Land Use Restrictions in Ethiopia (a brief analysis)
Land Use Restrictions
Land use control refers to the body of laws and regulations which limits the use rights of a land and a building. These laws can be found in the civil code itself and in different other legislations such as urban planning, building legislation, forestry, water laws, and environmental laws and so on. Except the nuisance law in the civil code, the other limitations are not well developed in Ethiopia. The basic difference between these types of laws and expropriation is that in case of expropriation the property shall be taken wholly or partially, while in the case of controlling laws, they simply limit the owner’s use right while leaving the corpus in the hand of the owner/possessor. In the following we shall highlight some of those limitations.
How can compulsory purchase and restrictions on land use be justified?
We may begin by briefly considering why the law makes it possible in certain cases to regulate land use and to acquire land and property rights by compulsory purchase (expropriation). Cannot property owners settle these matters among themselves through voluntary agreements in “the market?”
Heilbrum indicates two central criteria to be taken into account in decisions concerning land use:
Efficiency and equity are two of the general criteria to be applied in comparing alternative (economic) policies. To the economist, efficiency means the most productive use of resources to satisfy competing material wants. The term equity in economics usually refers to fairness in the distribution of income or wealth, or more broadly, “welfare.”
There is no doubt that in many respects that market operates quite excellently, but the system has shortcomings connected with both efficiency and equity. In order for the market to function efficiently, certain conditions have to be satisfied. In reality, unfortunately, they are not, and instead we have a number of market failures.
- The existence of limited competition plays an important role in the case of real property and land use, since each piece of land is unique. In principle, every property owner is monopolist.
- Some goods, termed public goods, will not be supplied by the market, or if possible, will not be supplied in sufficient quantity. This problem refers, for example, to the provision of roads, recreational areas, water supply, sewerage facilities, street lightning etc.
- There are many cases where we affect other individuals without having to pay for causing to pay for causing negative effects, or getting paid for positive effects, through a market transaction. A negative externality can, for example, take the form of pollution, noise or smell from the commissioning of a factory. There are the wider effects of the land use, effects which are not reflected in the market price and cost of the development. Externalities are sometimes referred to as spill-over or neghbourhood effects and in the context of land use typically include visual intrusion, increased traffic, pedestrian and resident inconvenience and congestion of existing public facilities.
These market failure, then, mean that the market cannot, unaided, guarantee the efficient management of resources. In other words, they justify public intervention with a view to correcting malfunctions of the market and to co-ordinate land-use activities.
In addition to the market not always operating with total economic efficiency, it is a well-known fact that the market does not necessarily lead to a fair distribution of wealth, income, land etc. among citizens in a society. This fact can justify public intervention with a view to reallocating resources between people e.g. in order to protect “weaker interests.”
Nuisance is an activity that arises from unreasonable, unwarranted or unlawful use by a person of his on property. It is mostly related with the abuse of right of an immovable. The lists of activities that can cause nuisance are not exhaustive. This type of activity is prohibited by many laws including our civil code. Hence, as one form of restrictions owners of an immovable, mostly building, may not use their property in a way that disturbs their neighbors. This principle is also included in our civil code under article 1225:
Art. 1225. - Abuse of ownership. - 1. Principle
(1) The owner shall not cause nuisance or damage to his neighbor.
(2) He shall not cause smoke, soot, unpleasant smells, noise or vibrations in excess of good neighbourly behaviour.
(3) Regard shall be had to local custom, the position of the lands and the nature thereof.
Can an owner of a building change the plan of the building? Can he build a new building on the land leased or demolished it whenever he wishes it? A study of planning and building legislations of different countries of course reveal some difference between them. One fundamental principle, however, is distinguishable, including Ethiopia. A change the use of such building requires a permit. Basically change can be divided in to three categories: construction of new building, work on existing building, and demolition of the building. This means use of land d building becomes under extensive official control.
At Federal level a proclamation that provides for urban plans has been adopted under Proc. No. 574/2008 which governs the above kind of regulations. Among others it empowers municipalities to control land use in urban areas. According to article 25 of the proclamation, “no development activity may be carried out in an urban center without a prior development authorization.” In this case the word “development” is defined as, “carrying out of building, engineering works, mining or other operations under the ground, or the making of any substantial change in the life of any structure or neighborhood (Art. 24)”
The above article hence includes the two aspects, i.e., constructing a new construction and making a change on it. So as you may know, people after getting a plot of land must get a building permission to construct a new building. Since, the law also provide that urban plans must contain rules about zoning, height of building, housing typology etc (art.11(3)) owner of a house may not the type and design of the house in a way that violates the planning laws, and as a result owner must secure prior permit.
The other point is that owner of a building may not demolish it with out a permission as envisaged under article 32 of the proclamation.
Other legislation which relate to environment ( proc. No. 300/2002), provides different restriction on property owners concerning management and release of dangerous and hazardous activities that may damage the environment. It among others prohibits people from emitting or releasing, toxic substances, chemical, or radioactive substance from their property that harms human health and wellbeing, the biota and the aesthetic value of nature.
Expropriation is another form of restriction on land owners or holders. Expropriation is a means of land acquisition for the state. It is forced taking of land from the owner against his wish but on payment of fair compensation. This is an inherent power of the state which was recognized from time immemorial. It goes even to the roman and biblical periods where states used to take private land for public purpose development activities. The issue of expropriation was formerly treated in the civil code, but now there is a new proclamation No. 455/2005 and an implementation regulation No.135/2007 at federal level and different other regulations at state level. The subject is a wider one, and here we shall discuss it only briefly so as to give an insight to the subject.
Assume that you have a house in one area but for some reason that you have no way out to the next street? Or that your house must be connected to the water pipeline or the sewerage service? What will you do? Such related problems are solved by the concept of servitude. The solution is that the neighboring land must provide you or your house with a right of way, a right of passing over it the pipelines or the sewerage tubes. Servitude is defined as “a charge encumbering a land (servient tenement) for the benefit of another land (the dominant tenement.)” And the type of obligation or encumbrance made on the burdened land, that is the servient land is “the obligation to submit to the commission of some acts by the owner of the dominant tenement or to refrain from exercising some rights inherent in ownership.” We can see more on article 1359 of the civil code.
This means the servient land is burdened with some obligation for the purpose of the advantage of the dominant tenement. This type of right is right in rem or real rights which are related to the properties. Hence, servitude may only accessorily cast upon the servient owner the burden to commit any act (1360). The burden of servitude shall transfer with the land irrespective of the change of the owner.