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December 21, 2023

Administration’s Confiscation Of Immovabales Without Expropriating

INTRODUCTION AND NOTION OF CONFISCATION WITHOUT EXPROPRIATING 

Even though in the event that the use of all or parts of immovable property subject to private ownership is required for the public interest actions of the administration, the way, procedures, and principles to be followed regarding the legal use of the immovable are regulated within the framework of the legal legislation in some cases the administration may interfere with the right to property, which is one of the most fundamental rights of the owner of immovable, without actually complying with the aforementioned means, procedures, and principles. In this case, the administration seizes the immovable property legally or de facto without making any counter-performance regarding the price of the immovable it owns or the use of the immovable, and in this context, it may establish transactions contrary to the procedures and principles determined within the framework of the law.  

As a result of such unlawful actions of the administration and interference with the property right, certain damages may occur and the owner of the immovable can obtain the right to demand compensation these damages from the administration.

As a matter of fact, in this case, since the administration acts unilaterally without obtaining the consent of the owner while performing the public service duty that it is obliged to fulfill, it violates article 46 of the constitution which is;

“…State and public legal entities; In cases where the public interest requires, it is authorized to expropriate all or a part of the immovable properties in private property and to establish administrative servitudes on them, in accordance with the principles and procedures set forth by law, on the condition that the actual compensation is paid in advance.”.

and again, interferes fundamentally with the right to property, which is regulated as one of the most fundamental rights of individuals in Article 35 of the Constitution. In this context, to mention the administration’s seizure without expropriation the conditions listed below must be met:

  • The confiscated immovable is owned by a private legal person,
  • Seizure of immovable without expropriation actually or with a change in legal status by the administration that has the authority of expropriation, 
  • Confiscation is made for the purpose of public interest,
  • Unlawful confiscation

If these conditions are not fulfilled, it will not be possible to mention the administration’s seizure without expropriation, and in this context, it will not be possible to substitute the case for the prevention of seizure.

TYPES OF  CONFISCATION WITHOUT EXPROPRIATING 

Confiscation without expropriation, which is applied unlawfully by the administration, appears in two different ways in practice: “Actual Seizure” and “Legal Seizure” in which some fundamental qualitative differences exist in between. According to:


For the actual confiscation, the administration’s construction of a facility, a structure dedicated to its own use, on the real estate without paying any money or compensation to the owner of the immovable and without complying with the procedures and principles determined in the law, can be given as an example, while in the case of legal confiscation an example would be to intervene in the legal status of the immovable without resorting to expropriation due to the fact that the administration made changes in the zoning plans even though it did not take any actual disposition on the immovable belonging to the owner.

PREVENTION OF SEIZURE AS A RESULT OF ACTUAL SEIZURE AND DETERMINATION OF VALUATION CASES

With the filing of the action for the prevention of seizure, the owner, who is in the position of the plaintiff, in general, demands the termination of the unjust encroachment of the administration, and the litigation depends on the continuation of the unlawful actions of the administration. Because, if the actions of the administration on the immovable that it has seized in violation of the procedures and principles specified in the law, came to an end the owner can only claim the existing damages, and this will only be possible by filing a lawsuit for price. In this case, the judge may decide that the administration is liable for compensation in terms of damage to the immovable. Unlike the liability for compensation arising from the tortious act, the judge may decide on the transfer of the ownership of the immovable to the administration and its registration in the name of the administration in the land registry, in addition to the payment of the price of the real estate on the date of the lawsuit to the owner. In case the de facto dominance of the administration on the immovable that it has already unlawfully seized, the owner basically will be able to file a lawsuit for the prevention of seizure Based on Article 683 of the Turkish Civil Code which is regulated as;

“The person who owns something has the authority to use, benefit from and dispose of it as he wishes, within the limits of the legal order. The owner can file a lawsuit against the person who has his property unjustly, or he can sue for the prevention of all kinds of unjustified seizures.”

Since this case is an action for performance/case in nature, the owner may request from the administration to remove its de facto dominance over the immovable that it has seized or to make the legal seizure situation in a way that does not prevent the property right and to be fixed.

In disputes arising from zoning restrictions, which is defined as legal seizure It may also be possible to apply to the administration with a request for a change in the zoning plan, to file an action for the annulment of the zoning plan, or to file a full remedy action for the compensation of the damages caused by the administration, unlike the prevention of seizure due to actual seizure and price cases.

Since the case for the prevention of seizure without expropriation is basically a case based on the right of property, only the owner registered in the title deed can substitute this case. In case of joint ownership or co-ownership of the immovable, each of the stakeholders or one of the owners may file hereby lawsuit against the administration that carried out the confiscation without expropriation.

Another important point to be noted is that prevention of confiscation without expropriation and litigation in price cases is not subject to the statute of limitations due to confiscation without expropriation, since it is inherently interfering with the right to property which is a real right.

At this point, it is important to examine the provision of the provisional article 6 of Expropriation Law No. 2942, which will be applied exceptionally, regulated as:  

“Claims arising from the right of property due to the actual seizure without the consent of the owner, in case of demanding a price, price determination, and other transactions are carried out in accordance with the provisions of this article even if the expropriation procedures have not been completed or expropriation has never been made, to establish a right of easement, partially or completely, on the immovables or resources that were actually allocated to public service between the date of 9/10/1956 and 4/11/1983 or allocated to a need related to the public interest. In the transactions to be made pursuant to this article, first of all, the settlement procedure should be applied…”

Thus, as stated in the provision, in addition to some limitations regarding the time interval to which it will be applied, it is obligatory to resort to reconciliation as a condition of litigation. Therefore, within the scope of confiscation cases without expropriation that took place between the specified dates, it is necessary to resort to reconciliation first and to submit the claims arising from hereby reason in accordance with this provision. However, in cases of confiscation without expropriation that took place after the specified date, it should be noted that reconciliation is no longer a condition of action.

CONCLUSION

Considering that the administration’s seizure of immovables without expropriation without the permission of the owner is considered to be an interference with the property rights, which is one of the most fundamental rights and freedoms of the people, in such cases, the people whose rights are violated should defend their rights depending on the actual or legal nature of the confiscation, claim prevention of the seizure and to demand the damage on the seized property or the cost of the property through a lawsuit. In this context, they must seek their rights by staying within the framework drawn by the law and by complying with the relevant exceptional circumstances.

At this point, the administration is required to expropriate the relevant immovable by agreeing with the immovable owners or by complying with the procedures and principles regulated in the law and legal legislation regarding the immovables it requests to acquire in line with its needs and to fulfill the requirements of the public service without violating the property rights of the persons. It is necessary to bear in mind that the transactions made without complying with legal limits will be unlawful.

Best Regards,

Kılınç Law and Consulting

Authors

Eren Can Ersoy

Eren Can Ersoy

Senior Lawyer

Batu Uslu

Batu Uslu

Lawyer