The right to property, one of the most sensitive issues for property owners, is guaranteed by the Constitution. However, from time to time, as a result of projects or actions undertaken by the administration for the public good, privately owned properties may be unlawfully intervened. This situation, known legally as “non-expropriatory intervention,” can lead to serious hardship for property owners. Such cases are frequently encountered in rapidly developing cities like Antalya, where development activities are intense. This article will examine in detail the concept of non-expropriatory intervention, its legal basis, the types of lawsuits filed, and the rights of property owners, particularly in Antalya.
What is Non-Expropriatory Confiscation?
Non-expropriatory seizure refers to the actual seizure of privately owned real estate by the administration, without an expropriation decision or without complying with expropriation procedures, or the construction of a facility or structure on the property for public benefit. This situation typically occurs when areas designated for public use in zoning plans (roads, parks, schools, places of worship, etc.) are used without expropriation. This act, which constitutes a violation of property rights, constitutes a violation of the right to property guaranteed by Article 35 of the Constitution.
Historical Development and Legal Basis of Non-Expropriatory Confiscation
The concept of non-expropriatory intervention has undergone a long and complex development within the Turkish legal system. Initially shaped by the precedents of the Court of Cassation, this concept was later given a legal basis through Constitutional Court rulings and the addition of temporary articles to Law No. 2942 on Expropriation. The Constitutional Court’s decisions, in particular, that lawsuits filed for non-expropriatory intervention should be heard by the judicial courts have changed the course of such cases. Today, because non-expropriatory intervention occurs without an administrative procedure, compensation claims arising from violations of property rights fall within the jurisdiction of the judicial courts.
Types of Lawsuits That Can Be Filed for Non-Expropriatory Confiscation
In cases of non-expropriatory seizure, property owners who are victimized may pursue various legal remedies depending on the circumstances. These cases are generally heard in the Civil Courts of First Instance.
Compensation Case (Price Determination and Registration Case)
The most common consequence of non-expropriatory seizure is the unauthorized and unpaid seizure of real property. In this case, the owner may file a lawsuit for compensation, demanding that the property’s current value be determined and paid to them. This type of lawsuit is often referred to in practice as a “value determination and registration lawsuit.” The court determines the property’s true value, not as of the seizure date but as of the lawsuit date or the expert examination date, and orders the administration to pay this value to the owner. After payment, the property’s title deed is registered in the administration’s name.
Title Deed Cancellation and Registration Case
If the administration has effectively seized the property but has not yet created an irreversible situation, such as permanent construction or allocation for public use, the owner may request its return. In this case, a lawsuit for title deed cancellation and registration may be filed to prevent the property from being registered in the administration’s name and to protect the owner’s ownership rights. However, in practice, this type of lawsuit is less frequently resorted to because the administration’s actual seizure is generally permanent.
The Ecrimisil Case
A right of access is compensation due for the unjust and malicious use of a property. When an administration begins using a property without expropriation, this use constitutes an unjust occupation. In this case, the owner may retroactively claim compensation for unjust occupation from the administration for the unjust use of the property. A right of access lawsuit can generally be filed separately or in conjunction with lawsuits for compensation for non-expropriatory seizure.
Conditions and Process for Filing a Lawsuit
In order to file a lawsuit for non-expropriatory seizure, certain conditions must be met:
1. Actual Encroachment: The administration has actually encroached upon the property and allocated it for public use. This occurs through concrete actions such as constructing a road, a park, or a building on the property.
2. Absence of Expropriation Procedure: The administration has carried out this intervention without any expropriation decision or procedure.
3. Violation of Property Rights: The owner’s property right has been violated by this actual seizure.
The litigation process includes the following steps:
* Petition Preparation: A detailed petition containing all legal bases and demands is prepared by a lawyer who is an expert in the field.
* Collection of Evidence: Evidence such as land registry records, zoning plans, aerial photographs, and survey reports are collected.
* Exploration and Expert Review: The court appoints an expert to conduct an exploration of the property and determine its value and actual condition. The experts prepare an appraisal report, taking into account factors such as the property’s location, area, zoning status, and comparable values.
* Trial and Decision: The court evaluates the collected evidence and the expert report and renders a decision. This decision generally includes payment of compensation and registration of the property in the name of the administration.
Calculation of Compensation (Price Determination)
In non-expropriatory seizure cases, the accurate and equitable determination of compensation is crucial. The value of real estate is determined by analogy, applying the principles in Article 11 of the Expropriation Law. These principles are as follows:
* Type and Quality of the Real Estate: What the real estate is, such as land, field, vineyard, orchard.
* Surface area: The size of the real estate.
* Zoning Status: The property’s location on the zoning plan (residential area, commercial area, green space, etc.). Zoning plans are of great importance in cities like Antalya.
* Tax Value Assessed by Official Authorities: Property tax value.
* Value on the Date of the Case, Not on the Date of Expropriation: According to the Supreme Court precedents, the current market value on the date of the case or the date of expert examination is taken into account, not the value on the date of seizure.
* Comparable Sales: Recent sales prices of properties with similar features.
* Income Basis for Income-Generating Properties: Factors such as net income for agricultural lands and rental income for residences.
Land and plot values vary significantly across Antalya’s various regions due to the diversity of tourism, agriculture, and residential areas. Therefore, it is crucial that the expert report be based on detailed and accurate peer research.
Statute of Limitations
The statute of limitations is crucial in lawsuits filed for non-expropriatory intervention. Due to the legal nature of actual interventions, the 10-year general statute of limitations stipulated in the Code of Obligations applies to such cases. However, since the violation of property rights continues as long as the administrative intervention continues, the Court of Cassation precedents have deemed this situation to be a “continuous tort” and the statute of limitations does not apply. Therefore, the administrative authority always has the right to file a lawsuit as long as the actual intervention continues. However, a retroactive 5-year statute of limitations applies to claims for meager compensation.
Legal Support in Non-Expropriatory Confiscation Cases in Antalya
Antalya is a rapidly growing and developing city, and zoning plan changes and public projects are quite frequent. This can lead to cases of non-expropriatory seizures. If you believe your property has been unfairly seized, it’s crucial to take swift and correct action to avoid losing your rights.
Non-expropriatory seizure cases are technically and legally complex processes. The support of a lawyer specialized in real estate law is essential for determining the property’s true value, conducting the legal process thoroughly, and fully defending your rights. A qualified lawyer will guide you through every stage of the litigation process, from preparing the petition and gathering evidence to monitoring discovery and expert witnesses, ensuring the most effective defense of your rights.
Seeking professional legal advice to protect your property rights and address any grievances you may have suffered is key to turning this challenging process to your advantage. Knowing your rights and taking the right legal steps is the most effective way to address any grievances resulting from non-expropriatory seizure.