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Exploateringsavtal

An exploateringsavtal is the agreement between a Swedish municipality and a developer on carrying out a detaljplan, on land the developer already owns. Ownership is exactly what sets it apart from a markanvisning: a markanvisning covers municipal land that the municipality itself owns and later transfers, whereas an exploateringsavtal under Plan- och bygglagen, chapter 1, section 4, presupposes land that the municipality does not own.

The legal basis sits in chapter 6 of Plan- och bygglagen (2010:900). Under chapter 6, section 40, the agreement can require the developer to build or fund streets, roads, other public spaces and water and sewage facilities that are needed for the detaljplan to be carried out, plus a separate medfinansieringsersättning when a road or railway that the municipality helps fund increases the value of the property. The developer's obligation must stand in a "rimligt förhållande" (reasonable proportion) to the benefit the developer gains from the plan, a proportionality requirement similar to the Norwegian one.

Since 01/01/2015, following the bill "En enklare planprocess", an exploateringsavtal cannot require the developer to fund, in whole or in part, byggnadsverk (buildings and structures) for vård, utbildning or omsorg (health care, education or social care) that the municipality is required by law to provide, such as förskola, primary school, library and elderly care (chapter 6, section 41). As a general rule, the agreement also cannot cover measures carried out before the agreement is signed, unless it concerns a phased development or a medfinansieringsersättning (chapter 6, section 42).

An exploateringsavtal can involve more parties than the municipality and a single developer, for example when several byggherrar own land in the same plan area. The municipality can then choose a multi-party agreement covering all developers together, or separate agreements with each of them. Whatever the form, each individual developer can only be given responsibility for measures that meet the necessity and benefit test for that particular developer; they cannot be given joint and several liability for carrying out the whole detaljplan. The law also makes no distinction between a byggherre and a fastighetsägare (property owner) as the counterparty. The developer commonly owns the land as well, but what decides which rules apply is always the land ownership situation at the time of signing, not the title the counterparty holds.

A municipality that intends to enter into exploateringsavtal must adopt guidelines on the starting points and aims for such agreements, including principles for sharing costs and revenue and any medfinansieringsersättning (chapter 6, section 39). The guidelines are advisory, not binding on either the municipality or the developer, but a departure from a municipality's own guidelines can still be tested against the equal treatment principle in kommunallagen, chapter 2, section 3. If the municipality has no guidelines, that alone does not make agreements already signed invalid.

Norwegian comparison: the closest parallel is the utbyggingsavtale under chapter 17 of the Norwegian Planning and Building Act. Both countries prohibit shifting social infrastructure that the municipality has a duty to deliver anyway onto the developer, and both require that the demands stand in proportion to the benefit of the development. The difference lies in the procedural requirement. Norwegian law requires a separate predictability resolution before negotiations can start at all, and an agreement negotiated before that resolution is invalid. Sweden instead requires the municipality, if it intends to use exploateringsavtal at all, to adopt general guidelines, but these are advisory, and a missing resolution does not make signed agreements invalid, unlike the Norwegian invalidity effect.

From Placepoint's glossary: Exploateringsavtal

More information: Boverket: Exploateringsavtal, Boverket: Begränsningar avseende exploateringsavtal, Plan- och bygglagen, chapter 6

English: A development agreement between a municipality and a developer over land the developer already owns (Swedish-specific counterpart to a Norwegian utbyggingsavtale).

Common questions we come across

What is an exploateringsavtal?

An exploateringsavtal is the agreement between a municipality and a developer on carrying out a detaljplan, on land the developer already owns. It sets out who builds or funds the infrastructure the plan requires.

What is the difference between exploateringsavtal and markanvisning?

An exploateringsavtal covers land the developer already owns. A markanvisning covers municipal land that the municipality itself owns and later transfers or leases out.

What can the municipality require in an exploateringsavtal?

Building or funding of streets, roads, other public spaces and water and sewage facilities that are needed for the plan, plus medfinansieringsersättning, in reasonable proportion to the developer's benefit from the plan.

Can the municipality require the developer to pay for schools and nurseries?

No. Since 01/01/2015, an exploateringsavtal cannot require the developer to fund byggnadsverk for vård, utbildning or omsorg that the municipality is required by law to provide.

Must the municipality have guidelines for exploateringsavtal?

Yes, if it intends to enter into such agreements. The guidelines are advisory, and a missing resolution still does not make agreements already signed invalid.

How does exploateringsavtal differ from the Norwegian utbyggingsavtale?

In substance they are much alike, but Norway requires a predictability resolution before negotiations start, with invalidity as the consequence of a breach. Sweden only requires general, advisory guidelines.