TurkishLEGAL LEGISLATION REGARDING COLLECTION
Amendments to the Soil Conservation and Land Use Law No. 5403, the Agricultural Reform Law on Land Arrangement in Irrigation Areas No. 3083, the Law No. 7139 on the Organization and Duties of the General Directorate of State Hydraulic Works and Certain Laws and the Decree Law on the Organization and Duties of the Ministry of Food, Agriculture and Livestock. These are the Laws and Regulations Concerning Article 17 titled Land Consolidation and Distribution, which was previously included in the Soil Conservation and Land Use Law No. 5403, was canceled by Article 41 of the Law No. 7139 dated 19.04.2018.
Recently, administrations have been acting contrary to the right of private property protected by the Constitution by perverting the procedure and allocating privately owned lands, which will be expropriated by paying a fee, to themselves through free consolidation. My purpose in writing this article is that this method has become frequently used lately and land owners are victimized.
AGRICULTURAL LAND DEFINITION
According to the Soil Conservation and Land Use Law No. 5403, agricultural land: It is defined as land whose soil, topography and climatic characteristics are suitable for agricultural production, which are currently or are suitable for agricultural production, or which can be transformed into suitable for agricultural production by zoning, restoration and reclamation.
Consolidation is stated in the 1st article titled Purpose of the Agricultural Reform Law on Land Arrangement in Irrigation Areas No. 3083: “The purpose of this Law is in irrigation areas and areas deemed necessary by the President; It is stated that “the consolidation of agricultural lands, which are fragmented in a way that does not allow economic production, by expanding them when necessary and within the scope of possibilities, and to prevent the fragmentation and shrinkage of agricultural land to the extent that it is not sufficient to provide for the family’s livelihood and to utilize the family workforce.”
Agricultural Land: These are lands that are outside the forest boundaries, where agricultural production is carried out, used as meadows, pastures, summer pastures and wintering grounds, allocated to one of the ways of use, or that can be opened to production by economically zoning, revitalization and reclamation.
AGRICULTURAL LAND TYPES AND USE
Article (13) of Law No. 5403: Strict agricultural lands, special crop lands, planted agricultural lands and irrigated agricultural lands cannot be used for purposes other than agricultural production. However, provided that there is no alternative area and the Board deems it appropriate; a) Strategic needs for defense, b) Temporary settlement needs arising after natural disasters, c) Oil and natural gas exploration and operation activities, d) Mining activities for which a public interest decision has been taken by the relevant ministry, d) Plan for which a public interest decision has been taken by the ministries and investments, e) Investments that will carry out road infrastructure and superstructure activities considering the public interest, f) Investments related to the use of renewable energy resource areas in accordance with the Electricity Market Law No. 4628 dated 20/2/2001 upon the request of the Energy Market Regulatory Authority, g) Geothermal sourced Requests for non-purpose use of these lands for technological greenhouse investments may be permitted by the Ministry, provided that soil conservation projects are complied with. The Ministry may delegate this authority to the governorships. Agricultural lands other than absolute agricultural lands, special crop lands, planted agricultural lands and irrigated agricultural lands; It can be allocated for non-agricultural uses by governorships, provided that soil conservation projects are followed. For agricultural purposes, agricultural land of all classes and characteristics in the required amount can be used with the permission of the governor, provided that the project is adhered to. Operators who receive permission under clauses (c) and (d) of the first paragraph are obliged to carry out their activities in a way that does not harm the environment and agricultural lands and to restore the places allocated to them to their former status at the end of the allocation period. Objections to the decisions made by governorships within the scope of this article are evaluated and decided by the Ministry. The procedures and principles of practices regarding the protection and misuse of agricultural lands are regulated by regulation.
WHAT IS COLLECTION?
For various reasons, fragmented, dispersed, irregularly shaped parcels that do not allow economic agricultural activities or that make it difficult to take soil conservation and agricultural irrigation measures are brought together and formed into more regular parcels, along with in-field development services, modern agricultural management principles and the most appropriate methods for the development of irrigation services. The process of combining, shaping and rearranging in an appropriate manner is called “LAND COLLECTION”.
Legal Definition: To prevent the degradation and fragmentation of agricultural lands by natural and artificial effects, to combine more than one piece of land in fragmented lands, taking into account their natural characteristics, usage integrity and property rights, and to create economic, ecological and more functional new parcels, to determine the usage patterns of these parcels by evaluating the land characteristics and area. determination and provision of land development services.
PURPOSE OF COLLECTION
The aim of land consolidation is to increase agricultural production and the efficiency of agricultural enterprises and to raise the living standards of the population in rural areas by making the best use of production factors with less use of time, labor and capital. In one aspect, Land Consolidation means the renewal of the Cadastre.
WHY IS COLLECTION DONE?
-Land fragmentation increases labor, input, capital and production losses in agricultural enterprises,
-Some of the lands cannot benefit from existing service roads, irrigation and drainage channels,
-The parcels are divided by inheritance or their shape is distorted,
-Further fragmentation of parcels with new channels and roads through projects such as irrigation, soil conservation or state roads,
-Consolidation is carried out due to reasons such as the topographic structure requiring land leveling regardless of parcel boundaries.
WHAT ARE THE BENEFITS OF LAND COLLECTION?
Agricultural lands are transformed into parcels properly: Lands with irregular shapes (triangle, pentagon, arc-shaped) are transformed into regular shapes (square, rectangle), making processing easier and reducing maintenance costs.
Every field is provided with a road: While there were many fields without roads before consolidation, there are no fields left without roads in agricultural lands after consolidation.
The use of agricultural machines is more economical: While the operation of agricultural machines such as tractors and combine harvesters on fragmented, small and irregularly shaped lands is extremely costly for the producer and machine owner; Using these machines in single-piece, large and well-shaped fields also provides savings for the producer and the owner of the construction equipment.
The amount of arable land is increasing: In multi-fragmented agricultural lands before consolidation, the total length of field borders is also longer since the number of fields is high. This means that the fields that can be cultivated cannot be cultivated and remain empty. Since the field border will decrease in single-piece and large fields formed as a result of consolidation, the amount of land that can be cultivated increases.
It facilitates pesticide control and fertilization: It is both difficult and often uneconomic to carry out activities such as pesticide control and fertilization on small deformed lands before consolidation. Since the lands will be properly shaped after consolidation, these operations will be easier and more economical.
Small unused lands are being evaluated: Privately owned lands that were divided before consolidation due to projects such as highways, railways and canals, and some of which became unusable due to their small size, as well as areas such as old unused roads and stream beds, will be brought into agriculture through consolidation.
Disagreements between field owners are eliminated: In areas where there were multi-part lands before consolidation, disputes that may occur between property owners due to reasons such as transportation roads, water problems, border disputes, etc. are eliminated because not every parcel will have water and road problems after consolidation.
IN-FIELD DEVELOPMENT SERVICES
In the application of the land consolidation project to the land, in order to increase productivity, increase irrigation efficiency and irrigation rate, protect and increase the value of agricultural lands; field roads, drainage channels, irrigation constructions, removal of trees, reeds, willows, bushes, streams, trees, etc. In order to ensure agricultural development through projects such as dismantling, excavation and filling, land leveling and reclamation, in-field development services are carried out or commissioned by DSI or the project administration. Before the land consolidation project begins, in-field development services that need to be done on the land are determined and designed. Project administrations wishing to carry out private land consolidation submit a request to DSI with a reasoned technical report regarding the on-farm development services they wish to carry out before the Presidential Decision is taken.
In-field roads are built or commissioned by DSI or the project administration. The in-field roads included in the block plans created within the scope of the land consolidation project must be connected to a main road such as roads leading to settlements or village connection roads. Within the scope of the land consolidation project, areas with drainage problems are identified and drainage projects are carried out and irrigation projects are carried out if necessary by DSI or the project. Prepared by the administration. Irrigation and drainage projects to be prepared within the scope of private land consolidation are subject to the approval of DSI. In order to deliver the newly formed parcels after the land consolidation project, the removal of the field boundaries (moments) existing on the land according to the old cadastral situation is done or made to be done by DSI or the project administration. Construction works such as excavation and filling on the land are carried out or commissioned by DSI or the project administration in order to cover some dry stream beds, earthen arcades, small-scale pits and slopes that are planned to be given to farmers as new parcels in the subdivision plan in the consolidation project site, and to bring them back to agriculture. Irrigation water is provided to all parcels in the land consolidation project site. In cases where the irrigation system and the applied irrigation method necessitate the access, land leveling and terracing according to the new ownership plan on lands with gradual topography are carried out by DSI or the project administration. Within the scope of land consolidation, if required by the project, planting trees and green banding on the new roadsides in order to protect the ecological balance. Projects such as the creation of a project can be carried out or commissioned by DSI or the project administration.
COLLECTION PROCEDURES
1- ANNOUNCEMENT OF COLLECTION DECISION
It is notified to the highest local administrative authority within one month following the publication of the Presidential Decree in the Official Gazette. This decision is announced on the websites of DSI or the project administration that carries out the private land consolidation, as well as at the workplace of the village or neighborhood headman, for thirty days.
2- INSTITUTION RESPONSIBLE FOR PERFORMING COLLECTION PROCEDURES
With Law No. 7139, Land Consolidation projects carried out by the General Directorate of Agricultural Reform were transferred to the General Directorate of State Hydraulic Works. Additional Article (9) of Law No. 7139: Preventing the deterioration and fragmentation of lands by natural and artificial effects, and combining more than one piece of land in fragmented lands, taking into account their natural characteristics, usage integrity and property rights, and creating new parcels that are more functional in economic, ecological and social terms, and converting these parcels into land. Land consolidation is carried out in order to determine the usage patterns by evaluating the characteristics and area and to provide village and land development services. The area within the borders where the land consolidation project will be implemented is determined as the land consolidation project area. DSI is authorized as the implementing organization in the execution of land consolidation and on-farm development services. Institutions and organizations other than DSI are authorized to carry out land consolidation and on-farm development services in the capacity of project management, subject to the permission of DSI.DSI may carry out optional or compulsory land consolidation and on-farm development services upon the request of the Ministry to which it is affiliated and the decision of the Council of Ministers, or without the consent of the owners. The decision of the Council of Ministers is considered a public interest decision in terms of land consolidation and other transactions. Actual practices to be carried out by DSI or the project administration on the land where land consolidation and on-farm development services will be implemented are not subject to the permission of the rights holders. DSI or the project administration is authorized to restrict agricultural activities in areas where land consolidation and on-farm development services are carried out. Soil surveys and analyzes needed for land consolidation and on-farm development services are carried out or made by DSI, which carries out the land consolidation, or the project administration, which carries out private land consolidation. Land consolidation. and on-farm development services will be announced on the websites of DSI or the project administration that carries out the private land consolidation, as well as at the workplace of the village or neighborhood headman, for a period of thirty days.Announcements made pursuant to this article are deemed to have been personally notified to the relevant real persons, public and private law legal entities. A lawsuit can be filed against the results of land consolidation within ten years from the date of registration. Cases filed regarding land consolidation transactions are first discussed and concluded by the relevant courts. In case more than one institution or organization requests to provide consolidation and/or in-field development services in the same field, land consolidation and /or DSI is authorized to determine the organization that will provide on-farm development services. The approval and registration of all works and transactions carried out within the scope of land consolidation works and the legal liability arising from these transactions belong to DSI or the project administration, which carries out the land consolidation, depending on the relevant person. Agricultural lands that can be evaluated in accordance with consolidation purposes are allocated to DSI or the project administration by the Ministry of Finance, regardless of their characteristics and current use, upon the request of DSI.After the decision of the Council of Ministers regarding the places declared as land consolidation areas is published in the Official Gazette, the transfer, assignment, mortgage and promise of sale of the ownership and possession of the lands subject to land consolidation in these areas until the land consolidation procedures are completed are subject to the permission of DSI and the project administration. DSI or the project administration. When necessary, it may consolidate agricultural lands below the minimum agricultural land size or expropriate them for evaluation within the scope of this article. In land consolidation practices, new agricultural lands of minimum size can be created by combining allocated lands with lands below the minimum agricultural land size. The lands created in this way; First of all, it is sold to the land owners who are subject to land consolidation or expropriation, and if these people do not purchase it, it is sold to local farmers who do not have agricultural land of sufficient income, at the market price, upon the request of DSI or the project administration, in accordance with the procedures and principles determined by the Ministry of Finance. Transactions subject to expropriation and sales carried out for this purpose are exempt from fees, and papers to be issued in relation to these transactions are exempt from stamp duty.DSI is authorized as the implementing agency in the execution of land consolidation and on-farm development services. DSI is legally responsible only for the works and transactions carried out within the scope of the land consolidation works it carries out. Institutions and organizations other than DSI are authorized to carry out land consolidation and on-farm development services in the capacity of project administration, subject to the permission of DSI. As the implementing agency, DSI can carry out land consolidation and on-farm development services optionally or compulsorily without the consent of the owners, by DSI or the project administration, with the Presidential Decree taken. On-farm development services can be provided or outsourced.
COLLECTION UNDER LAW NUMBER 3-3083
Article (6) of the Law No. 3083 titled Consolidation and On-Field Development Services: In order to realize the purposes specified in this Law, land consolidation can be carried out in application areas by the relevant organization, optionally or without seeking the consent of the owners. Such as land expansion by the relevant organization to encourage land consolidation, giving priority to the optional ones. Supportive measures can be taken. Depending on the nature of the project, up to 10% contribution fee is deducted from the land belonging to real persons and public and private law legal entities in consolidation areas for places that will be shared by the public, such as roads and canals. Roads closed due to consolidation and excess roads are also used for the same purpose. No fee is paid for the participation fee. However, the land cut apart from the participation share is firstly covered from the equivalent Treasury land, if any. Otherwise, expropriation is carried out for the cut land. At the end of the consolidation, the agricultural land distributed or left to its owner is registered in the name of the owners, and the remaining land is registered in the title deed upon the request of the implementing organization in the name of the Treasury. Apart from the provisions of this Law, land registered in the name of its owners cannot be divided into smaller pieces than the distribution norm determined for that region, by consent or decree, and cannot be subject to division procedures. This issue is annotated in the land registry. Protection and development of soil and water resources, water supply in rural areas and disposal of used water services are planned together with land consolidation and in-field development services. On-farm development services; It covers activities such as field roads and engineering structures, open and closed drainage, irrigation facilities, land reclamation using chemicals, soil conservation and stream bed reclamation. Carrying out agricultural activities during consolidation works in areas planned as common use areas is subject to the permission of the relevant organization.
In consolidation, the compensation for the integral parts of the areas planned to be shared by the public, such as canals and roads, and any income losses that may arise until the new parcels are delivered to the farmers are covered by the implementing organization. The principles and procedures of consolidation, the grading of the soil and how on-farm development services will be carried out are specified in the regulation.
4-LAND SURVEYS AND DETERMINATION OF COLLECTION AREAS
The boundaries of the area where the land consolidation project will be implemented and the area within these boundaries are determined as the land consolidation project area by preliminary survey studies. The area determined as the land consolidation project site; It is examined in terms of location, transportation status, ownership and cadastral status, topography and soil status, land use status, irrigation, drainage and other in-field development services requirements, and the works to be included in the project and their justifications are stated in the preliminary survey report.
5-WHAT ARE THE TYPES OF COLLECTION?
Compulsory Land Consolidation: It is a land consolidation carried out in the public interest without seeking the consent of the land owners in the project area.
Optional consolidation: It is carried out with the written consent of the land owners or their legal representatives, who own more than half of the lands to be consolidated within the project area and constitute more than half of the owners in number. The process of obtaining consent is carried out by DSI or the project administration before the Presidential Decision and is added to the justification.
6-LEGAL NATURE OF COLLECTION DECISION
The Presidential Decree is considered a public interest decision in terms of land consolidation and other transactions.
7- ASSESSMENT OF THE AREA TO BE COLLECTED AND OBJECTION
According to Law No. 3083, Grading of Land: In consolidation operations, it is to ensure the equivalence of the land to be replaced with the land to be replaced, based on factors such as its market value on the date of implementation, its productivity, characteristics, distance to settlements and location. Article (11) Soil surveys and analyzes required for land consolidation are carried out or commissioned by DSI or the project administration that carries out the land consolidation. Land grading is done by the land grading commission to replace real and legal persons and state-owned lands in the consolidation area with new land of the same value. It is done or made to be done by the project unit for the purpose. In land rating; Soil surveys determine the permanent and variable properties of the soil, and the grading coefficients that will be the basis for the change in location and size are determined by taking into account the distance of the land to settlements or business centers and other characteristics of the land. The determined coefficients are multiplied by the regulated areas of the cadastral parcels to obtain the parcel value numbers of the relevant parcels. New parcel areas are determined by dividing these calculated values by the indices of the location where the new parcels that will be created during parceling planning will be located.
Land owners and other interested parties may submit their objections regarding land grading in writing to the land grading commission within fifteen days from the end of the announcement period. The land grading commission decides on the objections within fifteen days at the latest, notifies the relevant parties in writing, and announces the objections by suspending them for a period of thirty days. Land owners and other interested parties may object in writing to DSI or the project administration within fifteen days from the end of the announcement period. DSI or the project administration records these objections and makes a decision within thirty days. The decision of DSI or the project administration is final and notified to the relevant parties in writing. Land ratings that are not objected within the period are final. The title deed owner whose objection is rejected must file a lawsuit with the administrative court within 60 days.
8- CUT TO BE MADE FROM LANDS IN COLLECTION
According to Law No. 3083 and 7139, the deduction called participation share for common facilities (Regulation share); A deduction of up to 10% can be made from the parcel value numbers found by evaluating the surface area of the cadastral parcels subject to land consolidation, recorded in the land registry, together with the land characteristics, for places that are needed for the project and will be shared by the public, such as roads, canals, evacuation channels.
9-LANDS TO BE COLLECTED
Land consolidation is implemented in places where cadastre has been completed. If the cadastral sheets need to be renewed within the determined consolidation area, the cadastral or renewal procedures of these places are first carried out or have done by the General Directorate of Land Registry and Cadastre.
10-LANDS THAT CANNOT BE COLLECTED
First degree protected areas, forests, development areas and non-agricultural areas with different purposes are excluded from the project in the block plan as they cannot be subject to land consolidation.
11- SUSPENSION, OBJECTION AND APPROVAL OF NEW PASSAGE PLANS
New parceling plans and new ownership lists made or commissioned by DSI or the project administration based on land ratings are announced on the local headman’s building, village mansion, village mosque, property directorates to which the settlement unit is affiliated, and on the bulletin boards of the municipalities, for thirty days. Land owners and other interested parties may object in writing to DSI or the project administration within fifteen days from the end of the announcement period. Objections are recorded, resolved within fifteen days at the latest, and notified in writing. Parcel plans evaluated after the objection are suspended for thirty days using the same announcement methods and become final. If deemed necessary, three suspensions can be made with a reasoned report to be prepared by DSI or the project administration. However, in cases required by public investments, a new suspension can be made with the approval of DSI and/or the project administration.
The new parceling plan and property lists become final after being approved by the DSI or project administration that carries out the application. In accordance with the finalized parceling plan, the new parcels are distributed to the rightful owners with a site delivery report. Parcel sketch samples of the new parcels of the rightful owners who did not participate in the distribution or whose land delivery could not be actually delivered are sent to the relevant headmen’s offices by official letter with return receipt requested. Following the delivery to the relevant headman’s office, the fact that the parcel sketch sample of the new parcels of the beneficiaries is in the relevant headman’s office is announced for thirty days on the websites of DSI or the project administration that carries out the private land consolidation, as well as at the workplace of the village or neighborhood headman. Announcements made pursuant to this article are deemed to have been personally notified to the relevant real persons, public and private law legal entities.
12-REGISTRATION OF THE NEW PASS PLAN
The finalized parceling plan is applied to the land. The technical file regarding the new situation resulting from the application is prepared by DSI or the project administration and sent to the cadastral directorate. After the necessary checks are carried out by the cadastral directorates, it is sent to the land registry office to be registered. The distribution tables must include the Republic of Turkey identification number and other identification information of the beneficiaries.
Written by: Lawyer İrem Tandoğar Ekinci