The Property Ownership Law states that if land shares are not distributed among right holders in accordance with their ownership shares, these right holders receive an indefinite right of action (Article 3). The Turkish Constitutional Court recently considered the claim (dated 10 September 2015, 2015/25 E., 2015/81 K.) which alleged this provision violates property rights and the constitutional principle of proportionality (Article 13 and 35 of the Constitution). The court accepted that an indefinite right of action interferes with the right of property. However, the court held this is not a constitutional violation because the intervention is made under law and in the public interests.

The Constitutional Court unanimously held that Article 3 of the Property Ownership Law numbered 634 does not violate Articles 13, 35 or 36 of the Constitution, for the following reasons:

Evaluation of Interference with Property Right

Property rights are fundamental constitutional rights, which can only be interfered with by a law and for the public interest (Article 35 of the Constitution). The state must respect property rights and prevent third parties interfering with these rights. The claimant argued that granting an indefinite right of action for redistribution of land shares interferes with property rights by exposing other right holders to an indefinite litigation threat.

The Constitutional Court held that granting an indefinite right of action falls within the state's positive obligation to prevent any interventions by third persons with property rights. Therefore, the court determined that the provision operates in the public interests.

Evaluation of Interference with Principle of Proportionality

For an interference with property rights to be constitutional, it must be made in accordance with certain principles (Article 13 of the Constitution). In particular, the principle of proportionality states that to ensure equity, a balance should exist between the means used for an interference and the intended purpose. Legislation must ensure a balance between individual rights and freedoms compared to public interests.

The court held that in multistore buildings, multiple independent sections are sold once the land share distribution is complete. It is unknown who will be the owner of the independent sections when the construction is completed and property ownership or easements are established. Therefore imprecise distribution of land shares can occur because this aspect is not important to the building owner. Accordingly, inequity can arise for parties that obtained ownership rights for independent sections after the distribution is complete because their payments are made on the basis on the location and size of the section, while their land shares may not be in line with this.

In these circumstances, legislators favored the property owner's rights by granting an indefinite right of action.

Evaluation of Interference with Right to Legal Remedies

Article 36 of the Constitution outlines rights to legal remedies, including the right to access courts. The right to access courts includes bringing disputes to an authorized court and executing court decisions.

The Constitutional Court held the indefinite right of action for redistribution of land shares to be necessary to ensure the right to court access, within the constitutional right to legal remedies. It held that these rights serve to protect property rights. 

Please see this link for full text of the court order (only available in Turkish).

Information first published in the MA | Gazette, a fortnightly legal update newsletter produced by Moroğlu Arseven.

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