Confiscation by the administration of buildings without expropriation – Real Estate

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INTRODUCTION AND CONCEPT OF CONFISCATION WITHOUT EXPROPRIATION

Even if in the event that the use of all or part of a building under private ownership is required for the public interest actions of the administration, the manner, procedures and principles to be followed concerning the use of the building are regulated within the framework of the legal legislation, in some cases the administration may interfere with the right of ownership, which is one of the most fundamental rights of the owner of a building, without respecting effectively the means, procedures and principles mentioned above. In this case, the administration seizes the building as of right or of right without making any counter-benefit as to the price of the building it owns or the use of the building, and in this context, it can establish transactions contrary to the procedures and principles determined within the framework of the law.

As a result of these illegal actions of the administration and interference with the right of property, certain damages may occur and the owner of the building may obtain the right to demand compensation for these damages from the administration.

Indeed, in this case, since the administration acts unilaterally without obtaining the consent of the owner in the exercise of the public service mission that it is required to fulfill, it violates article 46 of the constitution which is ;

“…The State and legal persons under public law; In cases where the public interest so requires, it is authorized to expropriate all or part of the buildings in the private domain and to establish administrative easements therein, in accordance with the principles and procedures laid down by law, provided that the actual compensation is paid in advance.”.

and again, fundamentally interferes 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 seizure of the administration without expropriation, the conditions listed below must be met:

  • The confiscated building belongs to a private legal entity,

  • Seizure of a building without de facto expropriation or with change of legal status by the administration which has the power of expropriation,

  • The confiscation is made for a purpose of public interest,

  • Illegal confiscation

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

TYPES OF CONFISCATION WITHOUT EXPROPRIATION

Confiscation without expropriation, which is applied illegally by the administration, appears in practice in two different forms: “effective seizure” and “legal seizure” between which there are fundamental qualitative differences. According:

For the actual confiscation, the construction by the administration of a facility, a structure dedicated to its own use, on the building without paying any sum of money or compensation to the owner of the building and without complying to the procedures and principles determined by law, can be given as an example, whereas in the event of judicial confiscation, an example would be to intervene in the legal status of the building without resorting to expropriation because the administration has made changes to the zoning plans even though it made no real provision on the building belonging to the owner.

PREVENTION OF SEIZURE FOLLOWING ACTUAL SEIZURE AND DETERMINATION OF ASSESSMENT CASES

With the introduction of the action in prevention of seizure, the owner, who is in the situation of plaintiff, in general, requests the end of the unjust encroachment of the administration, and the litigation depends on the continuation of the actions illicit from the administration. Because, if the actions of the administration on the building, which it seized in violation of the procedures and principles specified in the law, have ended, the owner can claim only the existing damage, and this will only be possible than by taking legal action for the prize. In this case, the judge may decide that the administration is liable for compensation for damage to the building. Contrary to the obligation of compensation resulting from the criminal act, the judge can decide on the transfer of the ownership of the building to the administration and its registration in the name of the administration in the land register, in addition to the payment of the price of the building on the date of the trial to the owner. In the event of de facto domination by the administration over the building which it has already illegally seized, the owner may in principle take legal action to prevent the seizure On the basis of Article 683 of the Turkish Civil Code which is regulated as follows;

“He who owns something has the power to use it, enjoy it and dispose of it as he pleases, within the limits of the legal order. The owner can take legal action against the one who unjustly holds his well, or he can sue for the prevention of all kinds of wrongful seizures.

In the case of an enforcement action, the owner can ask the administration to withdraw his de facto dominance over the building he has seized or to make the situation of seizure legal in a way that does not prevent the right of ownership. and to fix.

In disputes arising from zoning restrictions, which are defined as a judicial seizure, it may also be possible to bring an application to the administration for modification of the zoning plan, to bring an action for cancellation of the zoning plan or to lodge a complaint full right of redress for damages caused by the administration, unlike the prevention of seizure due to actual seizure and price cases.

Since the case of prevention of seizure without expropriation is essentially a case based on the right of ownership, only the owner registered in the title deed can substitute this case. In the event of joint ownership or joint ownership of the building, each of the interested parties or one of the owners may take legal action against the administration which carried out the confiscation without expropriation.

Another important point to note is that the prevention of confiscation without expropriation and the litigation in matters of price are not subject to prescription because of confiscation without expropriation, because it infringes by nature the right of property which is a real right.

At this point, it is important to consider the provision of Provisional Article 6 of Law No. 2942 on Expropriation, which will be applied exceptionally, regulated as follows:

“Claims arising from the right of ownership as a result of effective seizure without the owner’s consent, in the event of a price request, price fixing, and other transactions are executed in accordance with the provisions of this article even if the expropriation procedures have not been completed or the expropriation has never been made, to establish a right of easement, in whole or in part, on the immovables or resources which were effectively assigned to public service between the date of 9/10/1956 and 4/11/1983 or assigned to a need related to the public interest. In the operations to be carried out under this article, the settlement-delivery procedure should above all be applied…”

Thus, as stated in the provision, in addition to certain limitations regarding the time interval to which it will be applied, it is mandatory to resort to reconciliation as a condition of the dispute. Therefore, in cases of confiscation without expropriation that have taken place between the dates indicated, it is necessary to first resort to conciliation and submit the resulting claims in accordance with this provision. However, in cases of confiscation without expropriation that occurred after the date indicated, it should be noted that reconciliation is no longer a condition of action.

CONCLUSION

Considering that the seizure by the administration of buildings without expropriation without the permission of the owner is considered an interference in the right to property, which is one of the most fundamental rights and freedoms of people, in such cases, persons whose rights are violated must defend their rights according to the actual or legal nature of the confiscation, claim the prevention of seizure and claim the damage on the seized goods or the cost of the goods through a lawsuit. In this context, they must seek their rights while remaining within the framework set out by law and respecting the relevant exceptional circumstances.

At this stage, the administration is required to expropriate the building concerned by agreeing with the owners of the building or by complying with the procedures and principles governed by the law and the legislation on buildings that it request to acquire in accordance with its needs and to fulfill the requirements of the public service without infringing the property rights of persons. It is necessary to bear in mind that transactions carried out without respecting the legal limits will be illegal.

The content of this article is intended to provide a general guide on the subject. Specialist advice should be sought regarding your particular situation.

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