Deficiencia de la facultad expropiatoria estatal y su vulneración al derecho a la propiedad.

Abstract

As background, the legal regulations related to expropriation were analyzed, determining the existence of shortcomings in terms of fair compensation to the owner of the expropriated property that caused property right violation and affects human dignity. The object has been verified to analyze Ecuador´s expropriation procedure in relation to property right violation and fair price compensation. The qualitative methodology has been used to describe the expropriation process related to fundamental property rights, as well as the analytical synthetic, logical, exegetical, and historical methods. Also, an analysis of Ecuadorian expropriation system and the fair price quantification established by Law has been conducted, where the only way to determine the fair price of an expropriated property shall be the cadastral appraisal, not by the commercial or current market value. Nevertheless, the administrative and judicial processes have shown that, despite the fact that public institutions and judges must consider the cadastral value as the sole parameter to determine a property price, as stated by law, the cadastral value doesn’t reflect an appropriate and adequate reference for this value, since it doesn’t reflect its current and updated appraisal and doesn’t consider damages, prejudices and other legal aspects that can also affect the value of an expropriated property. In conclusion, there are several administrative process and judicial sentences that show that the cadastral value should not be considered as the only parameter to set the fair price as it does not reflect several factors that could influence a property value, extent of being considered unconstitutional or illegal, jeopardizing the owner of this property true time and could even be considered a confiscation because the property it is not acquired at a fair Price.