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What is the Right of Way Through a Field in Turkish Law?

What is a Right of Way?

A right of way refers to the right to pass through someone else’s land. This right is usually used to provide access to immovable properties and can be registered in the land registry as an easement right.

Which law regulates the right of way?

The right of way is regulated by Article 747 of the Turkish Civil Code. According to this article, if the owner of an immovable property does not have access to a public road or a road suitable for the purpose of use, they can request a right of way over neighboring immovable properties. This right can be established by a court decision if the parties cannot reach an agreement.

What kind of right is a right of way?

The right of way imposes indirect limitations on property rights as a legal restriction and is based on a necessity arising from neighborhood law. This right is not based on a direct contract between the parties but on a legal regulation.

In which situations is a right of way granted?

A right of way is usually granted when an immovable property does not have access to other properties and this access is necessary. This is a situation evaluated within the scope of neighborhood law and aims to balance the interests of property owners.

In which situations is a right of way not granted?

If an immovable property has an alternative access route or the legal conditions for requesting a right of way are not met, this right is not granted. Additionally, situations where the right of way is not mandatory, such as having another solution or alternative route, constitute cases where the right of way is not granted.

For how many years is a right of way valid?

A right of way is not limited to a specific period and is regulated as a permanent right. It continues to exist as long as it is established, and unless otherwise stated, there is no time limitation.

Is the right of way personal?

The right of way is connected to the immovable property and is not a personal right. This right is linked to the ownership of the property and can be used by the new owner when the ownership of the property changes hands.

Can everyone use the right of way?

The right of way is generally used by the owners of the benefiting property or those who claim rights over this property. It is not open to use by everyone; it is related only to the ownership of the benefiting property.

Can the right of way be transferred?

Since the right of way is considered part of the ownership right, it passes to the new owner during the transfer of the property. Therefore, this right can be transferred along with the property.

Does the right of way pass to heirs?

Yes, the right of way can pass by inheritance. When the owner of the immovable property dies, this right passes to the heirs, who can continue to use it.

How is the right of way cancelled?

The right of way can be cancelled with the written declaration of the benefiting property owner or if the property against which the right of way is established ceases to exist. Additionally, the property owner can request the removal of the right of way through a court.

Is the right of way visible in the land registry?

Yes, the right of way is visible in the land registry. It is registered as an easement right in the land register and is indicated in the land book.

How is the right of way removed from the land registry?

The right of way can be removed from the land registry with the written declaration of the benefiting property owner or by court decision. If the property against which the right of way is established ceases to exist, the right of way automatically terminates.

What is the minimum width of a right of way?

A right of way is usually established with a width of 2.5 to 3 meters. However, these measurements may vary depending on land conditions and local regulations.

Can a house be built on a field with a right of way?

Restrictions on building on a field with a right of way depend on the characteristics of the right of way and local zoning regulations. In general, the right of way may limit the use of the property, and constructions that would obstruct the use of this right may not be allowed.

Can a right of way be used to obtain zoning?

The zoning status of a land with a right of way is evaluated within the framework of local regulations and plans. The right of way does not constitute sufficient grounds for granting zoning permission; other conditions specified in the zoning plans must also be met.

How is the cost of the right of way calculated?

The cost of the right of way is determined based on the report of technical experts appointed by the court and the results of the survey. The calculation is not limited to the value of the area where the road will pass but also considers factors such as the decrease in the value and income of the property due to the establishment of the right of way.

Who pays the costs of the right of way lawsuit?

Generally, the costs of the right of way lawsuit are paid by the losing party. However, in some cases, the litigation expenses, especially those incurred by the plaintiff during the litigation process, may be borne by the plaintiff.

How is the attorney fee determined if the right of way lawsuit is rejected?

In case of rejection of the right of way lawsuit, the attorney fee is usually calculated based on the market value of the property and is awarded in favor of the defendant who is represented by an attorney.

Is there an attorney fee in the right of way lawsuit?

In a right of way lawsuit, if the case is dismissed, an attorney fee may be awarded in favor of the opposing party. This depends on the outcome of the case and the court’s discretion.

Who is the defendant in a right of way lawsuit?

In a right of way lawsuit, the defendants are the owners or relevant right holders of the properties against which the right of way will be established.

Can a shareholder file a right of way lawsuit?

Yes, a right of way lawsuit can be filed by one or more shareholders if the property for which the right of way is sought is subject to co-ownership.

Which court should be applied to for a right of way?

Right of way lawsuits are usually filed in the court where the property on which the easement right is established is located. This court may be the civil court of the locality where the property is situated.

Is mediation required in a right of way lawsuit?

Mediation is not generally specified as a requirement in right of way lawsuits; this depends on the type of case and local judicial regulations.

How to prepare a petition for a right of way lawsuit?

A petition for a right of way lawsuit should include the claims of the party filing the lawsuit, information about the property, and the reasons for the right of way. The petition should clearly state the requests for the establishment or removal of the right of way.

How to object to an expert report in a right of way lawsuit?

Objections to an expert report in a right of way lawsuit can be made in writing within the specified periods or at the hearing where the report is submitted to the court. The objection should be reasoned and include alternative evidence.

Can witnesses be heard in a right of way lawsuit?

Yes, witnesses can be heard in right of way lawsuits. Witness statements are taken to provide the court with information about the conditions of use of the right of way and the claims of the parties.

What are the reasons for the rejection of a right of way lawsuit?

Reasons for rejecting a right of way lawsuit include the property in question not being subject to private ownership, having sufficient and alternative access, the plaintiff having adequate access to their property, or the property being unregistered.

What actions can be taken if the right of way is obstructed?

If the right of way is obstructed, it can be requested through the court to ensure the use of this right. A lawsuit can also be filed to remove the obstructing elements, and interim measures can be requested from the court during this process.

How is the right of way abused?

The right of way can be abused through excessive use, causing damage, obstruction, and unjust gain. The right of way is granted only for the owner to access their property and using this right for commercial activities or other purposes is considered abuse. The right holder should avoid actions that cause damage to the neighboring property, such as widening the road, cutting trees, or creating environmental pollution.

What should be done if the neighboring field does not give way?

If the neighboring field does not give way, the owner of the property without access to a public road can request a suitable right of way from the owners of the neighboring properties. Neighboring property owners are generally obliged to fulfill this request. If this request is not met, a compulsory right of way can be requested through the court.

What should I do if there is no road to my land?

If there is no road to your land, access to the public road can be provided by requesting a right of way over neighboring properties. This process is carried out by applying to the court and following the necessary legal procedures.

What happens if a field is registered as a field in the land registry?

The ownership and usage rights of a property registered as a field in the land registry are protected within certain legal frameworks. Being registered as a field indicates that the property is used for agricultural activities, and various agricultural incentives or supports may be available for such properties.

How to determine if a land has a cadastral road?

To determine if a land has a cadastral road, a comprehensive map showing the roads around the property should be requested from the relevant cadastre unit. This map shows the connections of the land with general roads and existing cadastral roads and provides a basis for court inspections.

 

For further assistance or consultation on this matter, please contact us.

 

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