The Expropriation Process and Procedures in Turkish Law

WHAT IS EXPROPRIATION?

Expropriation is the process where the ownership of immovable properties owned by real and private legal persons is transferred to the administration based on objective principles, either by paying their prices in cash and in advance or in equal installments if specified by law, in cases required for public interest.

WHAT ARE THE CONDITIONS FOR EXPROPRIATION?

1. Sufficient Appropriation Must Be Secured.

The administration requesting expropriation must have sufficient expropriation funds in its annual budget and have secured an amount that can cover the expropriation cost in advance.

2. There Must Be a Need for a Public Service on the Immovable Property.

3. The Expropriating Administration Must Be Responsible for the Service.

The establishment laws of the administrations list the duties and authorities of the administration. It is required that the administration must use the immovable property subject to expropriation to fulfill its legal obligations and must act proportionally by determining how much and what kind of use is needed in the service. If establishing an easement right is sufficient, transferring ownership should not be requested.

4. The Administration Must Be Authorized to Expropriate.

5. The Immovable Property Must Be Within the Geographical Jurisdiction of the Administration.

6. The Expropriation Cost Must Be Paid.

 

WHAT IS THE ADMINISTRATIVE PROCESS IN EXPROPRIATION?

What is the Public Interest Decision?

The public interest decision is an abstract concept that, when evaluated qualitatively, expresses that the reason for expropriation arises from the social need for the service. The public interest decision is one of the indispensable conditions for limiting property rights and plays a fundamental role in the expropriation process because it is the sole purpose of the administration’s actions and procedures.

Who Are Authorized to Make Public Interest Decisions?

According to Article 5 of the Expropriation Law No. 2942 (“Law No. 2942”), public interest decisions can be made by public administrations and public legal entities, public institutions for their benefit, and for the benefit of real persons under three main headings.

A- Public administrations and public legal entities;

– For expropriations made for the purposes specified in the second paragraph of Article 3 of the Expropriation Law No. 2942, the relevant ministry,

– For expropriations for the benefit of villages, the village council,

– For expropriations for the benefit of municipalities, the municipal council,

– For expropriations for the benefit of the provincial special administration, the provincial permanent committee,

– For expropriations for the benefit of the state, the provincial administrative committee,

– For expropriations for the benefit of the Higher Education Council, the Higher Education Council,

– For expropriations for the benefit of universities, the Turkish Radio – Television Corporation, the Atatürk Culture, Language, and History High Institution, the boards of directors,

– For expropriations for the benefit of multiple villages and municipalities within the same district, the district administrative committee,

– For expropriations for the benefit of villages and municipalities belonging to multiple districts within a province, the provincial administrative committee,

– For expropriations for the benefit of multiple public legal entities belonging to separate provinces, the President,

– For expropriations for the benefit of the state within the boundaries of multiple provinces, the President.

B- For expropriations for the benefit of public institutions; the board of directors or the administrative board, or in their absence, the authorized administrative bodies,

C- For expropriations for the benefit of real persons; for expropriations for the benefit of private legal persons; the board of directors or the administrative board, or in their absence, the authorized administrative bodies, upon the application of these persons or private legal persons, according to the services they are subject to control by the village, municipality, special administration, or ministry.

How Is the Public Interest Decision Approved?

The approval of the public interest decision taken by the authorized administration according to Article 5 of the Expropriation Law No. 2942 is mandatory to implement the decision and initiate the legal process. The rules for the approval of the public interest decision are explained in Article 6 of Law No. 2942 under three headings: decisions that are subject to approval, decisions that are not subject to approval, and cases where a public interest decision is not required.

A- Authorities authorized to approve the public interest decision;

– Decisions of village councils and municipal councils are approved by the district governor in districts and the governor in provincial centers,

– Decisions of district administrative committees, provincial permanent committees, and provincial administrative committees are approved by the governor,

– Decisions of university boards of directors are approved by the rector,

– Decisions of the Higher Education Council are approved by the chairman of the council,

– Decisions of the board of directors of the Turkish Radio – Television Corporation are approved by the general manager,

– Decisions of the board of directors of the Atatürk Culture, Language, and History High Institution are approved by the chairman of the High Institution,

– Decisions of the boards of directors or administrative boards or authorized administrative bodies of public institutions are approved by the minister they are subject to control,

– Decisions made for the benefit of real persons or private legal persons by the village, municipality, or special administration are approved by the governor.

B- Public interest decisions taken by the President or ministries do not require additional approval.

C- For services to be carried out according to an approved zoning plan or a special plan and project approved by the relevant ministries, an additional public interest decision and approval are not required. In such cases, a decision indicating the initiation of the expropriation process by the authorized executive body is taken.

What Are the Procedures to Be Carried Out Before the Expropriation Process and What Is an Administrative Annotation?

Once the public interest decision is taken by the authorized authority and the approval of the decision is secured according to the conditions mentioned above, the administrative process will continue, and the necessary procedures must be completed.

Determination of the Area or Source to Be Expropriated

The administration planning to expropriate will obtain the maps of the immovable properties planned for expropriation from the Cadastre Directorate following the approval of the public interest decision. If the immovable property is within a zoning plan, the zoning plan will also be requested from the municipality. Based on the obtained data, a scaled plan including the boundaries, area, and type of the immovable property to be expropriated will be prepared. If the immovable property is in an unplanned area without a zoning plan, map, or plan, the administration will prepare a scaled plan at the location of the immovable property.

Collection of Information About the Property Owner

The title deed records of the expropriated immovable property and the title deed holders are requested from the land registry office, and the population records of the title deed holders or their heirs, if any, are requested from the population office.

The latest property tax declaration for the immovable property is requested from the local municipality, and the addresses of the declarants are inquired.

The tax declarations and values of the immovable properties are requested from the local tax office. If there are no tax declarations and values for the immovable properties, a valuation to replace the declaration value is requested within a month.

Registration of the Expropriation to the Land Registry

The authorized administration performing the expropriation writes a memorandum to the land registry office requesting the annotation of the expropriation in the land register. The Land Registry Directorate is obliged to note “the decision to expropriate the immovable property has been made” in the special section of the expropriated immovable property’s register. However, this annotation in the land register does not prevent the disposition of the immovable property, but the Land Registry Directorate is obliged to notify the expropriating administration of any changes in the owner, ownership, or other real rights from the date of this annotation. The restriction on the disposition of the expropriated immovable property is regulated in Article 31 of the Expropriation Law No. 2942, which states that the transfer and assignment of the immovable property to another person will be prohibited after the notification, invitation, or announcement made according to Article 10 of the law. If the prohibition is not respected, a penalty of imprisonment and a fine starting from six months will be imposed according to Article 33 of Law No. 2942.

Finally, it is decreed that if the administration does not submit to the land registry office a document from the court indicating that the expropriation price has been determined and the registration is requested in the name of the administration within six months from the date of annotation, this annotation will be automatically deleted by the land registry office without the need for a request from the owner.

What Is the Purchase Method in Expropriation?

Establishment of a Valuation Commission

Following the approval

of the public interest decision for the immovable property to be expropriated and the completion of the pre-expropriation procedures and the annotation of the expropriation in the land register, the establishment of a valuation commission is required. This commission, consisting of at least three personnel within the administration and obtaining reports from institutions or organizations, and if necessary, utilizing information from the Chambers of Industry and Commerce and local real estate trading offices, will determine the estimated value of the immovable property. The commission will complete the valuation process and present this work to the relevant unit. The value determined by this commission is not binding and will only be used as a negotiation limit in the reconciliation meetings with the immovable property owner.

Establishment of a Reconciliation (Negotiation) Commission

To carry out the reconciliation procedures within the determined value, the administration will establish one or more reconciliation commissions consisting of at least three members within its body. This commission will act to carry out the purchase procedure without exceeding the determined value.

Invitation of the Owner to Reconciliation Meetings

The administration will notify the owner with a registered letter stating that it wants to purchase the immovable property, source, or easement right, decided to be expropriated, by paying the price in cash and through negotiation, or by exchange with another immovable property belonging to the administration. The owner is requested to apply to the administration within 15 days from the notification date of this letter. If the owner or authorized representative applies to the administration within fifteen days from the notification date of this letter, stating that they want to sell the immovable property subject to expropriation by negotiation and agreement or by exchange, negotiations will be held on the date determined by the commission. If an agreement is reached within the determined estimated value, a minute recording the agreement will be prepared, including all legal and factual characteristics of the immovable property, the expropriation price, the identity information of the owner, and the statements of acceptance for the registration or cancellation of the immovable properties in the title deed. This minute will be signed by the owner or authorized representative and the commission members. This minute will be considered the owner’s declaration of disposition and the legal reason for the registration in the name of the administration in the title deed. The administration will, within forty-five days from the date of the preparation of the agreement minute, provide the amount specified in the minute and register or cancel the immovable property in the name of the administration based on the administration’s notification and the letter stating that all encumbrances and rights on the immovable property before expropriation have been removed. The expropriation price will be paid to them after the registration or cancellation in the title deed. The immovable property, source, or easement right purchased or exchanged in this scope is considered to have been acquired by expropriation from the owner, and no objection lawsuits can be filed against this expropriation or its price.

THE JUDICIAL PROCESS IN EXPROPRIATION

Which Court is Authorized for the Determination of the Expropriation Price and Registration of the Immovable Property Case, and Who Are the Parties to the Case?

If negotiations or agreements cannot be reached with the owner after completing the preparation procedures specified in Law No. 2942, the administration will file a lawsuit at the Civil Court of First Instance where the immovable property is located to determine the value of the immovable property and register it in the name of the administration. This lawsuit will be heard by the simplified trial procedure. There is no doubt that the authorized court, according to Article 12 of the Code of Civil Procedure No. 6100 and Article 37 of the Expropriation Law No. 2942, is the Civil Court of First Instance in the place where the immovable property is located. Lawsuits for determining the value of the immovable property and its registration in the name of the administration will be filed by the administration against the owner or all owners if there are multiple owners. If the expropriation of unregistered immovable properties is in question, the possessors determined by the possession record should be shown as defendants. The plaintiff will attach the necessary documents to each copy of the lawsuit petition prepared more than the number of defendants:

– Public interest decision.

– Approval of the public interest decision if it is subject to approval by the competent authority.

– The title deed of the immovable property and the map showing the expropriated part. (Sketch)

– All information and documents about the owner.

– Notification documents and minutes indicating that the purchase method has been tried but no agreement has been reached.

– Possession records, prepared sketches, and minutes if the immovable property has not been cadastralized.

The court will carefully examine whether the submitted documents are prepared following the procedure and law and give a definite period to the administration to complete the deficiencies if any. If the documents are complete, a hearing date will be set no later than 30 days from the application date. Summons will be issued to the defendant or defendants, notifying them of the hearing date and warning them to submit all their defenses and evidence regarding the subject and value of the immovable property to the court in writing within ten days from the notification date. Summons will be issued by publication to the defendant owners who cannot be notified of the lawsuit petition and its annexes according to Article 28 of the Notification Law No. 7201.

If the parties are present in court, the judge will first invite the parties to agree on the price. If the parties agree on the price of the immovable property in court, the judge will accept the agreed price as the expropriation price and give the administration 15 days to deposit it in the bank specified in the notification attached to the lawsuit petition and adjourn the hearing for no more than 30 days. This period can be extended by the court only once if necessary. Upon submission of the bank receipt indicating that the expropriation price has been deposited in the name of the entitled person, the court will decide to register the immovable property in the name of the administration and pay the expropriation price to the entitled person. A certified copy of the court decision will be sent to the Land Registry Directorate and a copy to the bank with a letter stating the immediate payment of the money to the entitled person.

If the parties do not agree on the price or if the agreement invitation cannot be made due to their absence in the hearing, the judge will set an on-site inspection date within ten days and a hearing date for 30 days later. The judge will conduct an on-site inspection to determine the value of the immovable property with the assistance of experts listed in Article 15 and in the presence of all concerned parties. An invitation will be issued to the headman of the village or neighborhood where the immovable property is located to ensure their presence at the inspection, and the headman’s statement will be taken. The experts will consider the statements of the plaintiff administration, the defendant property owners, and other concerned parties and determine the value of the immovable property according to the principles in Article 11:

– The type and kind of the immovable property,

– Its area,

– All qualities and elements affecting its value and the separate value of each element,

– If any, its tax declaration,

– The official valuations made by the authorities at the expropriation date,

– In lands, its net income if used as it is according to its location and conditions at the expropriation date,

– In plots, its sale value according to non-specific purpose sales before the expropriation date,

– In buildings, the official unit prices, and construction cost calculations and depreciation,

– Other objective measures affecting the determination of the price,

The experts will submit their reports determining the value of the immovable property to the court within fifteen days. The court will notify the parties of this report without waiting for the hearing date. The judge will invite the parties, their representatives, and the experts to the next hearing after the inspection. At this hearing, the objections of the parties to the expert reports will be heard, and the experts’ statements on these objections will be taken. If the parties cannot agree on the price, a new expert panel will be appointed by the judge to conclude within fifteen days if necessary, and the judge will determine a fair and equitable expropriation price based on the reports and statements of the parties and experts.

Payment of the Expropriation Price

The court will give the administration 15 days to deposit the expropriation price determined as cash and in cash to the bank specified in the notification and adjourn the hearing for no more than 30 days. Upon submission of the bank receipt indicating that the expropriation price has been deposited in the name of the entitled person, the court will decide to register the immovable property in the name of the administration and pay the expropriation price to the entitled person. The court will send a certified copy of the decision to the land registry office to be implemented immediately without waiting for the finalization of the decision. Likewise, the bank will be notified to pay the deposited money to the entitled person without waiting for the finalization of the decision.

Judicial Review in Expropriation

The decision on registration in expropriation price determination and registration cases is final, and the decision on the price is open to appeal and cassation. If the expropriation price determined by appeal or cassation review is less than the amount paid in cash and in advance to the entitled person, the difference will be requested from the concerned party. No interest will be charged

for the period between the payment date by the administration to the bank in the name of the entitled person and the notification date of the letter regarding the repayment to the concerned party.

 

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