Expropriation Without Compensation

kamulaştırmasız el atma
18 August 2023
1. Overview
Expropriation without compensation refers to a situation in which the administration, without adhering to the expropriation procedures, unlawfully seizes property by limiting the ownership rights of private property. In a formal expropriation procedure, the administration follows the legal procedures set forth in the Expropriation Law, paying the property owner the value of the expropriated property either in a lump sum or in installments. However, in cases of expropriation without compensation, the administration takes ownership of the property without paying any compensation to the owner through an act or legal process.
2. Actual Seizure
Actual seizure occurs when the administration takes possession of a privately owned property (such as land or a plot) without complying with expropriation procedures, either partially or entirely, by physically transferring possession of the property to itself for public benefit, without making any payment to the property owner. The property owner’s right to ownership is unlawfully restricted, either partially or fully, by the administration.
According to established case law from the Dispute Court and the Court of Appeals, judicial jurisdiction is considered competent in cases of actual seizure. The conditions that must be met for actual seizure to be considered have been outlined as follows:
  • The administration must occupy privately owned real estate,
  • The occupation must be continuous,
  • The occupation must be for the purpose of using the property for public service,
  • The occupation must be contrary to the principles set forth in the expropriation process regulated by the Expropriation Law and other relevant legal frameworks.
If the administration seizes a property without following the expropriation process, lawsuits can be filed to prevent expropriation without compensation, to claim compensation for illegal seizure, and for the restitution of the property.
3. Legal Seizure
Legal seizure occurs when the administration restricts the ownership, use, and enjoyment rights of the property owner by altering the zoning plans for a privately owned property, for the purpose of public benefit.
To establish that legal seizure has occurred, a five-year period must elapse from the date the zoning plan is finalized, during which no expropriation procedure has been carried out and no compensation has been paid for the property under the Expropriation Law and the Zoning Law.
In cases of legal seizure, an action for judicial review can be filed in administrative courts, and a full legal claim can be made in the administrative court.
Legal seizure can be identified when the administration, without physically occupying the property, alters the zoning plan by designating the property as a historical site, park, recreational area, or school zone, thereby preventing the owner from fully exercising their ownership rights. Even though the administration has not physically seized the property, the owner’s right to use and control their property is hindered.
Before the Constitutional Court’s ruling on March 28, 2018 (Case No. 2016/19 E. and 2017/41 K.), the Zoning Law’s Article 10, which stipulated that the administration must prepare a five-year zoning plan within three months to implement zoning regulations, was repealed. However, the provision regarding the five-year limitation for filing lawsuits based on legal seizure remains intact. In light of this, when filing lawsuits based on legal seizure, it is advisable to wait for at least this three-month period to avoid potential loss of rights.
4. Lawsuit for Prevention of Expropriation Without Compensation
The lawsuit for preventing illegal seizure is regulated under Article 683, Paragraph 2 of the Turkish Civil Code:
“The owner may file a lawsuit for the return of the property against anyone who unlawfully possesses it, and may also file a lawsuit to prevent any unlawful seizure.”
If the property owner’s ability to exercise their ownership rights is obstructed, a lawsuit can be filed for the prevention of unlawful interference, also known as the action to prevent illegal seizure.
The protected interest in such a lawsuit is the property owner’s right to ownership. This type of lawsuit can be filed if the owner’s right to use or enjoy the property is prevented. Additionally, limited real rights holders such as usufruct or right of use holders can file this lawsuit if their rights are violated.
If a continuous unlawful interference occurs with movable or immovable property, the property owner can request the cessation of the unlawful interference through the lawsuit. The lawsuit can also include a request for the demolition of any structure unlawfully erected due to the interference and for compensation for the damage caused. Moreover, a claim for demolition may be made, requesting the removal of any structure unlawfully placed on the property.
There is no statute of limitations or prescription period for filing a lawsuit to prevent unlawful seizure. As long as the unlawful interference continues, the lawsuit can be filed. The competent court for such lawsuits is the civil court of first instance.
5. Lawsuit for the Collection of Compensation for Expropriated Property Without Compensation
In lawsuits for the collection of compensation for property unlawfully seized without compensation, the administration is required to pay the value of the property to the property owner. This occurs when the administration unlawfully seizes the property without following the legal expropriation procedures. The administration is obliged to pay compensation according to the provisions of the Expropriation Law, even if the expropriation process is not followed.
6. Claims for Ecrimisil in Expropriation Without Compensation Lawsuits
Ecrimisil refers to compensation for unlawful occupation. The property owner may seek compensation from those who unlawfully occupy or seize the property in bad faith. While the Expropriation Law does not specifically address ecrimisil claims, the Court of Appeals has set precedent through its rulings.
According to the Supreme Court’s decision on March 8, 1950 (22/4), unlawful occupation is not considered to be comparable to a rental agreement established by mutual consent between the parties; rather, it is seen as an unlawful act that requires compensation for the resulting damages.
The Court of Appeals Civil General Assembly’s decision dated February 25, 2004 (2004/1-120-96) defines the scope of ecrimisil as including both direct damage resulting from unlawful occupation and the deprivation of the benefits that the property owner or possessor would have otherwise enjoyed.
Ecrimisil claims, since they are not directly related to the ownership rights, are subject to a five-year statute of limitations. Therefore, claims can only be made for the past five years regarding ecrimisil.
7. Conciliation Requirement in Cases of Expropriation Without Compensation
According to the temporary Article 6 of the Expropriation Law, regarding actual expropriations carried out between October 9, 1956, and November 4, 1983, the conciliation procedure is a prerequisite for filing a lawsuit.