Turkish
WHAT IS EASEMENT?
Easement is a right that includes two of the powers granted to the owner of real rights, that is, the right to use and benefit. These powers, which constitute the content of the right, are, as a rule, limited. That is, the owner of the right must use or benefit from the goods that are the subject of the right only in the manner shown in the content of the right. For example, in the case of a superior property, the immovable property that is the subject of the right can only be used for building, and in the case of a passage, it can only be used for access to the road.
EASEMENT RIGHT IN EXPROPRIATION LAW NO. 2942
Expropriation Law No. 2942, art. According to 3, “Administrations shall acquire immovable properties, resources and easement rights necessary for the execution of public services or enterprises that they are obliged to provide by law; (…) They can expropriate”. According to this provision, it is not possible to establish a new easement by applying an administrative action in favor of the administration. There is a situation where an existing easement right on a real estate is expropriated and the administration acquires an easement right. In other words, in easement expropriation, there is a right registered in the title deed and this right is expropriated. In establishing an easement through expropriation, a new easement right is established in favor of the administration.
Article 4 of Law No. 2942 on the establishment of easement rights states that instead of expropriating the ownership of immovable property, easement rights can be established through expropriation on a certain section, height, depth or resource of the immovable property, if it is sufficient for the purpose.
According to the provision of the article, cable cars and similar transportation lines and all kinds of bridges can be built on the real estates, and tunnels with metro and similar rail transportation systems can be built under the real estates, based on the public interest, provided that the owners are not prevented from exercising their property rights and necessary precautions are taken in terms of life and property safety. If the use of property rights of immovable properties is not prevented, no expropriation will be made regarding the immovable properties. It has been stipulated that no value increase fee can be collected from the real estate owners due to the investment made.
The process of establishing an easement in favor of the administration through expropriation, Constitution Art. In the clear words of Article 46, it is carried out when the public interest requires it. Therefore, it is not possible to establish an easement in favor of the administration, in other words an administrative easement, through expropriation that is incompatible with the public interest. In a lawsuit filed for the annulment of Easement Expropriation, the Council of State, in its determination of public interest regarding the passage of an energy transmission line, stated that “in terms of the part of the line passing through the properties, the current route is the most suitable route in terms of technical, environmental and financial aspects, and that it does not significantly damage the property rights of the plaintiffs, and that the easement right in its current state is It has been decided that there is public interest in expropriating the land for establishment.
In another decision, it was stated that there is a public interest in passing energy transmission lines at the shortest possible distance and that there is no contradiction with the public interest and the requirements of the service, considering the impossibility of determining the route according to the ownership status of each real estate.
Determining the boundaries is important in terms of the rights and responsibilities of the parties, especially during the implementation of the easement right. For example; The owner of the easement established in favor of the administration for the pipeline to be constructed to carry out the passage of dangerous goods must take this dangerous activity into consideration when using the powers arising from the right of ownership on his real estate. On the other hand, the administration cannot impose other restrictions on the real estate beyond the scope of the easement it has. Regarding the determination of the boundaries of the easement right, the Council of State decided that the easement established in favor of TEAŞ to ensure the safety of life and property in the area adjacent to the energy transmission line was in accordance with the law. In another decision, the boundaries of the easement established for the passage of the natural gas pipeline were clearly determined by stating that “the plaintiff should not plant trees, build buildings or fixed facilities within 50 m2 of the plaintiff’s real estate up to a certain distance of the pipeline”. Such an assessment of the content of the easement should be available for all easement facilities.
The easement right does not completely eliminate the owner’s property rights. In practice, the most common cases are easement expropriation cases filed by TEDAŞ and BOTAŞ.
ISSUES TO BE CONSIDERED IN EXPROPRIATION OF EASEMENT RIGHTS AND DETERMINATION OF THE VALUE OF THE PROPERTY
In my article titled Methods of calculating the value of real estate in expropriation cases, the methods to be applied to determine the value of the real estate depending on whether it is land or land are explained in detail.
In accordance with Article 10 of the Expropriation Law No. 2942, amended by Law No. 4650, the pylon (electricity pole) is registered in the land registry in the name of the administration that expropriates the place, together with the easement right annotation regarding the High Voltage Transmission Line established in favor of TEİAŞ General Directorate. 2.2.1. Determination of the Decrease in Value Rate (DDO) According to the provision of the last paragraph of Article 11 of the Expropriation Law No. 2942, the expropriation fee in the establishment of easement through expropriation is the decrease in value that will occur on the entire property due to this expropriation. In other words, the difference between the value of the real estate before expropriation and its value after the easement passes is the expropriation cost. This price is determined as a percentage according to the size of the real estate, its use, whether it is land or agricultural land, the nature of the easement, the place where it passes and the area it covers, and the expropriation fee is determined according to the rate of decrease in value caused by the easement on the real estate.
The application of the Basic Principles of Easement Expropriation is generally guided by the decisions of the Supreme Court. Below are some stereotypical Supreme Court decisions regarding easement expropriation.
1) In expropriations made for the purpose of establishing easement rights, the same evaluation procedure is applied as in property expropriation. That is, first, as in land expropriation, the ground square meter unit value of the real estate is determined. Then, the Decrease in Value Rate (DDO) that the High Voltage Transmission Line, which is the subject of the easement right, will cause on the entire property is calculated.
2) Points to be considered in easement expropriation; It is necessary to calculate the DDO that the High Voltage Transmission Line subject to the easement will create not only in the projection area it occupies on the ground, but also in the entire property.
3) Expropriation fee related to easement right; If there is a building on the real estate, it should be calculated based on the total cost of the ground and building.
4) If the price envisaged due to the High Voltage Transmission Line easement is higher than the expropriation price of the easement area, the price that can be given due to the easement expropriation should not exceed the ground price of the easement area.
5) If there is a pylon erected on the property other than the High Voltage Transmission Line; First, the ground cost of the pole location is calculated and DDO is calculated after deducting the area of the pole location from the area of the real estate.
DECREASE IN VALUE OF THE PROPERTY DUE TO EASEMENT EXPROPRIATION
The Depreciation Rate Exceeds Fifty Percent According to the practices of the Supreme Court, in the real estate on which an easement right has been established, the maximum decrease in value that will occur due to this easement (unless there is a special situation that significantly affects the appropriate use of the real estate according to the type and quality of the real estate) is 35% of the property value of the area affected by the easement on the land and 35% on the land. It is assumed that it will be 50%.
If the loss of value in expropriation exceeds 50% (due to a special situation that significantly affects the appropriate use of the real estate according to its type and quality), the court decides;
a) The defendant is asked whether he can be satisfied with a 50% loss of value, and if he is satisfied, a judgment is made according to this amount,
b) If the plaintiff is not satisfied, the plaintiff is given the opportunity to acquire the ownership right of the entire real estate by paying the entire remaining real estate price to the administration, and upon the request of the administration, the entire real estate price is ruled; otherwise (that is, if the administration does not deem the property expropriation appropriate), Easement is granted according to the value decrease rate determined by the expert boards. The expropriation fee is decided.
Written by: Av.Ş.İrem TANDOĞAR EKİNCİ