Turkish
I-WHAT IS PARTIAL EXPROPRIATION?
The expropriation process may concern the entire property, or it may be decided to expropriate a certain part of it. This situation is called partial expropriation.
II-DETERMINATION OF THE VALUE OF PROPERTY IN PARTIAL EXPROPRIATION
Article 12 titled Partial Expropriation of Law No. 2942 – The value of the partially expropriated immovable property;
a) If there is no change in the value of the non-expropriated part due to expropriation, it is the amount of the value of that property appraised according to the principles specified in Article 11, falling on the expropriated part.
b) If there is a decrease in the value of the part outside of expropriation due to expropriation; This is the amount found by determining the amount of the diminished value and adding the diminished value to the expropriation value determined in accordance with the principles specified in paragraph (a) of the expropriated part.
c) If there is an increase in the price of the part outside of expropriation due to expropriation, the amount of increase is determined and is the amount found by subtracting the increased value from the price of the expropriated part determined in accordance with the principles specified in paragraph (a).
However, the reduction to be made in accordance with paragraph (c) cannot be more than fifty percent of the expropriation fee. The decrease and increase amounts of the price mentioned in paragraphs (b) and (c) are determined by price assessment according to the principles specified in Article 11.
If the part outside of expropriation is suitable for use in accordance with the zoning legislation, the expenses and costs required to restore the buildings, enclosure walls, sewerage, water, electricity, gas ducts, machinery, etc. that will remain to the owners, to a usable state within their former qualities, will be determined and added to the expropriation fee. is added. These costs and charges are not taken into account in determining the amount of impairment written in paragraph (b).
If the remaining part of the immovable property, some of which has been expropriated, is not in a suitable condition to benefit from, this part must also be expropriated upon the written application of the owner of the property within thirty days from the notification of the expropriation decision, in cases where a lawsuit is not filed in the administrative jurisdiction against the expropriation. 6208 (Amended sixth paragraph: 21/3/2018 – 7103/27 art.) As a result of the expropriations made for the construction of the dam, the immovable properties adjacent to the expropriation area will be subject to the social, economic or environmental impact of the environment upon the written application of the owners within one year from the date of download of the announcement stating that the expropriation process has been completed. It is examined by the commission established in the relevant governorship to determine whether the settlement order is disrupted and whether it is possible to benefit from it economically or socially. As a result of the examination carried out by the commission, if it is decided that the social, economic or settlement order of the environment is disrupted and it is not possible to benefit from the immovable property, the immovable property is subject to expropriation.In cases filed by the owner of the immovable property in this context, it is a requirement to apply to the relevant governor’s commission. Issues regarding the implementation of this paragraph are regulated by the regulation put into effect by the President. Articles 22 and 23 do not apply to adjacent immovable properties expropriated in this way. The administration may dispose of these immovable properties as it wishes, taking into account the provisions of the zoning legislation, and when necessary, transfer them to the Treasury free of charge. (1) If the immovable property subject to shared ownership, which is partially expropriated, has been previously divided among the stakeholders and left to the disposal and benefit of one or more stakeholders, and the partial expropriation covers the whole or a part of this place, in this case, the expropriation procedures are carried out only about this stakeholder or stakeholders and the expropriation is made. The price is paid to them in proportion to their shares. Shares or stakeholders have the right to sue only for this part. They no longer have rights over the part of the immovable property that is not expropriated and their names are removed from the stakeholders. These expropriated places are registered in the land registry in the name of the administration. Disputes arising from the application of this article will be resolved in the judicial judiciary.
A) DECREASE IN VALUE OF THE PROPERTY REMAINING OUTSIDE THE EXPROPRIATION PROCESS
If there is a decrease in the value of the part outside of expropriation due to expropriation, this decreased amount is determined; By adding this loss of value to the expropriation value of the expropriated part, the price of the partially expropriated real estate will be determined (Art. 12/1b). First, the value of the expropriated part is found, and then, if there is a decrease in the value of the part outside of expropriation, this issue is determined. The expropriation cost will be determined by adding this determined amount to the expropriation fee.
In its decision dated 02.12.2019, numbered 2019/2007 E., 2019/19332 K. of the 5th Civil Chamber of the Supreme Court of Appeals, “… the real estate, which is land in Afyonkarahisar Province, Central District, İsmail District, island 114, parcel number 32, according to Article 11/1 of the Expropriation Law No. 2942″ In the valuation based on the income method in accordance with article f, the remaining part of the expropriation shall be decided on the basis of the price calculated by accepting that there will be a 30% decrease in value, taking into account its geometric shape and surface area…” As can be clearly understood from the decision, the remaining part of the partial expropriation is The newly formed geometric shape and surface area are important for the
In accordance with the established decisions of the 5th Civil Chamber of the Supreme Court of Appeals, if a decrease in value of more than 50% is detected, it is decided to expropriate the entire property with the approval of the owner.
B) IF THE PART EXCLUDED FROM EXPROPRIATION IS SUITABLE FOR USE IN ACCORDANCE WITH THE ZONING LEGISLATION
If the part outside the scope of the expropriation process is suitable for use according to the zoning legislation; The cost required to restore the parts of the buildings, enclosure walls, sewerage, water, electricity and air gas ducts that will remain to the owners, in a usable condition in accordance with their former qualities, is determined and added to the expropriation cost. These expenses and costs cannot be taken into account in determining the amount of impairment of the remaining place (Art. 12/4). The point here is that after the provision for partial expropriation is determined, the mandatory expenses to be incurred for the use of the specified things by the owners are determined and added. These expenses will be determined by the experts participating in the survey and will be added to the expropriation fee.
C) APPLICATION TO THE ADMINISTRATION FOR THE EXPROPRIATION OF THE PART OF THE PROPERTY THAT IS NOT EXPRESSED
According to the 5th paragraph of Article 12 of the Expropriation Law; If the immovable owner does not file an annulment lawsuit in the administrative court against the expropriation process, he may request the expropriation of the remaining part of the immovable property by making a written application to the administration within 30 days from the notification of the expropriation decision (Art. 12/4). The immovable owner may benefit from the remaining part of the expropriated immovable property. If he thinks that it is not suitable, he will apply to the administration for the expropriation of the remaining part. It is mandatory for the administration to examine this issue and make a positive or negative decision. If the answer given by the administration is negative, the owner of the real estate must file a price determination lawsuit with the Civil Court of First Instance.
D) EXPROPRIATIONS MADE FOR DAM CONSTRUCTION
In expropriations made for dam construction, immovable properties adjacent to the expropriation area are affected by the environment; In cases where the social, economic or settlement order is disrupted or it is not possible to benefit from the property economically or socially, it is subject to expropriation upon the written application of the owners.
It is extremely important to determine whether the owner has the opportunity to benefit from the real estate legally or de facto in the remaining part of the partially expropriated real estate. The court should write a warrant to the relevant municipalities to determine whether there is a legal restriction in terms of Zoning Legislation for the remaining part, and the surface area and other characteristics of the remaining part should be observed by experts at the time of discovery.
Written by: Lawyer İrem Tandoğar Ekinci