How to Object to Cadastral Determination in Turkey?

Lawsuit Against Cadastral Determination

Cadastre is the process of determining the location, area, value, and rights of real estate in a country, mapping them, and recording them in official documents. The ultimate goal of this process is to create the land registry as stipulated by the Turkish Civil Code. Cadastre Law No. 3402, Article 1, defines the purpose of cadastre as “determining the boundaries of real estate on land and maps and establishing their legal status” in Turkey.

Cadastral works are carried out by the cadastre directorate. Work areas are generally determined as villages and neighborhoods, but can also be created differently from administrative boundaries. The cadastral team conducts on-site investigations to determine the boundaries of real estate and identify rights holders. As a result of these operations, a cadastral record is prepared for each property.

Filing and Process of Lawsuit Against Cadastral Determination

After the cadastral record is prepared, the cadastre directorate prepares posting lists and announces them for 30 days. During this period, those who want to object to the determinations made can file a lawsuit in the cadastral court. This lawsuit is called “Lawsuit Against Cadastral Determination” in the Turkish Legal System.

Point to Note: After the posting announcement period expires, the boundaries and determinations of cadastral records for which no lawsuit has been filed become final. Therefore, it is of great importance for those who want to object not to miss this 30-day period.

Subject and Parties of the Lawsuit

Lawsuits related to the determination may be about the area determined during the boundary determination or about the claim of ownership. The plaintiff files a lawsuit claiming that the determination made during the cadastral determination is not correct (that the owner was incorrectly identified, the area of the property was incorrectly determined, etc.).

Example: If a person notices that a land they think belongs to them has been determined to belong to their neighbor, they can file an objection lawsuit against this determination.

The parties to the lawsuit should be as follows:

• Plaintiff: The person objecting to the determination
• Defendant: The determined owner (if deceased, their heirs)

Exception: If the determined owner cannot be identified, according to Law No. 3561, the highest local financial officer is appointed as a trustee, and the lawsuit is filed against this trustee.

In the decision of the 16th Civil Chamber of the Court of Cassation, File No. 2016/13240, Decision No. 2020/128, it was stated that “In lawsuits against cadastral determination, the lawsuit must be directed to the determined owners, and if the determined owners are deceased, to their heirs, and all heirs must be included in the lawsuit. Ensuring the formation of parties is a condition of the lawsuit, and the merits of the case cannot be entered without fulfilling this condition.”

Collection and Evaluation of Evidence

In lawsuits against cadastral determination, the collection and evaluation of evidence is of great importance. The court collects and examines the following evidence:

• Original cadastral records
• Certified copies of cadastral determination records of neighboring parcels
• Land registry records or tax records that the plaintiff relies on
• Evidence related to possession claims, if any
• Inheritance certificates (when necessary)
• Deeds (containing purchase, donation, etc.)

Point to Note: The court collects evidence ex officio. Especially in cases where the owner’s column is left blank (Cadastre Law No. 3402, Articles 10 and 27), the cadastral judge is obliged to create a registry and should collect evidence on their own.

Site Inspection and Expert Examination

In lawsuits against cadastral determination, it is mandatory to conduct a site inspection and have an expert examination. The points to be considered during the site inspection are as follows:

• Application of land registry records: If there is a land registry record relied upon, this record should be applied according to the procedure written in the Law. If there is a map, plan, and sketch of the record, application should be made in accordance with Article 20/A of Law No. 3402.
• Application of tax records: If tax records are relied upon, each boundary written in the record should be asked about and determined.
• Possession examination: If there is a possession claim, possession from the period 20 years before the cadastral determination should be investigated.
• Expert and witness statements: Local experts and witnesses must be heard at the property site.

Example: As stated in the decision of the 16th Civil Chamber of the Court of Cassation, File No. 2016/16910, Decision No. 2020/773, “Due to the fact that the lawsuit is related to the property itself, witnesses should have been heard at the property site, but their statements were taken at the hearing contrary to procedure.”

• Technical expert report: A report that is suitable for monitoring and supervising the site inspection should be obtained.

Exception: In disputes related to places of public use such as pastures and plateaus, local experts who are as old as possible and impartial, residing in neighboring villages, should be heard on the issue of possession.

Special Situations and Points to Consider

1. Acquisition Through Non-Title Ways: Article 13/B-b of the Cadastre Law No. 3402 recognizes the value of uncontested, continuous possession in the capacity of owner for those who have purchased property externally through non-title ways.

Example: In the decision of the 16th Civil Chamber of the Court of Cassation, File No. 2015/19171, Decision No. 2018/452, it was stated that “It was determined that the plaintiff Mustafa Sezer was in possession of the disputed part of the property as of the determination day through inheritance and division from his testator, and the conditions of Article 13/B-b of Law No. 3402 were fulfilled in his favor.”

2. Division Claim: If there is a claim that properties inherited from a common testator have been divided, it should be investigated whether property was allocated to all heirs through division and whether all heirs participated in the division.

3. Pasture and Plateau Disputes: The ownership of such properties belongs to the Treasury, while the right of use belongs to the village or town people. Lawsuits should be directed to both the Treasury, which is the owner of the property right, and the public legal entity that has the right to use.

Point to Note: According to Law No. 6360, for properties within the boundaries of metropolitan municipalities, it is mandatory to include the district municipality and the metropolitan municipality in the lawsuit.

4. Land Distribution Works According to Law No. 4753: In such lawsuits, distribution maps should be overlaid with the cadastral map and applied to the ground, determining whether the property was subjected to distribution as a result of the allocation.

5. Places That Cannot Be Acquired Through Possession: It should be considered that pastures, plateaus, winter quarters, forests, streams, rivers and ancient roads under the rule and disposal of the State, cultural-natural assets, rocky, stony, bushy properties, quarries, piers and gediks, properties within the coastal edge line cannot be subject to private ownership.

Rendering the Verdict and Notification of the Decision

The court reaches a decision by evaluating all the evidence it has collected. The points to be considered when rendering the verdict are as follows:

• A clear and enforceable registry should be created.
• It should be unequivocally shown in the verdict for whom or which persons and with which shares the property is decided to be registered.
• A decision should be made and a registry should be created for all properties subject to the lawsuit.

Example: As stated in the decision of the 16th Civil Chamber of the Court of Cassation, File No. 2016/17949, Decision No. 2020/1689, for properties of public use such as pastures and plateaus, the decision should be made as “the disputed property should be bounded and registered in its special registry as pasture in accordance with Article 16/B of Law No. 3402.”

The final decision rendered should be duly notified to all parties of the lawsuit. Errors made by postal officers in the application of Article 10 and Articles 21/1 and 21/2 of Law No. 7201 should be supervised by the court judge.

Conclusion

The lawsuit against cadastral determination is an important part of real estate property law in Turkey. Proper conduct of these lawsuits is of great importance in terms of protecting property rights and creating a healthy land registry. Courts need to pay attention to the above-mentioned points, conduct a meticulous examination, and render fair decisions. Particularly, the care to be shown in the stages of collecting evidence, conducting site inspections, expert examinations, and hearing witnesses will ensure the healthy conclusion of the lawsuits.

Due to the unique features and complexity of lawsuits against cadastral determination, the presence of lawyers specialized in this field is also of great importance. Additionally, citizens should be encouraged to be informed about these processes and to seek legal assistance when necessary in order to protect their rights during and after cadastral works.

 

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