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OBJECTIVE VALUE INCREASE IN DETERMINING THE VALUE OF PROPERTY IN FIELD (LAND) CHARACTERISTICS
As frequently emphasized in the jurisprudence of the Constitutional Court and the Supreme Court of Appeals, the real expropriation value of the expropriated real estate must be determined and the price must be paid to the owner. This is a requirement of the right to property and the principle of proportionality.
In determining land expropriation values in Turkey, land values are determined according to the income method, based on the income to be obtained from the lands according to the Expropriation Law No. 2942. However, various difficulties are encountered in the application of the income method and it is not always possible to determine a realistic value. With the decisions of the Supreme Court, various measures are taken to solve these problems and achieve standard practices. However, due to the differences between the practices of the valuation commissions of expropriating institutions and the practices of experts, it is often not possible to reach the required expropriation value of real estate.
In accordance with subparagraph (f) of the first paragraph of Article 11 of the Law No. 2942, the expropriation fee for lands is determined by taking into account the location and conditions of the immovable property and its resources, the net income it will bring if used as it is, and the characteristics of the immovable property and other principles specified in the said paragraph. The net income of the land is determined by subtracting the total production expenses from the gross income determined by taking into account the average yield amounts of the products predominantly grown on the property and the average wholesale prices in the evaluation year. We have given detailed information on this subject in our article about the method of calculating the value of field properties in expropriation cases.
WHAT IS OBJECTIVE VALUE?
In expropriation, the reflection of the land in the price by writing down the features that make it more valuable compared to its counterparts is called objective value.
In the price determined in accordance with clause (f) of Article 11, clause (c) includes all the qualities and elements that may affect its value and the value of each element separately, and clause (i) includes other objective measures that will be effective in determining the price, provided that the effect of each measure is explained.
In subparagraph (i) of the first paragraph of the said article, other objective measures that may be effective in determining the price;
-Marketing or transportation facilities of the land subject to expropriation compared to precedents,
– Proximity to main roads
– Proximity to city centers
-Whether the municipality is within the adjacent area or not,
-It is possible to increase the price determined by scientific method (Income Method Method) by a certain amount in accordance with paragraph (i) of Article 11, taking into account some features that will positively affect its value, such as proximity to residential areas. In practice, it is seen that the expropriation value is determined by applying an objective value increase between 10% and 500% to the value of the lands calculated by the income method.
With the Law No. 4650, on 19.04.2018, the 1st paragraph (ı) of the 11th article of the Expropriation Law No. 2942 includes “Other objective measures that will be effective in determining the price, provided that they do not exceed half of the land price determined according to the elements specified in this paragraph and the effect of each measure is explained.” It was changed to . With this amendment, the objective value increase rate has been limited to a maximum of 50%. However, this limitation was found to be unconstitutional and was annulled by the Constitutional Court’s decision dated 10.04.2019, numbered 2018/156 Es- 2019/22 K.
PREMIUM SUPREME COURT DECISIONS AND OBJECTIVE VALUE INCREASES
When calculating the expropriation value of agricultural lands using the income method, it is often not possible to reach the required expropriation, that is, the market value of the real estate, so the Supreme Court attaches importance to the increase in Objective Value.
Decision of the 5th Civil Chamber of the Supreme Court of Appeals dated 26.09.2018, numbered 2017/10049 E., 2018/15534 K.
The court decided to accept the case; The verdict was appealed by the attorneys of the parties.
In determining the value of the real estate numbered 1499 parcel of … Village, which is land, scientifically based on the net income it will bring if used as it is; There was no methodological error in valuing the trees on the immovable property that do not qualify as a garden and deciding to block the determined amount and pay it to the defendant without waiting for the verdict to be finalized.
However;
1-) Considering the irrigated agricultural land nature of the real estate, its location and surface area, while the capitalization interest rate should be applied as 4% when determining the value, this rate is accepted as 5% and a low price is determined,
2-) Considering the characteristics of the immovable properties in question stated in the expert report, the decision was not considered to be necessary to add an objective value-increasing element to the determined square meter unit price.
Supreme Court of Appeals 5th Civil Chamber, Decision No. 2017/3588 E., 2018/15699 K., dated 27.09.2018
According to the method of income to the ground of the real estate numbered 224 parcel of … village, which is a land, no errors were observed in the fixed value of the trees.
However;
1) Considering the dry agricultural land nature, location and surface area of the real estate, while the capitalization interest rate should be applied as 5% when determining the value, this rate is accepted as 6% and the low price is determined,
2) Taking into account the location of the real estate in question and the features specified in the expert report, the decision to award a lower price according to the expert report, which accepted a lower objective value increase rate, without considering that the objective value increasing element to be added to the determined square meter unit price would be 250%, necessitated the reversal of the decision. .
Written by: Lawyer İrem TANDOĞAR EKİNCİ
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