Expropriation and Lawsuits of Seizure without Expropriation2019, Erdemir & Özmen Attorney Partnership
Expropriation and Lawsuits of Seizure without Expropriation
The concept of expropriation is set forth in the article 46 of the Constitution; and accordingly, it is adopted that the State and public legal entities are entitled, in cases where the public interest requires, to expropriate a privately-owned real estate wholly or in part, provided that the actual compensation is paid in advance. In other words, expropriation is a way which enables a real estate in private ownership to be included into public properties, regardless of whether the owner is willing. However, as experienced frequently in our Country, the State sometimes interferes with the rights to property being held by persons and/or entities that bear the title of “owner a on real estate belonging to either a real person or a legal entity” and thus, the State seizes such real estate and/or allocates such real estate for the benefit of the public, without performing expropriation procedures.
Such interference with the right to property may take place as seizure of a real estate without completion of expropriation procedures or as de facto or zoning implementations. An administration’s such interference in this way, which is in violation of the procedures and the laws, is defined as seizure without expropriation. Against this unlawful act committed by the administration, if the real estate owner will request for the prevention of the unjust interference committed by the administration, actio negatoria comes into question, or in case the real estate owner waives of the real estate ownership in favor of the administration and thus, chooses the determination of the real estate’s value and payment of this value to the real estate owner, a lawsuit of seizure without expropriation comes into question.
What is the difference between de facto seizure and legal seizure?
The difference between legal seizure and de facto seizure is of importance particularly in respect of what branch of judiciary shall have jurisdiction over the dispute. Accordingly, a seizure, committed actually by the administration on a real estate without performing any legal transaction thereon, refers to de facto seizure; and this act committed by the administration bears the characteristics of a tort. As a rule, civil courts have jurisdiction over such act which is of tort nature. (The Civil Courts of First Instance have jurisdiction over de facto seizures, and the Civil Court of First Instance situated at the location of the real estate is the competent court.)
However, the administration’s act which takes place as legal seizure of the real estate refers to and administrative act that occurs in result of an administrative transaction. In our legal system, since the administrative judiciary has jurisdiction over objections related to an administrative act or transaction, the administrative courts shall have jurisdiction over such disputes.
What can the relevant condominium owner do against seizure without expropriation?
The temporary article 6 of the Expropriation Law contains procedural provisions regarding the price determination for the real estates allocated to a public service without expropriation. The owner, whose real estate is seized on a de facto basis by the administration without expropriation, may claim payment of the value pertaining to the seized one and file the relevant lawsuit for this purpose. In practice, this lawsuit is called as Lawsuit for Price or Lawsuit for Damages.
Thus, the following provision is introduced by the temporary article added into Law subsequently: “As regards the resources or real estates on which a facility has been constructed after they were allocated for a need related to public interest or which have been actually allocated for a public service between 9.10.1956 and 4.11.1983 although their expropriation procedures have not been completed or although they have not been expropriated at all; the claims arising from the right to property, due to their de facto seizures in whole or in part or by establishing easement right thereon, without the owner’s consent, and the price determinations in case the price is requested, and the other transactions shall be handled pursuant to the provisions of this article”.
Statutory periods in lawsuits of seizure without expropriation
For a person whose real estate is exposed to the transactions related to seizure without expropriation, since his private ownership is violated, such lawsuit of seizure without expropriation is not, as a rule, subject to a statutory period, and the right holder may at any time take legal action against the seizure without expropriation. (Since the 20 years’ statutory period referred to in the article 38 of the Expropriation Law was annulled by the Constitutional Court, this period ceased to have effect.)
May movable properties be expropriated?
Expropriation of movable properties only comes into question in extraordinary situations. Accordingly, certain conditions should take place for expropriation of movable properties. These conditions are as follows:
- In extraordinary situations, the purpose should be to meet the needs of the disaster victims or survivors,
- There should be a legal basis (These matters are regulated in detail by the State of Emergency Law numbered 2935.)
- There should be an administrative decision (In this case, the provincial governor or the state of emergency regional governor is the authority competent to take such decision for expropriation of movables.)
- The value of the property should be paid by the administration.
Pursuant to the above, the expropriation of movable properties is resorted to only in extraordinary periods and within extraordinary conditions.
In conclusion, expropriation represents a procedure in result of which the State terminates private ownership for public interest purposes, without the owner’s consent. However; in some cases, the administrations resort to seize a privately-owned real estate without a legal basis or without expropriating. This circumstance is called as seizure without expropriation.
A real estate owner, whose real estate is seized without expropriation, may file a lawsuit for the price determination or also file an actio negatoria lawsuit in civil jurisdiction, for prevention of this unlawful attack on his right to property.