Sixty-six years after the British Mandate enacted the Land Expropriations Law in this country, the Knesset Finance Committee last week approved the second and third readings of a bill that would amend the law. There are detractors to this amendment, however, who claim it both infringes on property rights and does not rectify the state's historic injustices to land owners going back 25 years or more.
The amendment will prevent the recurrence of the type of actions reported in the first few decades of Israel's statehood, when land was expropriated for "public purposes" when in fact, in certain cases, the state built residential neighborhoods or used the land for non-public needs. In other cases the state did nothing with the land or used it for public purposes for some time, and later stopped using it - but did not return it to its owners. The land owners in those days were completely helpless vis-a-vis the government, as the law did not contain any provisions that enabled them to fight the expropriations.
Sixty-six years after the British Mandate enacted the Land Expropriations Law in this country, the Knesset Finance Committee last week approved the second and third readings of a bill that would amend the law. There are detractors to this amendment, however, who claim it both infringes on property rights and does not rectify the state's historic injustices to land owners going back 25 years or more.
The amendment will prevent the recurrence of the type of actions reported in the first few decades of Israel's statehood, when land was expropriated for "public purposes" when in fact, in certain cases, the state built residential neighborhoods or used the land for non-public needs. In other cases the state did nothing with the land or used it for public purposes for some time, and later stopped using it - but did not return it to its owners. The land owners in those days were completely helpless vis-a-vis the government, as the law did not contain any provisions that enabled them to fight the expropriations.
The most publicized cases, which triggered the drafting of the new amendment, were the expropriation of 137 dunams (1 dunam is equal to 1/4 acre) of land in Givat Olga in Hadera, 500 dunams in Pi Glilot and 150 dunams in Jerusalem's Beit Hakerem neighborhood. In all these cases the property was expropriated from private owners for "public purposes," but after it was not needed or used for those purposes, the state embarked on a move to rezone the land for construction of thousands of residential housing units, without offering any compensation whatsoever to the landowners. After this happened in the Givat Olga case, the owners petitioned the High Court of Justice to order the state to return their land.
That petition led to the formulation of the "Karsik rule" - named for Miriam Karsik, one of the petitioners - which demands that the state return land to its owners when the reason the property was originally expropriated is no longer relevant.
The court did not act in this regard, effectively halting the handling of the petition until a legislative initiative was launched on the subject. The amendment approved last week in the Knesset Finance Committee is the Knesset's response to the court's directives.
Historic injustices
The amendment appears to be a positive step toward rectifying the years of injustices caused to landowners. Nevertheless, real estate experts and lawyers who are knowledgeable about the initiative have voiced the opposite impression. Much of their outrage is due to the fact that landowners cannot sue the state for the return of land taken away from them 25 or more years ago.
"I think this is a positive expression of the Karsik rule, of preserving the connection between the expropriated land and its historic owners," says Assa Zohar, a lawyer and land appraiser. "From this perspective, there is a positive response to the court regarding the legislative amendment, but actual implementation of it will not do full justice for the landowners."
"The Knesset is not following the High Court of Justice's directive at all," counters Erez Cohen, chairman of the Land Appraisal Association. "The Karsik ruling cancelled out the [other] petitions, but called on the Knesset to legislate an amendment that would solve the problem of historic expropriations. In practice, despite restrictions that improve the British Mandate ordinance, the legislation is the opposite of what the High Court of Justice ordered - it is a draconian law, and I will not be surprised if more petitions are filed with the High Court, questioning the legality of the amendment."
"The bill in its current format will cause an injustice to the historic landowners and the erasure of the suits filed with the High Court of Justice," claims Yoram Chagbi-Chagai, who represented the Israel Bar Association's property rights committee during the deliberations of the Knesset committee on the bill.
"A panel of nine justices ruled that if a public purpose that served as the basis for the expropriation became irrelevant, the owners are eligible for the return of their land. From the court's perspective, the owner's connection with the land is permanent. The government and the Knesset Finance Committee effectively stone-walled the High Court's ruling. This is a legal scandal, inasmuch as today, land can be designated for residential construction and offered on the free market without the original owners being eligible for any payment. The state is filling its coffers at the expense of landowners who received a pittance, if anything."
Alon Samuel, the lawyer for the two petitioners in the Karsik case, also feels that although he won the battle in court, the amendment completely contradicts the spirit of its ruling.
"The Knesset Finance Committee simply hijacked the whole process," says Samuel. "Lawmakers in the previous Knesset refused to discuss the bill because they felt it was unfair and imbalanced. The previous Finance Committee told the government's representatives to come up with an amended bill with a different concept.
"The government simply transferred the same bill without rethinking the wording," continues Samuel. "The government waited for an opportune moment and in a lightening move passed the legislation ... This is won of the worst miscarriages of justice I have seen in the Israeli legal system and legislature."
Rethinking 'public purposes'
In addition to preventing landowners whose land was expropriated in the distant past from petitioning for the return of their property, the new amendment seems to give the authorities the option of expropriating even more land in the future, by expanding the term "public purposes" to include more uses than in the past. These include land designated for military bases, infrastructure facilities or religious institutions. Developing and expanding communities is another type of "public need," and obviously means benefiting residential housing projects.
"To me, this definition is an attempt to bypass the state's right to expropriate land for classic public purposes that benefit everyone, and to sneak in through the back door the authority to use private land for residential construction," says Samuel.
Legal sources note that the Knesset committee did list some reservations to the amendment: first, the landowners' option to buy the land back in certain cases; second the state would be barred from rezoning land for residential use (as it did in the past), if the reason land was expropriated passed, but would rather have to expropriate the land again, or give the owners the right of first refusal in buying the land.
"It is a pity that such an important matter is being handled as an amendment to a British Mandate ordinance from over 60 years ago. It is difficult to shake off the feeling that this is being done to evade proper review of Knesset legislation in recent years," Zohar says.
"The amendments prove that lawmakers concur that the situation today is distorted and unconstitutional," adds Chagai-Chagi, who represents the petitioners in Ramat Beit Hakerem in Jerusalem and Pi Glilot.
"If there is going to be an amendment, however, why not make it retroactive? Setting an arbitrary time constraint of 25 years is unreasonable and shows that it was carefully chosen in order to enable the state assume the ownership all lands expropriated before 1985. This is a way of trampling the public's property rights. If the bill is passed in its current format, I intend to petition [the High Court of Justice], along with lawyers representing other injured parties, on the grounds that it disproportionately harms property rights."
The bill's faults
- Land expropriated prior to 1985 will remain in the government's hands
- Landowners cannot sue for the return of their land, except in specific cases; they can purchase the property at current market prices
- Expropriation can take 17-25 years, and this period can be extended
- Expansion of communities is included in the definition of "public purposes"
- 90% of the advisory committee members are state employees
- Land with multiple owners requires the consent of 25% of them, should they seek to buy ownership rights
- Owners have a limited time to purchase their land - just 2-8 years
- If the state has plans for the land, the owners cannot get it back, unless they prove the plans will change within two years
The bill's achievements
- The state cannot rezone land if the reason for its expropriation becomes irrelevant; the state must re-expropriate the land
- If the state does not use the land within 25 years, it must be returned to its owners, outright or via resale
- The finance minister can renew his authority to permit public use of land only once
- The finance minister is not the sole authority in decisions to expropriate land; he must stick to clearly defined legal guidelines and consult professional advisors
- There is an orderly mechanism for claiming compensation, either via a land assessor or a hearing That petition led to the formulation of the "Karsik rule" - named for Miriam Karsik, one of the petitioners - which demands that the state return land to its owners when the reason the property was originally expropriated is no longer relevant.
The court did not act in this regard, effectively halting the handling of the petition until a legislative initiative was launched on the subject. The amendment approved last week in the Knesset Finance Committee is the Knesset's response to the court's directives.
Historic injustices
The amendment appears to be a positive step toward rectifying the years of injustices caused to landowners. Nevertheless, real estate experts and lawyers who are knowledgeable about the initiative have voiced the opposite impression. Much of their outrage is due to the fact that landowners cannot sue the state for the return of land taken away from them 25 or more years ago.
"I think this is a positive expression of the Karsik rule, of preserving the connection between the expropriated land and its historic owners," says Assa Zohar, a lawyer and land appraiser. "From this perspective, there is a positive response to the court regarding the legislative amendment, but actual implementation of it will not do full justice for the landowners."
"The Knesset is not following the High Court of Justice's directive at all," counters Erez Cohen, chairman of the Land Appraisal Association. "The Karsik ruling cancelled out the [other] petitions, but called on the Knesset to legislate an amendment that would solve the problem of historic expropriations. In practice, despite restrictions that improve the British Mandate ordinance, the legislation is the opposite of what the High Court of Justice ordered - it is a draconian law, and I will not be surprised if more petitions are filed with the High Court, questioning the legality of the amendment."
"The bill in its current format will cause an injustice to the historic landowners and the erasure of the suits filed with the High Court of Justice," claims Yoram Chagbi-Chagai, who represented the Israel Bar Association's property rights committee during the deliberations of the Knesset committee on the bill.
"A panel of nine justices ruled that if a public purpose that served as the basis for the expropriation became irrelevant, the owners are eligible for the return of their land. From the court's perspective, the owner's connection with the land is permanent. The government and the Knesset Finance Committee effectively stone-walled the High Court's ruling. This is a legal scandal, inasmuch as today, land can be designated for residential construction and offered on the free market without the original owners being eligible for any payment. The state is filling its coffers at the expense of landowners who received a pittance, if anything."
Alon Samuel, the lawyer for the two petitioners in the Karsik case, also feels that although he won the battle in court, the amendment completely contradicts the spirit of its ruling.
"The Knesset Finance Committee simply hijacked the whole process," says Samuel. "Lawmakers in the previous Knesset refused to discuss the bill because they felt it was unfair and imbalanced. The previous Finance Committee told the government's representatives to come up with an amended bill with a different concept.
"The government simply transferred the same bill without rethinking the wording," continues Samuel. "The government waited for an opportune moment and in a lightening move passed the legislation ... This is won of the worst miscarriages of justice I have seen in the Israeli legal system and legislature."
Rethinking 'public purposes'
In addition to preventing landowners whose land was expropriated in the distant past from petitioning for the return of their property, the new amendment seems to give the authorities the option of expropriating even more land in the future, by expanding the term "public purposes" to include more uses than in the past. These include land designated for military bases, infrastructure facilities or religious institutions. Developing and expanding communities is another type of "public need," and obviously means benefiting residential housing projects.
"To me, this definition is an attempt to bypass the state's right to expropriate land for classic public purposes that benefit everyone, and to sneak in through the back door the authority to use private land for residential construction," says Samuel.
Legal sources note that the Knesset committee did list some reservations to the amendment: first, the landowners' option to buy the land back in certain cases; second the state would be barred from rezoning land for residential use (as it did in the past), if the reason land was expropriated passed, but would rather have to expropriate the land again, or give the owners the right of first refusal in buying the land.
"It is a pity that such an important matter is being handled as an amendment to a British Mandate ordinance from over 60 years ago. It is difficult to shake off the feeling that this is being done to evade proper review of Knesset legislation in recent years," Zohar says.
"The amendments prove that lawmakers concur that the situation today is distorted and unconstitutional," adds Chagai-Chagi, who represents the petitioners in Ramat Beit Hakerem in Jerusalem and Pi Glilot.
"If there is going to be an amendment, however, why not make it retroactive? Setting an arbitrary time constraint of 25 years is unreasonable and shows that it was carefully chosen in order to enable the state assume the ownership all lands expropriated before 1985. This is a way of trampling the public's property rights. If the bill is passed in its current format, I intend to petition [the High Court of Justice], along with lawyers representing other injured parties, on the grounds that it disproportionately harms property rights."
The bill's faults
- Land expropriated prior to 1985 will remain in the government's hands
- Landowners cannot sue for the return of their land, except in specific cases; they can purchase the property at current market prices
- Expropriation can take 17-25 years, and this period can be extended
- Expansion of communities is included in the definition of "public purposes"
- 90% of the advisory committee members are state employees
- Land with multiple owners requires the consent of 25% of them, should they seek to buy ownership rights
- Owners have a limited time to purchase their land - just 2-8 years
- If the state has plans for the land, the owners cannot get it back, unless they prove the plans will change within two years
The bill's achievements
- The state cannot rezone land if the reason for its expropriation becomes irrelevant; the state must re-expropriate the land
- If the state does not use the land within 25 years, it must be returned to its owners, outright or via resale
- The finance minister can renew his authority to permit public use of land only once
- The finance minister is not the sole authority in decisions to expropriate land; he must stick to clearly defined legal guidelines and consult professional advisors
- There is an orderly mechanism for claiming compensation, either via a land assessor or a hearing
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