Confiscation without expropriation

September 19, 2015

In accordance with the Constitution of Republic of Turkey, Turkish Civil Code and other legislation, everybody has right to property and this right can only be restricted by law and for the public interest. In this context, in accordance with the Constitution of Republic of Turkey; the State and public entities are entitled, in case the public interest requires and provided that the actual compensation is paid in advance, to wholly or partly expropriate privately owned immovable property and establish administrative servitude, in accordance with the principles and procedures specified by law.

Thus, in case public entities with expropriation powers do not expropriate in accordance with principles and procedures specified by the law; and they confiscate immovable property without any legal procedure related to expropriation, there would be the confiscation without expropriation. The confiscation without expropriation may be either legal or de facto.

In practice, confiscation without expropriation generally occurs as de facto confiscation. Public entities with expropriation powers unlawfully and de facto interfere immovable property without taking any legal decision regarding expropriation and/or following the procedure in relation to expropriation specified in legislation.  

Legal confiscation may be defined as interference to immovable property of a person by not actually applying zoning plans made by municipalities and not expropriating in accordance with these plans. The origin of this concept is misuse of expropriation power of municipalities arising from the Article 10 of Zoning Law numbered 3194. Pursuant to Article 10 of Zoning Law, municipalities must prepare, within three months from the date of entry into force of the zoning plans, five-year zoning programs to implement such plans. The public entities must expropriate the areas allocated for public service facilities within the limits of five-year zoning programs and within the period of the program. However, municipalities don’t expropriate related areas for different reasons; and as a result of this non expropriation process, immovable property owner’s power of disposition is greatly diminished and enjoying the right to property becomes almost impossible on immovable property, shown and qualified in a different nature and quality in zoning plan than it has actually (e.g., a house shown and qualified as cultural center in zoning plan).

A decision of Turkish Supreme Court has been a milestone in this matter. Until this decision, immovable property owners had no legal protection against the interference to ownership via zoning plans. However, with this decision, immovable property owners have been able to claim for compensation based on value of their immovable property. Indeed, until aforementioned decision, Turkish Supreme Court took into consideration only the claims arising out from de facto confiscations. However, following this decision, Turkish Supreme Court ruled that, in addition to de facto confiscation, the demands arising out from legal confiscation are also legally protected interests, in terms of immovable property owners and that non-performance of expropriation procedures needed to be performed within five years would lead to a claim for compensation based on value of immovable property.

According to Turkish Supreme Court, public entity which has not performed expropriation due to the fact that zoning plan which has not been included in zoning program for long years is not put into practice has greatly diminished the owner’s power of disposition for an indefinite period, thus, the owner has been unable to properly enjoy his right to property and this right is prevented without any legal ground. Thus, public entity has interfered immovable property by remaining passive and silent and not carrying out any procedure related to expropriation. Consequently, immovable property owners shall have right to claim for value of their immovable property from public entity.

 

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