Land reorganization law: opening to confiscation in Colombia

Through Law 2044 of July 30, 2020, regulations were issued for "the regulation of land occupied by illegal human settlements". The purpose of this law is the definitive regulation of the ownership of consolidated and precarious human settlements in urban vacant properties, titled fiscal properties and those that exist in legitimate property in favor of individuals, whose occupation or possession is more than ten (10) years old.

This regulation is seriously unconstitutional because it violates Article 58 of the Political Constitution, which establishes that "[f]or reasons of public utility or social interest defined by the legislator, there may be expropriation by judicial sentence and prior indemnification. Such compensation shall be fixed in consultation with the interests of the community and the affected party (...)". The constitutional violation of the law consists, specifically, in the fact that the State may proceed with the expropriation of lands whose ownership is legitimate, but are occupied by illegal human settlements, and these have not been claimed judicially or administratively by their owners (or having claimed them, it has not been possible to acquire them), paying a compensation of 10% of the commercial value of the land (articles 8, 9 and 19). This is detrimental to the constitutional order because it rewards judicial and/or administrative delay and standardizes, in advance, a compensation value that does not take into account the circumstances of each case and does not comply with a reparatory function, and prevents judges from decreeing a fair reparatory value.

According to Ruling C-459 of 2011 of the Constitutional Court, confiscation is understood as "the arbitrary seizure of all the assets of a person by the State, without any compensation and under the guise of a sanction, when in fact it is a reprisal generally by those who hold power". This conduct is prohibited in Colombia. However, in an attempt to give a semblance of legality to this type of expropriation, compensation of 10% of the commercial value is little different from not obtaining any compensation at all. This opens the door to the confiscation of property in Colombia. To understand the real effects of this trend, it is enough to see what has happened in Venezuela, where the vice-president of the National Assembly, Iris Varela, promised that she would do everything possible so that the collegiate body she rules, which is composed of a 92% Chavista majority, "decrees the confiscation of the assets of all those who left the country".

It will now be up to the Constitutional Court to review the enforceability of this norm, which as stated, violates the clear mandate of reasonable and reparatory compensation of Article 58 of the Political Constitution.