ARTICLESINTEREST PROVISIONS REGARDING PRICE AND REPAYMENT IN EXPROPRIATION CASES

WHAT IS INTEREST IN GENERAL?

In legal terms, interest is a type of compensation that the creditor receives in exchange for leaving the opportunity to use the cash to the debtor due to being deprived of his cash for a period of time, the amount of which is determined by law or legal action, is regulated specifically for money debts, and the presence of damage and fault is not required for collection. , is a marital “fruit(return)” or “contribution(return)”. Interest can only be charged if there is a special basis for it.

1-INTEREST IN CASE THE EXPROPRIATION FEE IS NOT PAID IN CASH OR IN CASH

Administrations are obliged to pay in cash and in advance for the expropriation of immovable properties, resources and easement rights required for the execution of public services. In other words, in order to carry out expropriation, the administration must first allocate sufficient funds for the expropriation process and start the expropriation process in this way. Article 3 of the Expropriation Law also provides the opportunity to pay the expropriation fee in equal installments. In accordance with the Purchasing Procedures, if the administration and the title owner agree on the price of the real estate to be expropriated, a Minute of Agreement is prepared.If the expropriation fee is not paid by the administration despite an agreement being reached, the highest interest rate foreseen for state debts is applied to the expropriation fee.

Article 3 of Law No. 2942 on the Subject: “In expropriations to be made for the purpose of realizing large energy and irrigation projects and settlement projects, growing new forests, protecting coasts and tourism, accepted by the President, the expropriation fee to be paid to a real person or a private legal entity shall be determined in the General Budget Law of that year. the amount shown,It is paid in cash and in advance. This amount cannot be less than one sixth of the expropriation cost. Expropriation costs exceeding this amount are paid in equal installments, not less than the down payment amount and to be paid with interest within a maximum of five years. The highest interest rate foreseen for government debts is applied to installments starting from the day following the advance payment date. ‘’ It is in the form.

2-INTEREST IN PRICE DETERMINATION AND REGISTRATION CASES FILED BY THE ADMINISTRATION

If the administration and the title deed owner cannot reach an agreement according to the Purchasing Procedure, the administration files a lawsuit for the determination of the price of the immovable property and the registration of the immovable property in the name of the administration in accordance with Article 10 of Law No. 2942. In this case, the immovable property is registered in the name of the administration by paying the determined price. On 19.04.2018, 7139 The payment procedure for the expropriation fee has been changed with the 26th article of Law No. Before 19.04.2018, the entire expropriation fee determined by the court was paid to the owner with the court decision, without waiting for finalization. As a result of the amendment brought by Law No. 7139, the price determined by the Administration’s Valuation Commission was paid in advance to the title deed owner together with the decision, without waiting for finalization, while the value assessment commission The amount determined by the court above the determined price will be paid to the title deed owner upon finalization.

a) Interest to be applied to the blocked expropriation fee

As a result of the amendment made by Law No. 7139, the amount determined by the court on the valuation commission fee is paid to the title deed owner after the decision is finalized and deposited in the bank to be accrued in a quarterly deferred account. In this case, the money is accrued by banks with very low interest rates, which causes the money to lose value.

Law No. 2942 Article 10 (Amended eighth paragraph: 19/4/2018-7139/26 art.) “In case the parties agree, the amount agreed as the expropriation fee is deposited in cash and in cash to the bank on behalf of the rightful owner. If the parties cannot agree, the price determined by the judge as the expropriation fee is less than the price determined by the administration’s valuation commission, the price determined by the judge, if it is more, the price determined by the administration’s valuation commission, in advance and in cash, on behalf of the rightful owner, The remainder shall be deposited into the bank account determined by the court to be accrued in a three-monthly deferred account until the decision regarding the amount is finalized and to be given to the rightful owner according to the finalized decision, and the administration shall be given fifteen days to submit the receipt proving the deposit. If the expropriation has been made in accordance with the second paragraph of Article 3 of this Law, the first installment must be deposited in cash and in the name of the rightful owner, or if the rightful owner cannot be determined, to be given to the rightful owner in the future, to the bank specified in the invitation and announcement to be made by the court in accordance with Article 10, and the receipt proving the deposit has been made. The administration is given fifteen days to submit it. If necessary, this period may be extended by the court for once. A receipt stating that the expropriation fee has been deposited by the administration on behalf of the rightful owner, and that if the amount determined by the judge as the expropriation fee is more than the price determined by the administration’s valuation commission, the excess amount is blocked or, in cases where the rightful owner cannot be determined, it is blocked to be given to the rightful owner in the future. In case of submission, the court decides to register the immovable property in the name of the administration and to pay the expropriation fee to the rightful owner. and this decision is notified to the land registry office and the bank where the money is deposited.

b) Interest if the lawsuit filed for the determination of the expropriation price is not concluded within four months.

As a result of the amendment made to the Law No. 2942 with the 6th article of the Law No. 6459 on 11.04.2013, if the Cost Determination and Registration case to be filed with the court by the administration for the expropriation of the immovable property is not concluded within four months, interest will be applied to the price determined by the court. The interest to be applied to this price is the legal interest and is currently annual. It is 9%. Interest will start from the next day, calculated as four months from the date of the case.

Before the changes made in the provisions regarding the payment of expropriation fee with the Law No. 7139, interest was applied until the date of decision in accordance with the jurisprudence of the 5th Civil Chamber of the Supreme Court of Appeals, while there are Supreme Court Decisions to apply the interest until the date of finalization, taking into account the amendment made with the Law No. 7139.

Article 10 of Law No. 2942 (Additional paragraph: 11/4/2013-6459/6 art.) states that “If the lawsuit filed for the determination of the expropriation price cannot be concluded within four months, legal interest will be charged on the determined price from the end of this period.”

3- INTEREST ON REPAYMENT IN COST DETERMINATION CASES

As a result of the amendment made in Article 10 of Law No. 2942 with Law No. 7139 on 19.04.2018, no advance payment is made to the title deed owner except for the fee determined by the valuation commission determined by the administration. However, if a payment has been made and as a result of the appeal or appeal of the file in terms of price determination, it is determined that the expropriation fee is less than the price paid to the title deed owner, the difference is requested from the title deed owner by the administration. No interest is charged. Legal interest is applied from the date of notification.

Article 10 of Law No. 2942: “The registration decision is final and the parties’ rights of appeal or objection regarding the price are reserved. If the expropriation fee finalized as a result of the appeal or appeal review is less than the amount paid to the rightful owner in advance and in cash, the difference is requested from the relevant party. No interest is charged for the period between the date of payment made by the administration on behalf of the beneficiary and the date when the letter regarding the refund is notified to the relevant person.

4- WITHDRAWAL AND INTEREST IN CASE THE ADMINISTRATION ABANDONS AFTER EXPROPRIATION IS FINALIZED

Pursuant to Law No. 2942, after the expropriation process is finalized by purchasing procedure or by court decision, from the moment the administration informs the owners that there is no need to use the real estate for any need, the owners can take back the expropriation fee by paying it together with the legal interest that will accrue from the day they received it. If the return is made within one year from the date of finalization, no interest is charged from the owner.

Article 22 of Law No. 2942 states: “After the finalization of expropriation (…)(3), if there is no need to allocate immovable properties for the purpose of expropriation or for any need for public interest, the situation shall be notified by the administration to the owner or heirs of the property in accordance with the provisions of the Notification Law No. 7201. (Amended second and third sentences: 10/9/2014 – 6552/100 art.) Upon this announcement, the owner or his heirs may take back the immovable property by paying the expropriation fee within three months, together with the legal interest accrued from the day they received it. If the return process takes place within one year after the expropriation and its value are finalized, no interest on the expropriation fee will be charged.

Article 23 of Law No. 2942: “Within five years from the date of finalization of the expropriation fee, by the administration that made the expropriation or by the administration to which the transfer or allocation was made in accordance with the fourth paragraph of Article 22; If no transaction or installation is carried out in accordance with the purpose of expropriation and transfer, or if the immovable property is left as it is without being allocated to a need for public benefit, the owner or his heirs can take back the immovable property by paying the expropriation fee together with the legal interest that will accrue from the day they received it.(1) The right of redemption that is not exercised within one year from its birth shall be waived. Article 23 – Within five years from the date of finalization of the expropriation price, by the administration that carried out the expropriation or by the administration to which the transfer or allocation was made in accordance with the fourth paragraph of Article 22; If no transaction or installation is carried out in accordance with the purpose of expropriation and transfer, or if the immovable property is left as it is without being allocated to a need for public benefit, the owner or his heirs can take back the immovable property by paying the expropriation fee together with the legal interest that will accrue from the day they received it. (1) From the day it was born. The right of redemption that is not used within one year lapses.

5-REFUND AND INTEREST OF EXCESSIVE EXPROPRIATION FEE PAID

Law No. 2942 Provisional Article 10  (Added: 4/4/2015-6645/12 art.) The expropriation fee that has been paid by the administration due to expropriation as of the date of entry into force of this article, but must be repaid in accordance with the finalized judicial decisions; If the debtor is notified by the administration before the date of entry into force of this article, the collection of interest to be paid together with the expropriation fee is waived, provided that it is paid within six months starting from the month following the publication of this Law, and if it is not notified, it is paid to the relevant person within three months from the date of notification. However, in case the three-month period given for payment in notifications to be made after the effective date of this article falls within the six-month period specified in this article, the three-month period shall be extended until the end date of the six-month period. Persons who benefit from the provision of this article cannot file a lawsuit regarding this issue. Enforcement proceedings initiated against these persons are suspended during the payment period, terminated following the payment, and enforcement and trial costs are not requested.

7-INTEREST IN EXPROPRIATION CASES

As accepted in the Supreme Court jurisprudence, doctrine and justification of the article, confiscations without expropriation are an action in the nature of an “unfair act”. According to the regulation in the provisional Article 6 of the Expropriation Law, two percent of the budget revenues for municipalities and special provincial administrations, and two percent of the budget expenses for other administrations, will be used for compensation payments. To the extent that these budgets do not cover finalized receivables, the administrations in question will be able to make installments that will affect future years. In such installments, legal interest will be paid during the installment period. In cases of confiscation without expropriation, which is a tort, the beginning of interest is accepted as the case date. If the case is partially filed and corrected, it is necessary to specify the date of the case as the beginning of interest in our request for correction. The reason why the beginning of interest is taken as the date of the lawsuit is that it is accepted that the default occurred on the said date.

Supreme Court of Appeals 5th Civil Chamber decision numbered 2017/19315 E., 2019/4081 dated 11.03.2019‘’At the end of the trial held between the parties for the collection of the price of immovable property seized without expropriation: The Supreme Court’s review of the above-mentioned decision regarding the acceptance of the case, with the dates and numbers written, was requested by the petition submitted by the defendant administrative attorney, and the documents in the file were read and the dispute was understood, and the case was discussed and considered accordingly. It is about the request for the collection of the price of the immovable property confiscated without expropriation. The court decided to accept the case, the decision was appealed by the defendant administration attorney. As a result of the on-site survey, the value of the immovable property numbered 892 island 3 parcel in …… Village was determined on the date of the case and the price was collected in accordance with the report received. There was no error in the decision making.

”The decision of the 5th Civil Chamber of the Supreme Court dated 31.10.2019, numbered 2019/6659 Es- 2019/17324 K. ”

With the decision of the Constitutional Court dated 13.11.2014 and numbered 2013/95-2014/176 published in the Official Gazette dated 13.03.2015 and numbered 29294, the provisional article 6, which was amended together with the title of the Expropriation Law numbered 2942 and the 21st article of the Law numbered 6487, is ten. The third paragraph was annulled as being contrary to Articles 2 and 35 of the Constitution on the grounds that “the implementation of this exceptional regulation, which was introduced for the purpose of relieving the grievances that occurred in the period between 09.10.1956 and 04.11.1983 and includes some provisions against the owners, in the period after 04.11.1983, would harm legal security.” has been made. In this case; In seizures related to the period after 04.11.1983, the proportional fee and attorney’s fee must be awarded, and the beginning of interest is also the date of the lawsuit.

Written by: Lawyer İrem Tandoğar Ekinci