Turkish
WHAT IS CONFUSATION WITHOUT EXPROPRIATION?
The concept of Confiscation Without Expropriation was mentioned for the first time in the Supreme Court of Appeals Jurisprudence Unification General Assembly Decision dated 16.05.1956 and numbered E: 1956/1 K: 1956/6. Accordingly, without any expropriation process; It is defined as the administration’s actual intervention in privately owned real estate in a way that restricts the property rights of individuals. In its decision on the annulment of Article 38 of the Expropriation Law No. 2942, the Constitutional Court; It is defined as “construction of a bridge, road or any facility on a property for public benefit by public legal entities without expropriating in any way” as seizure without expropriation.
LEGAL SEIZURE
In one of its decisions, the General Assembly of the Supreme Court of Appeals described such situations in which the property right is restricted by a legal transaction without relying on legal grounds, even if there is no actual seizure, as confiscation without expropriation.As stated in the decision of the Supreme Court of Appeals General Assembly on the issue of whether the lawsuit to be filed to compensate for the damage caused by the violation of rights caused by the development plans that were not included in the program for many years is resolved in accordance with the provisions of confiscation without expropriation today, if the obstruction of the use of property rights as specified in the decision is accepted as confiscation without expropriation. ; The lawsuits to be filed, the judicial branch where the case will be heard and the procedures to be followed in the case must be resolved in the same direction as the dispute that arises in the event of actual seizure.The Court of Disputes has determined the administrative court to be the competent jurisdiction for disputes that will violate the property rights of immovable properties whose disposal is legally restricted due to zoning plans that have not been included in the program for a long time.
In addition, in our opinion, what should be understood from the concept of legal seizure are the situations in which the limitation of the property right stipulated in Article 35 of the Constitution is determined by law. To give an example, Zoning Law art. In accordance with Article 18, Arrangement Partnership Share (DOP) is deducted from the parcels of the relevant parties in the land and plot arrangement process. This situation is a legal seizure that limits the essence of the property right based on the law.
ACTUAL SEIZURE
The administration’s seizure of a real estate without expropriation by not carrying out the expropriation process in accordance with the procedure also constitutes a de facto way. In the act of de facto seizure of real estate by the administration without expropriation, the administrative nature of the action is lost and an action by the administration that constitutes a clear and unfair act and a damage resulting from this action occurs.
In Article 38 of the Expropriation Law No. 2942; While the expropriation has been made but the procedures have not been completed or the expropriation has never been carried out, the right of the owner, possessor or heirs of the immovable property on which an immovable property has been allocated for public service or allocated to a need for the public interest and any kind of lawsuit regarding this immovable property will expire after twenty years, and this twenty-year period will expire. It was stipulated that it would start from the date of confiscation. However, the Constitutional Court annulled this provision, finding it unconstitutional. As a result of this annulment decision, the 20-year limitation period has been eliminated.
IMMEDIATE SEIZURE
In its decision dated 19.12.2013 and numbered 2013/817 of the 1st Section of the Constitutional Court, at the end of a long trial in the case filed for the determination of the expropriation price, it was accepted that the award of the price determined as of the date of the case was a violation of the right to property guaranteed in Article 35 of the Constitution. It was stated that compensation should be paid to the owner.
Taking this violation of rights into account, the legislator also stated in the paragraph added to Article 10 of Law No. 2942 with Article 6 of Law No. 6459 (effective date 30.04.2013) that if the lawsuit filed for the determination of the expropriation price is not concluded within four months, the determined price will be paid as of the end of this period. introduced a regulation regarding the application of interest.
The urgent seizure case filed according to Article 27 of Law No. 2942 is a type of evidence determination, and there is no final decision resolving the agreement, and the administration must file a lawsuit within a reasonable time.
Otherwise, in accordance with Article 46 of the Constitution and Article 3 of the Expropriation Law, since it is understood that the real expropriation fee was seized without paying in advance and in cash, the owner of the real estate always has the right to file a lawsuit against the administration for the collection of the real estate price due to seizure without expropriation.
Written by: Lawyer İrem TANDOĞAR EKİNCİ