Who is entitled to use the land?

Recently, I had a great pleasure to participate in a forest forum, organized by NORSKOG, which was held in the House of Literature (Litteraturhuset) in Oslo. The main subject of the forum was “Who is entitled to use the land?”. Read more…

There were four main speakers at the event: Marianne Reusch (lawyer), dr Geir Stenseth (lawyer), Morten Dåsnes (general manager at Friluftsrådets landsforbund) and Yngve Holth (NORSKOG). In this post, I will briefly describe the main points of presenters.

“Outdoor life on wild roads”

The first presentation was given by Marianne Reusch, a lawyer, who was disccusing “everyman’s right” (in Norwegian: allemannsretten) and potential solutions to the cases, when “everyman’s right” leads to the overconsumption, law-breaking and even conflict of interest with landowners.

For instance, Ms Reusch (on the main photo) discussed that throwing garbage to the forest, even organic one, or cutting the Christmas tree from no one’s property, is not an “everyman’s right”. We should always keep in mind and respect landowner. Ms Resuch was talking also that it is quite common in Norway, that landowner gives permission to organized groups to use his land, for example, for fishing, horse riding or cross-country skiing (obiously very common in Norway). Nevertheless, the §11 of Friluftsloven (Law of Outdoor recreation) says that people who are entering somebody’s property should not harm or destroy it, and should respect the landowner and his property right. Ms Reusch discussed short procedure that landowners should follow. First, they should understand where the problem is (e.g overuse of property, littering, safty, conflicts of interests etc.). Then, the landowner should consider different possibilities to deal with problems that occur at his property. To such solutions, we can include, imposing fees for visitors, exclusion his land from the use or traffic regulations. Nevertheless, Ms Reusch mentioned that the best solutions consist of combinations of different techniques and should be always tailored to the specific cases.

I liked this presentation a lot, and especially the attitude of Ms Reusch towards law. She said that she treats the law as a toolbox, and we should always try to use the most proper paragraph (from the law), to solve the problem of particular case in the best possible way. Last but not least, if you like to read more about everyman’s right, you can visit the blog of Ms Reusch (in Norwegian, but you can translate it by using Google) here: allemannsretten.no

Property protection – Norway vs. international standards

Second presentation was given by dr Geir Stenseth, who was discussing few aspects of expropriation right and property leasing in the context of Norway and international environment (e.g. USA, England-Wales or Sweden).

Dr Geir Stenseth starting his presentation. Photo credit: Rafal Chudy

Expropriation is the act of a government in taking privately owned property, ostensibly to be used for purposes designed to benefit the overall public. Dr Stenseth noticed that in North America and Western Europe, the market value is the starting point regarding the compensation for expropriation. Norway belongs also to this category of countries as the compensation for expropriation is based on sales value of the property.

When I was listening the presentation of Dr Stenseth, I had in my mind the holdouts, i.e. a piece of property that did not become part of a larger real estate development because the owner either refused to sell or wanted more than the developer would pay. There are many examples of hold-outs in the United States, the United Kingdom, Germany, China, Japan, and other countries. In my opinion, the holdouts are something what really characterizes the country that respects the private property, i.e. the state cannot so simply take the property of the owner under the argument of public wealthfare creation, and lost compensation, because maybe there are other values (not only monetary) for land owners why they want to keep it (heritage, good memories etc.). For instance, in China holdouts are called “nail houses” and can be defined as homes belonging to people (sometimes called “stubborn nails”) who refuse to make room for real estate development. However, it seems that in my countries, the state has learned how to deal with such cases:

See photos below (photo credits to Wikipedia):

Dr Stenseth mentioned also § 105 of U.S. property protection law that says

“…; nor shall private property be taken for public use, without just compensation.”

However, in the same time, he described few cases where this law was neglected, e.g. read more about a case – Kelo v. City of New London. There are also examples how other states adopted the guidlines regarding the protection of property right.

For me, it was very interesting to hear about the expropriation rules in Sweden, which has changed in June 2000. The votes were 152 against 144 (“green” and “red” political parties were, of course, against). The amendment, made by Riksdag, was based on an expert review that the compensation should start from the owner’s individual valuation of the property (“individual values”), and in addition to that over should get a bonus for the enforcement aspect. In other words, in Sweden, the market value is still the reference point for replacement assessment, but on top of it, the owner gets 25 % as default bonus. Ten years later, the expert committee proposed the amendment, which defined the introduction of a principle of profit distribution, i.e. previous owner who had a business at particular property, should get an additional compensation, measured by the proportion of the new owner’s gain.

The situation in Norway is quite similar to Sweden. The compensation of the landowner for his economical lost has a long tradition, and in consequence Expropriation Law (EMK P1-1) protects all forms of property intrusion.

Because I am coming from Eastern Europe, I think that the current situation in Western Europe, Scandinavia and North America is more right, than the one in post-communistic countries, where still the property rights are often broken, and landowners are getting the compensation that is sometimes far away from the market value. Another good example for the property right violations, in my opinion, is the “mining law”. In many countries, the mining law gives the priority to the State to keep the rights over natural resources. Such situation happens in Poland or partly United States. For instance, if I bought property in Poland, and if I found the gold or oil under my own property, according to the “mining law” the gold and other resources belongs to the State. Similarily, the mining law in the United States is based on English common law. Here the landowner is likewise the owner of all raw materials to unlimited depth. However, the state still retains rights over phosphate, nitrate, potassium salts, asphalt, coal, oil shale and sulphur, and a right of appropriation (not ownership) by the state for oil and gas. On the other hand, in Great Britain and the Commonwealth the principle of mining by landowners prevails. The crown only lays claim to gold and silver reserves.

“The meaning of forest for outdoor activities”

This was the main title of the presentation given by Morten Dåsnes (general manager at Friluftsrådets landsforbund) who was discussing that the law for people to stay outdoor is equally important to the property law, and these two concepts should support each other. I liked the argument of Mr Dåsnes who said that:

“Nature is to a greater extent used as learning area and area of activity for children and adolescents.”

Therefore (my comment as I do not remember if Mr Dåsnes said it), if we restrict the outdoor activities for childreen and adults, we are losing an important component that builds our human society.

Morten Dåsnes during his presentation. Photo credit: Rafal Chudy

Moreover, Mr Dåsnes was talking about the importance of forest in people’s activities such as sport or recreation, and he pointed that the goal is to  get more and better quality of outdoor activities for all of us.

“Ownership as a starting point for wealth creation”

The last presentation during this forum was given by Mr Yngve Holth from NORSKOG, who was talking how the ownership creates the wealth. Mr Holth was explaining that a society needs to regulate property rights, and the ownership and stability are very crucial components in the investment environment. I liked his presentation a lot.

To sum up

In my opinion, such fora like the one organized by NORSKOG helps and gives landowners (including forest owners) the opportunity to discuss important issues with respect to their properties, concerns and potential solutions to problems they face. The subjects of presentations and the performance of presenters were on very high level, what made the whole forum very interesting and inspiring. Therefore, next time, I advise you to take a part in such forum in your own country, or maybe in Norway if you will be around, as you can learn a lot of. I did.

Main photo: Marianne Reusch during her presentation. The slide says “It is not an everyman ‘s right”. Photo credit: Rafal Chudy

You can find all presentations (in Norwegian) of above presenters here: Vellykket Skogforum om eiendomsrett

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