood & Conklin Mfg. Co., 388 U.S. 395, 87 S. Ct. 1801, 18 L. Ed. 2d 1270 (1967).
  • Times-Picayune Publishing Co. v. United States, 345 U.S. 594, 73 S. Ct. 872, 97 L. Ed. 1277 (1953).
  • Zenith Radio Corp. v. Hazeltine Research, Inc., 395 U.S. 100, 89 S. Ct. 1562, 23 L. Ed. 2d 129 (1969).

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