Turkish
WHAT IS EXPROPRIATION?
Expropriation is one of the most frequently used methods by administrations to obtain the real estate they need while performing the public services they undertake. With the expropriation process, the State and public legal entities terminate the ownership of privately owned immovable properties without the consent of the owners of these immovable properties, when required by the public interest. In this way, there is actually a serious interference with the right to property protected by the Constitution.
Although expropriation is a method that must be resorted to for the public interest, in order to prevent this process from causing unfair and severe consequences for the persons whose real estate is expropriated, it must be carried out in accordance with the procedure prescribed by law and the real value of the expropriated real estate must be paid to the real estate owners. Accepting the contrary will cause injustice by disrupting the balance between public interest and private benefit and will seriously undermine the citizens’ trust in the state.
For this reason, determining the real value of real estate in expropriation is of great importance. In this context, in order to ensure that the expropriation value of immovable properties can be determined fairly, the methods and principles to be applied in determining the price are determined in detail in the Expropriation Law; In cases where there is no sufficient regulation in the law or the existing regulation needs interpretation, the issue is tried to be resolved with the jurisprudence of the Supreme Court.
DETERMINATION OF REAL PROPERTY PRICE ACCORDING TO THE PROVISIONS OF LAW NO. 2942
Article 10 of Law No. 2942 – If the parties cannot agree on the price at the hearing held by the court, the judge appoints a date for discovery within ten days at the latest and a hearing date for thirty days later, and carries out an on-site survey to determine the value of the immovable property, through the experts listed in Article 15 and in the presence of all relevant parties. . In order to ensure that the headman of the village or neighborhood to which the immovable property is located is present during the survey, an invitation is issued to the headman and his statement is taken by ensuring that he is present during the survey. Experts, taking into account the statements of the parties and other relevant parties, submit their reports stating the value of the immovable property in line with the principles in Article 11 to the court within fifteen days.
As can be clearly understood from the provision of the article, the value of the immovable property in expropriation cases is determined by discovery by the court together with the evidence presented by the owners. Calculations are made using two methods in the reports submitted by experts regarding the value of the real estate.
I- CALCULATION IF THE PROPERTY HAS FIELD QUALIFICATION
Law No. 2942 Principles of determination of expropriation cost: (1)(4) Article 11 – (Amended: 24/4/2001 – 4650/6 art.) The expert committee to be formed in accordance with Article 15 will be appointed by a court committee to the location of the immovable property or resource to be expropriated. After going together and listening to the relevant parties present, the immovable property or resource; a) Genus and species, b) Area. c) All qualities and elements that may affect its value and the separate value of each element, d) Tax declaration, if any, e) Valuation assessments made by the official authorities on the date of expropriation, f) In the case of lands, the net income of the immovable property or resource (…) (2) if used as it is and according to its location and conditions. (2) g) In the case of lands, The sales value compared to comparable sales that did not have a specific purpose before the expropriation day, h) In buildings, (…) (3) official unit prices and structure cost calculations and depreciation share, i) Other objective measures that will be effective in determining the price, provided that the effect of each measure is explained, Principle They shall determine the value of the immovable property based on a reasoned evaluation report in accordance with the valuation standards accepted by the Capital Markets Board, by stating the answers to all these elements separately in the report they will prepare and taking into account the statements of the relevant parties.
As stated in the article, two criteria are taken as basis when calculating the value of the field property. These are;
1- The net income that an immovable property or resource on land would generate if used as it is and according to its location and conditions.
2- These are objective measures that will affect the value of the real estate.
1- INCOME METHOD TO BE APPLIED IN DETERMINING THE VALUE OF FIELD PROPERTIES
GElir Method is one of the most widely used methods in the valuation of agricultural lands. This method is also called “income capitalization method”, “value-in-use method” and “analytical method”. According to the income method, the value of a land is determined by accumulating all future income from that land at the time of valuation, or in technical terms, by capitalizing the average income of the land according to the current interest rate. In the income method, the basis is the income of the property being valued. In this method, the income in question is the net income of the land, in other words, the net rent of the land. The following formula is generally used in valuing an agricultural land using the income method. In this formula, land value, net income of the land (land rent), and capitalization rate are used. The capitalization rate used in valuation according to the income method is the interest rate of the capital invested in the land. When a sufficient number of land sales prices and their net income are known, the capitalization rate can be determined.
In the calculation made with the Income Method, the alternation tables prepared every year by the Provincial and District Directorates of Agriculture where the real estate is located and sent to the courts are used.
Here, the m2 of the real estate is determined as 61.53 TL. In practice, this value is called the bare m2 value of the real estate. In accordance with the provision of Article 11 of Law No. 2942, the value of the real estate is calculated by applying a % rate increase to this m2 value, taking into account objective criteria that will affect the value of the real estate.
Bare value 61.53 TL. Considering that 200% objective value is applied to m2, it is 184.59 TL. In this way, the real expropriation value of the real estate is found. In this sense, objective value is extremely important in evaluating lands.
II- CALCULATION METHOD TO BE APPLIED TO REAL ESTATES THAT HAVE THE LAND QUALIFICATION
According to the Expropriation Law No. 2942, evaluation for immovable properties in the nature of land. Article 11- g) For lands, sales values are taken into account according to comparable sales that do not have a specific purpose before the expropriation day.
According to this provision, the purchase and sale values of immovable properties that were not built for private purposes before the expropriation date are investigated. The courts write a warrant to the Provincial or District Land Registry Office where the real estate is located, and the official title deeds of sales of sales that are not made for special purposes in the region where the real estate is located are summoned. Although this issue is made ex officio by the court, the parties may also submit the title deed information they wish to the court.
In practice, in accordance with the Decision of the Council of Ministers dated 28.2.1983 and numbered 1983/6122, which was partially adopted by the Supreme Court, in order for the immovable property to be considered as land, it must be located within the borders of the municipality or within the borders of the adjacent area, the immovable property must be settled or brought by the municipality and other public institutions because it is residential. It must be among the places that benefit from municipal and infrastructure services such as roads, water, electricity, transportation, garbage collection, sewerage and lighting. According to the Supreme Court, immovable properties that are included in the 1/1000 zoning plan or that are not included in the 1/1000 zoning plan but benefit from roads, water, electricity, garbage collection and similar services are considered as land.
What are sales that are not made for a specific purpose that cannot be taken as a precedent?
Since it is stated in subparagraph (g) of the first paragraph of Article 11 of the Expropriation Law that the expropriation price for lands will be determined according to comparable sales that do not have a specific purpose before the expropriation day; It is not possible to accept special purpose sales as precedent. What is meant by the expression “consecutive sale without a specific purpose” is not clearly written in the law.
For this reason, the issue of what kind of sales will be considered special purpose sales has been shaped by the Supreme Court jurisprudence. The Supreme Court is generally of the opinion that transactions that are not based on a real will to sell and sales transactions that are commercial in nature due to the field of activity of the buyer and seller cannot be taken as a precedent. In this context, purchases made by banks and similar institutions for commercial purposes and competition are not considered precedent. Likewise, sales made to joint stock and limited companies or sales made by these companies among themselves are considered as special purpose sales by the Supreme Court and are not accepted as a precedent. Similarly, real estate with a gas station on it cannot be taken as a precedent.
In conclusion ; In addition to both methods in determining the value of land or a real estate that has the characteristics of land, in line with Article 15 of Law No. 2942, one of the experts to be appointed by the court to determine the value of the real estate must be selected among the real estate appraisers authorized in accordance with the Capital Markets Law No. 6362 for real estate development. According to this provision. The selected Real Estate Appraisal Expert must determine the value within the framework of the criteria of Article 11 of the law and the Real Estate Valuation Principles in order to determine the real value of the real estate according to the free market prices.
Written by: Lawyer İrem TANDOĞAR EKİNCİ