Turkish
WHAT IS LEGAL SECURING?
Legal confiscation is the restriction of disposition powers regarding a privately owned immovable property, which is reserved for public services and official institutions in the implementation zoning plans, in a way that violates the essence of the property right.
LEGAL PROVISIONS REGARDING LEGAL SEIZURE
References made to the Expropriation Law of the Expropriation Law No. 2942 Article 41 – “References made to the Expropriation Law or certain articles in other laws are deemed to be made to this Law or the article or articles of this Law regulating the same subjects. Additional Article 1- (Added: 20/8/2016-6745/33 art.) Within five years from the entry into force of the implementation zoning plans, regarding immovable properties whose disposal is legally restricted in a way that violates the essence of the right of ownership by being reserved for public services and official institutions in the implementation zoning plans. zoning programs or zoning applications are made and these immovable properties are expropriated by the relevant administrations within the budget possibilities, or in any case, a zoning plan change is made/made to remove the restriction that would prevent the use of property rights.
Zoning Law No. 3194 Zoning programs, expropriation and restriction: Article 10 – Municipalities; They prepare 5-year zoning programs to implement this plan within 3 months at the latest after the zoning plans come into force. During the discussion of five-year development programs, representatives of relevant investor public organizations attend the Assembly meeting to take their opinions into consideration. These programs become final after they are accepted by the city council. The areas allocated to public institutions within this program are notified to the relevant public institutions. Relevant public institutions expropriate the areas allocated to public service facilities within the boundaries of five-year development programs within the period of this program. The necessary appropriations for this purpose are included in the annual budgets of public institutions. In zoning programs, the rights granted to these places by other laws continue until the places allocated for public services and the real estates that are restricted in accordance with special laws are expropriated or projects related to public services are carried out.
As a result of the Zoning Applications, privately owned immovable properties are separated as hospitals, parking lots, green areas, schools, etc. in the zoning plan. No zoning/construction activities are allowed for these immovable properties, the ownership rights of which are still held by the title deed owners, and their sale is not possible. 5 years from the implementation zoning plan. In this way, the immovable properties that need to be expropriated are left in suspense by the administration for years. This situation is not only contrary to Annex-1 of the Expropriation Law, but also contrary to the provision of Article 10 of the Zoning Law.
In addition, in Article 35 of the Constitution: “Everyone has the rights to property and inheritance. These rights can only be limited by law for the purpose of public interest. The use of the right to property cannot be contrary to the public interest.” In the 13th article, which regulates the limitation of fundamental rights and freedoms, it is stated that fundamental rights and freedoms can only be limited by law, without touching their essence, and only for the reasons specified in the relevant articles of the Constitution, and that these restrictions must comply with the letter and spirit of the Constitution, the requirements of the democratic social order and the secular Republic. and it is stated that it cannot be contrary to the principle of proportionality.
Article 1 of the Additional Protocol No. 1 of the European Convention on Human Rights, which is deemed appropriate in accordance with Article 90 of the Constitution and has become a part of domestic law, titled “Protection of property”, states: “Every natural and legal person has the right to demand respect for property and property immunity. “A person may be deprived of his property only for reasons of public interest and in accordance with the conditions prescribed by law and the general principles of international law.” provision was included.
ELEMENTS OF LEGAL TAKEAWAY
1- In order to detail the master zoning plan, the administration determines the purpose of use of the immovable properties by preparing the 1/1000 scale implementation zoning plan. The administration legally restricts the use of these immovable properties by separating the real estate of the people for general services and official institutions. In short, first of all, the 1/1000 implementation zoning plan is prepared by the administration. is required.
2- In order for this action of the administration to be in compliance with the law, zoning programs or zoning applications must be made within five years from the entry into force of the implementation zoning plans, and these immovable properties must be expropriated by the relevant administrations within the budget possibilities, or changes must be made to remove the restriction that would prevent the use of property rights.
As it is clearly written in Annex-1 article No. 2942, if the administration does not take the necessary actions within the five-year period, the real estate is legally confiscated. The concept of legal seizure corresponds to the concept of seizure without expropriation in terms of expropriation law.
EXCEEDING THE DOP (REGULATION PARTNERSHIP SHARE) DUTATION REQUIRED BY THE ZONING LAW NO. 3194
Law No. 3194 Article 18 – To combine the plots and lands with or without buildings within the zoning boundaries with each other, with road surpluses, with places belonging to public institutions or municipalities, and to divide them into islands or parcels in accordance with the zoning plan, without requiring the consent of the owners or other rights holders. Municipalities are authorized to distribute the rights to the beneficiaries according to the principles of detached, shared or condominium ownership and to carry out ex officio registration procedures. If the places mentioned are outside the municipality and adjacent areas, the above-mentioned powers are exercised by the governorship. 6685 During the distribution of lands and plots regulated by municipalities or governorships, sufficient areas from their surface areas can be deducted as “regulatory partnership share” in return for the establishment of public service areas necessary for the population in the regulation area to continue their urban activities and the increase in value resulting from the regulation. However, the regulation partnership shares to be taken in accordance with this article cannot exceed forty-five percent of the surface area of the lands and plots subject to regulation before the regulation. According to the provisions of this article, it is essential not to obtain regulatory partnership shares from any parcel more than once. However, in case of an increase in the construction conditions and population due to any zoning plan decision, additional regulation partnership share deduction can be made from the increased parcels to complete the regulation partnership share rate in the first application up to 45%, provided that the value resulting from the application is not less than the previous value.
In accordance with the provision of law, during the distribution of lands or plots subject to regulation by municipalities or governorships, a sufficient amount of land or plots may be deducted from their surface area. In accordance with the provision of the said article, this deduction cannot exceed 45% of the previous surface area of the real estate. If there is a DOP deduction above 45%, there will be a legal seizure of the real estate.
RIGHTS OF THE OWNER IN CASE OF LEGAL SEIZURE
1-Right to request barter/exchange: Law No. 2942 Article 26 – “If the owner of the property accepts, instead of the expropriation fee, an amount that will partially or completely cover this cost may be given from the administration’s immovable properties that are not allocated to public service. The value of the immovable property to be given in lieu of the expropriation fee is determined by the administration’s tender commission or by a commission established for this purpose. The difference between the real estate prices is covered by the parties in cash. However, the value of the immovable property to be given by the administration cannot exceed twenty percent of the expropriation value.
2-Right to Sue:The owner whose authority to dispose of her privately owned immovable property has been limited as a result of legal confiscation may file a full jurisdiction lawsuit in the Administrative Jurisdiction under the provisions of confiscation without expropriation.
COURT IN CHARGE
If no action has been taken by the administration for the real estate on which property rights are restricted as a result of the Zoning Applications, the case is filed in the administrative judiciary. However, in case there is even a very small intervention on the real estate within the scope of the zoning plan (For example, placing two benches on a real estate allocated as a parking area), the case is filed in the judicial judiciary. opens.
Written by: Av.Ş.İrem TANDOĞAR EKİNCİ