AS TO THE ADMISSIBILITY OF
Application No. 37612/97
by Bertil CARNÖ
against Sweden
The European Commission of Human Rights (Second Chamber) sitting in private on 9 September 1998, the following members being present:
MMJ.-C. GEUS, President
M.A. NOWICKI
G. JÖRUNDSSON
A. GÖZÜBÜYÜK
J.-C. SOYER
H. DANELIUS
MrsG.H. THUNE
MMF. MARTINEZ
I. CABRAL BARRETO
D. ŠVÁBY
P. LORENZEN
E. BIELIŪNAS
E.A. ALKEMA
A. ARABADJIEV
MsM.-T. SCHOEPFER, Secretary to the Chamber
Having regard to Article 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms;
Having regard to the application introduced on 10 April 1997 by Bertil CARNÖ against Sweden and registered on 2 September 1997 under file No. 37612/97;
Having regard to the report provided for in Rule 47 of the Rules of Procedure of the Commission;
Having deliberated;
Decides as follows:
THE FACTS
The applicant, a Swedish citizen born in 1942, is residing in Älvsjö.
The facts of the case, as submitted by the applicant, may be summarised as follows.
The applicant and his brother own real estate, Möja-Långvik 1:98, in the municipality of Värmdö. The estate covers approximately 1.2 hectares and is intended to be used for recreational purposes (fritidsfastighet). On the property two small buildings are erected, 10 m and 12 m, respectively. On 4 December 1988 the applicant bought an adjacent parcel of land belonging to the real estate Möja-Långvik 1:74. That parcel covers approximately one hectare and is a woodland site situated by a lake. The parcel is covered by coastal protection provisions (strandskyddsbestämmelser).
In March 1993 the applicant applied to the Real Estate Formation Agency (fastighetsbildningsmyndigheten) that the purchased parcel of land be merged (sammanläggas) with Möja-Långvik 1:98. Later, on 29 June 1993, the applicant altered his application and instead requested that the parcel, by a transfer of land (fastighetsreglering), be added to Möja-Långvik 1:98. On 8 December 1994 the Real Estate Formation Agency rejected the application. The Agency stated, inter alia, that the requested transfer of land would not result in an estate suitable for its purpose.
The applicant appealed against the Agency's decision to the Real Estate Court (fastighetsdomstolen) of Stockholm, claiming that the requested transfer of land be carried out. He argued, inter alia, that the transfer did not affect public access to the land, nor did it violate the applicable coastal protection provisions.
On 22 April 1996 S.-H. P. inherited the real estate Möja-Långvik 1:74. His title to the property, including the parcel bought by the applicant in 1988, was registered on 7 June 1996.
The County Administrative Board contested the applicant's appeal and, in its observations submitted to the court, the Board stated the following:
(Translation)
"Möja-Långvik 1:98 is intended to be used for recreational purposes and is tax assessed as a recreational property. The site is occupied by two buildings, according to [the applicant] 12 m and 10 m, respectively. Even if the construction possibilities are limited, the starting point must be a real estate formation for recreational purposes. The parcel of Möja-Långvik 1:74, which is situated directly west of 1:98, covers approximately one hectare and consists of woodland. The area is covered by coastal protection provisions. The requested transfer of land would result in a recreational property of approximately 3 hectares. This is inexpedient and contrary to established practice, especially when it concerns coastal protected land on Möja, where the outdoor life is important. In view of this, the requested real estate formation conflicts with Chapter 3, Section 1, of the Real Estate Formation Act [Fastighetsbildningslagen]. Furthermore, a transfer of the woodland site would also counteract the object of the coastal protection provisions and, thus, also be contrary to the provisions laid down in Chapter 3, Section 2 of the Real Estate Formation Act."
On 18 July 1996 the Real Estate Court rejected the applicant's claim. It stated, inter alia, the following:
(Translation)
"... Furthermore, having regard to the information available in the case, the court considers that the purchase in December 1988 is null and void as, according to Chapter 4, Section 7 of the Real Estate Code [Jordabalken], a purchase, having the effect of transferring a certain part of a real estate to another owner, is valid only if it is followed by a real estate formation act [fastighetsbildning] requested within six months of the date of the contract of sale.
...
The Real Estate Court concurs with the County Administrative Board's opinion that the requested real estate formation shall be considered to be for recreational purposes. Although the court disagrees with the County Administrative Board as regards the question whether the purpose of the coastal protection provisions would be frustrated if the real estate formation is granted, ... , the court concurs in the board's opinion that the transfer of land is contrary to the requirements laid down in Chapter 3, Section 1 of the Real Estate Formation Act. ..."
The applicant appealed against the decision to the Svea Court of Appeal (Svea hovrätt). He claimed that the requested land transfer had been rejected with reference to environmental protection legislation only, which according to the principle of proportionality should not be allowed to interfere with his property rights. On 20 December 1996, the Court of Appeal upheld the Real Estate Court's judgment.
The applicant appealed to the Supreme Court (Högsta domstolen). He maintained, inter alia, that a land owner's right to sell his property follows from his constitutional right to possess property. Moreover, he claimed that the principle of proportionality had not been properly applied as the only reason for refusing the transfer of land had been the application of environmental protection legislation. On 28 February 1997 the Supreme Court refused leave to appeal.
COMPLAINTS
The applicant complains that the refusal to carry out the requested real estate formation and transfer the purchased parcel of land to Möja-Långvik 1:98 violated his rights under Article 1 of Protocol No. 1 to the Convention. He claims, inter alia, that without a real estate formation act being discharged, the purchase is null and void. Thus, his right to the peaceful enjoyment of his possessions has been enshrined.
THE LAW
The applicant complains that his right to the peaceful enjoyment of his possessions has been violated as the authorities has refused to transfer the acquired parcel of land to his estate. The applicant invokes Article 1 of Protocol No. 1 to the Convention, which reads as follows:
"Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.
The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties."
The Commission notes that, according to domestic law, a purchase of a parcel of land is valid only if a real estate formation act regarding the acquired plot of land is executed. Furthermore, the validity of the purchase requires that the application for the real estate formation is submitted within six months from the date of purchase. In the present case, the applicant bought the parcel in question on 4 December 1988. He did not, however, apply for the required real estate formation within the six months limit and, thus, failed to comply with the formal requirements prescribed by law. Consequently, under domestic law, the purchase is null and void. In this connection, the Commission recalls that it is a common feature in the Contracting States that the sale of real estate is subject to formal requirements and that the existence of such requirements do not, in itself, violate Article 1 of Protocol No. 1 to the Convention.
In 1993 the applicant requested that the parcel of land belonging to Möja-Långvik 1:74 be transferred to his real estate, Möja-Långvik 1:98. In view of the above, the Commission considers that the decision did not concern the merger of two plots of land belonging to the applicant but, in fact, was an answer to the applicant's request to acquire the parcel in question. In these circumstances, the Commission finds that the present application only concerns the applicant's right to acquire property, a right which is not covered by Article 1 of Protocol No. 1. Furthermore, there is nothing to suggest that the applicant's rights to his property, i.e. the real estate Möja-Långvik 1:98, have been affected by the decision not to transfer the parcel.
It follows that the application is manifestly ill-founded within the meaning of Article 27 para. 2 of the Convention.
For these reasons, the Commission, unanimously,
DECLARES THE APPLICATION INADMISSIBLE
M.-T. SCHOEPFER J.-C. GEUS
Secretary President
to the Second Chamber of the Second Chamber
Full & Egal Universal Law Academy