Introduction
One of the most common and complex areas of dispute between parties in tenancy relationships concerns the construction and renovation works carried out by tenants on the property they have rented. These works are sometimes carried out without the property owner’s knowledge, and at other times based on approvals granted without sufficient legal scrutiny.
The issue is not limited to the private law relationship between the parties. A renovation that contravenes planning regulations entails administrative sanctions, encumbrances on the title deed, and even the risk of criminal liability. Moreover, these consequences often affect not only the tenant who carried out the work but also the landlord, who is the owner of the property.
This article seeks to answer the following questions:
- What alterations may the tenant carry out, and what are the applicable limits?
- What are the legal consequences if a breach of planning regulations is identified?
- To whom, and to what extent, is liability attributed?
- What legal remedies are available to the property owner?
- How can risks be prevented and managed?
This article examines the subject from a comprehensive perspective within the framework of the Urban Planning Law No. 3194, the Turkish Code of Obligations, the Condominium Law and the Turkish Penal Code; it evaluates both preventive and remedial legal tools from a practical perspective.
What are the Key Concepts?
Planning infringement: Construction or renovation work carried out without a building permit or in contravention of the permit and its annexes.
Minor repairs and alterations: These refer to specific activities not subject to a building permit, as defined by a limited list under Article 59 of the Planning Areas Zoning Regulation.
Substantial alterations: These are works affecting the load-bearing structure, the external façade, the location or number of wet areas, the layout of independent units or common areas, or the projects attached to the permit; they are explicitly subject to a building permit.
Building permit: Pursuant to Article 21 of the Urban Planning Law No. 3194, this is the mandatory construction authorisation document required for all structures falling within the scope of the law (with certain exceptions).
This distinction forms the core of disputes. Which alterations fall into which category directly determines the applicable legal regime and the allocation of liability.
What Alterations Can a Tenant Carry Out Without the Landlord’s Consent?
Works falling within the scope of simple repairs and alterations that are not subject to a permit — but the tenancy agreement and the landlord’s written consent are still required.
While Article 58 of the Planning Areas Zoning Regulations stipulates a permit requirement for major repairs and alterations, Article 59 specifies, by way of a limited list, that certain activities are not subject to a permit.
Examples of works not requiring a permit:
- Surface maintenance work such as painting, whitewashing and plastering
- Replacement of doors and windows (provided the load-bearing structure is not affected)
- Installation of lightweight partition walls within interior spaces (under certain conditions)
- Minor repairs not requiring scaffolding
Works requiring a building permit (major alterations):
- Interference with the load-bearing structure
- Changes to the external façade
- Changing the location or number of wet areas (kitchen, bathroom, toilet)
- Applications requiring changes to the plans attached to the permit
Important notice: Pursuant to Article 321 of the Turkish Code of Obligations, a tenant may only carry out improvements and alterations to the leased property with the written consent of the landlord. This provision renders any alterations, even if their scope is ‘minor’, a breach of contract if they are carried out outside the terms of the tenancy agreement or protocol and exceed the limits of the written consent.
What Happens When a Planning Breach Is Detected?
Where unauthorised construction or construction contrary to the planning permission and its annexes is detected, the authority (municipality/governor’s office) shall, in accordance with Article 32 of Law No. 3194, carry out the following procedures:
- It assesses the current situation
- Seals the building and immediately halts construction
- Notifies the Land Registry to record the non-compliance in the remarks section of the title deed
- It grants the building owner a maximum of one month to rectify the non-compliance or obtain a permit
- If the non-compliance is not rectified, the structure is demolished by council decision and the costs are recovered from the building owner
With regard to administrative fines, in accordance with Article 42 of the Town Planning Act; in the case of unauthorised or non-compliant construction, separate fines are imposed for each instance of liability, including the building owner, the building contractor and the technical supervisors who failed to report the non-compliance within the prescribed period; The fine is calculated based on square metres, the building class/group, and the nature of the non-compliance; in cases of unauthorised construction, an additional rate of 180% is also applied.
Who is Liable: The Tenant or the Landlord?
Liability must be assessed separately under public law and private law.
A. Public Law (Administrative) Liability
Article 42 of the Town Planning Act provides that administrative fines shall be imposed separately on the ‘building owner, the building contractor and the relevant technical supervisors’; sanctions are not limited solely to the registered owner, but may also apply to the parties who actually carried out or undertook the works.
In practice, it is evident from Council of State case law that the administration may impose measures against the tenant company in cases where the tenant carries out unauthorised construction or extensions for their own operational needs (e.g., decisions where a construction suspension notice, demolition order, and administrative fine were imposed on the claimant company).
The owner’s administrative risk: Consequences such as the notification in the ‘declarations’ section of the land registry under Article 32 of Law No. 3194 also create a direct risk for the owner; even if the tenant is the one carrying out the act in the administrative process, effects such as a ‘notice of planning non-compliance’ may arise on the owner’s property.
B. Criminal Liability
Under Article 184 of the Turkish Penal Code (TCK) regarding the offence of “causing planning violations”, a prison sentence of 1 to 5 years is prescribed for a person who constructs or causes a building to be constructed without a building permit or in contravention of the permit.
Under Article 184 of the Turkish Penal Code, the perpetrator is “the person who constructs or commissions the building”; within this scope, the authorised representatives of the tenant company who actually commissioned or organised the alterations, as well as the contractors or subcontractors undertaking the work, may be held liable depending on their specific role and intent in the concrete case. The owner’s criminal liability, however, arises not merely from “being the owner”, but rather on the grounds of participation in the act (commissioning, knowingly approving or facilitating, etc.).
The principle of the personal nature of criminal liability and the rule that criminal sanctions cannot be imposed on legal persons are expressly provided for in Article 20 of the Turkish Penal Code. Consequently, even if the tenant is a public limited company, sanctions under the Turkish Penal Code are primarily imposed on natural person perpetrators; however, the company remains subject to administrative sanctions and continues to bear civil liability for damages.
Additional risk following sealing: The second common criminal risk in planning enforcement proceedings is the tampering with a sealed site after sealing has taken place. Article 203 of the Turkish Penal Code provides for a prison sentence of six months to three years or a fine for any person who removes a seal affixed by law or by order of a competent authority, or who acts contrary to its purpose.
Effective repentance: It is stipulated that no public prosecution shall be brought, or any pending prosecution shall be dismissed, and the consequences of a conviction shall be annulled, if a building constructed without a permit or in breach of a permit is brought into compliance with the town planning scheme and the relevant permit.
C. Liability under Private Law (Compensation)
Article 334 of the Turkish Civil Code regulates the tenant’s obligation to return the leased property upon taking possession and the liability to compensate for damages arising from use contrary to the contract.
Does the Situation Differ Under the Condominium Regime?
Yes. If the leased property is subject to a condominium regime, the balance of liability expands significantly.
Article 18 of the Condominium Law stipulates that provisions regarding the obligations of condominium owners shall also apply to tenants of independent units, and that those who fail to fulfil these obligations shall be jointly and severally liable with the condominium owners.
Article 19 of the Condominium Law mandates the preservation of the architectural integrity, aesthetics and structural soundness of the main property; prohibits unauthorised construction or repairs in common areas; and prohibits the installation or repair of facilities in independent units that could damage the main structure. This provision increases the risk of disputes and litigation involving both the tenant and the owner before the flat owners or the management, should the tenant carry out works that contravene the project or the main structure.
If the alterations affect the main structure, common areas, or the project attached to the planning permission (particularly the load-bearing system, external facade, or common areas), the owner must manage an increased risk of disputes both with other flat owners/the management and with the authorities.
Does a Business Opening and Operation Licence Replace the Need for a Renovation Permit?
No, it does not. From a legal perspective, the ‘business opening and operation licence’ constitutes the operating licence required for the business premises to commence operations; it is not designed to serve as a construction permit in place of a ‘building permit/alteration permit’.
Two critical provisions that weaken the argument that the business premises licence serves as a substitute for a renovation permit:
- 1. It is explicitly stipulated that licence procedures are finalised based on the declaration in the application form, and that “a licence issued based on the applicant’s declaration does not confer any acquired rights”. This provision legally restricts the use of the business premises licence as a “definitive and indisputable decision of compliance regarding planning/alterations”.
- 2. It is stipulated that the competent authority must carry out an on-site inspection within one month of the permit being issued; if non-compliant elements are identified during post-permit inspections, a 15-day period will be granted; if these are not rectified, the permit will be revoked and the business premises closed; furthermore, legal proceedings will be initiated if there are false or misleading declarations.
Consequently, the view that “the business premises opening and operation licence covers a simple alteration licence” does not establish a legally correct equivalence. The mere existence of a business premises licence does not reliably imply that “the alteration remains within the scope of a simple alteration” or that “compliance with planning regulations has been achieved”.
What Legal Remedies Are Available to the Property Owner?
A. Contractual Remedies
Notice and default:
Article 316 of the Turkish Code of Obligations regulates the landlord’s right to terminate the lease where the tenant breaches the obligation to use the leased property in accordance with the contract and with due care. In residential and commercial property leases, a written notice of at least 30 days’ duration and the condition that the breach be remedied are generally required.
Immediate termination:
The landlord is also granted the right to terminate the lease immediately by written notice in cases where the tenant intentionally causes serious damage to the leased property or where the breach is intolerable.
Restoration to the original condition and compensation:
Under Article 334 of the Turkish Code of Obligations, the tenant remains liable for remedying any damage arising from use in breach of the contract.
B. Administrative Measures
The property owner may resort to the following administrative measures:
- Submitting a planning enforcement complaint to the local council/county council
- Application for the removal of the annotation regarding non-compliance from the land registry
- Monitoring of construction suspension and demolition orders
- Participating as a party in administrative fine proceedings
C. Preventive Contractual Measures
Protective clauses added by property owners to contracts in practice:
- A clause requiring the landlord’s written consent for alterations
- Liability and control protocol (consent form)
- Appointment of a technical inspector (supervisor) during the renovation process
- A indemnity undertaking stating that any planning penalties shall be borne by the tenant
- Obligation to notify immediately in the event the scope of the alterations is rejected by the local authority
What Steps Should the Property Owner Take?
A practical roadmap for a property owner who has become aware of a planning violation:
- Identification and documentation: Document the scope of the renovation, the permit status and correspondence with the local authority.
- Written notice: Send the tenant a written notice, duly executed by a notary in accordance with Article 316 of the Turkish Code of Obligations; grant a period for rectifying the non-compliance.
- Application for administrative inspection: If necessary, lodge a formal complaint with the local authority and request an administrative inspection.
- Termination if the deadline is not met: If the non-compliance is not rectified within the notice period, terminate the tenancy agreement under Article 316 of the Turkish Code of Obligations and file an eviction claim.
- Restoration to original condition and compensation: Upon eviction of the premises, demand that the parts in breach of planning regulations be restored to their original condition and that compensation be paid for the damage incurred.
- If there is a condominium: Act in coordination with the management and other co-owners; exercise your rights under Articles 18–19 of the Condominium Law.
When Does the Landlord’s Own Risk Increase?
The property owner may also face liability in the following circumstances:
- Under Article 32 of the Planning and Building Act, a declaration made in the land registry’s remarks section may result in consequences such as a ‘planning non-compliance note’ on the property, even if the action was taken by the tenant.
- A property owner who knowingly approves or facilitates alterations may face allegations of complicity in the offence under Article 184 of the Turkish Penal Code.
- In the context of condominium ownership, due to the provisions on joint and several liability, the property owner may be made a defendant in a lawsuit by other co-owners or the management under Article 18 of the Condominium Law.
For this reason, failing to take action upon becoming aware of the situation and remaining silent constitutes a significant legal risk for the property owner.
Conclusion
Tenants’ construction and renovation activities that contravene planning regulations constitute not merely a contractual breach for property owners; they form a multi-layered risk area intertwined with administrative, criminal and civil law dimensions.
The key characteristics of this risk are as follows:
- Even if the planning violation is committed by the tenant, consequences such as the entry of a note in the title deed’s remarks section directly affect the property owner’s immovable property.
- Remaining silent or responding too late may expose the property owner to both administrative and potential criminal liability.
- Under the condominium regime, the risk is further exacerbated by joint and several liability.
- Documents such as business premises licences do not serve as substitutes for building permits or alteration permits; relying on this argument does not provide a legally sound basis.
The three most critical takeaways for property owners:
- Protective clauses must be included at the contractual stage; a renovation consent form and a liability undertaking should be made standard practice.
- The documentation and notice process must be initiated as soon as a breach is discovered; the waiting period should be shortened.
- Administrative and judicial processes must be conducted in parallel; monitoring the local authority’s inspection process must not be neglected.
The timely and appropriate management of legal processes ensures that property owners can both protect their property rights and remain in a secure position against third-party risks.
Yours faithfully,
Frequently Asked Questions (FAQ)
Q: What alterations is the tenant legally permitted to carry out?
A: Works falling within the scope of ‘minor repairs and alterations’, as specified by way of an exhaustive list in Article 59 of the Planning Areas Zoning Regulation, are not subject to a planning permission. However, in accordance with Article 321 of the Turkish Code of Obligations, even such works must not be carried out without the landlord’s written consent.
Q: Does the local authority impose the fine on the property owner or the tenant?
A: Article 42 of the Planning Act provides that administrative fines shall be imposed separately on the building owner, the building contractor and the technical supervisors; the tenant who actually carried out the work may also be held directly liable. However, consequences such as a notification in the land registry declaration section also affect the owner’s property.
Q: Can a tenant who has obtained a business premises licence prove that the premises comply with planning regulations?
A: No. A business opening and operating licence is a permit relating to the business’s operations and does not replace a building permit; moreover, as it is issued on the basis of a declaration, it does not create a vested right and may be revoked at a later date.
Q: How much notice must the landlord give for termination?
A: In residential and commercial property leases, a written notice of at least 30 days is generally required. However, the right to terminate the lease immediately is also provided for in cases such as the tenant causing deliberate and serious damage to the property or where the breach of contract is intolerable.
Q: What should the landlord do if they learn that the tenant intends to carry out alterations?
A: Firstly, the scope of the work must be assessed, the necessary permits must be requested, and if the alterations require planning permission, it must be determined whether the landlord’s written consent has been obtained. If there is a breach, a notarial notice must be sent without delay; the matter must be referred to the local authority for inspection, and preparations must be made for the termination and eviction process where necessary.
Q: Does the property owner bear no responsibility at all?
A: They may not; however, knowingly approving or supporting the alterations, or failing to take action upon learning of them, may expose the property owner to administrative and even criminal liability. In particular, the entry of a note regarding planning non-compliance in the title deed’s declarations section constitutes a direct consequence for the owner.
Q: In a block of flats, can the property owner also be held liable alongside the tenant?
A: Yes. Under Article 18 of the Condominium Law, tenants are subject to the obligations of the flat owners, and those who fail to fulfil these obligations are jointly and severally liable with the flat owners. In cases where alterations cause damage to common areas or the main structure, the property owner may also become a party to a dispute with the management or other flat owners.
Q: Does unauthorised renovation lead to criminal consequences?
A: Yes. Under Article 184 of the Turkish Penal Code (TCK), a person who constructs or commissions the construction of a building without a permit or in contravention of a permit faces a prison sentence of 1 to 5 years. Criminal liability is personal under Article 20 of the TCK; the natural person representatives of a tenant company may be prosecuted under this provision.
