Turkey: General Scope of Expropriation and its Process in Turkish Law

Last Updated: 13 December 2010
Article by Nevzat Kırmızı

In certain cases, geographical limitations and factors, such as the need for allowing energy production may lead governments to the takings of immovables and resources from private ownership for a general public interest. The term, "takings" in Turkish law is referred to as "expropriation".

Expropriation refers to the taking of the possession of ownership belonging to private person or establishing a right of servitude by the State and public legal persons for public interest, with a decision taken by authorities in accordance with the procedures stipulated by law for public interest.

Although the Expropriation Law, numbered 2942, which forms the legal basis for expropriation, allows it only for the State and public entities, through the enactment of special laws, expropriation for the benefit of real persons and corporations as well are made possible. Aid to investors in all aspects, especially in the acquisition of suitable geographic areas, are necessary with respect to the benefits provided by alternate and renewable energy resources to the national economy

The expropriation procedure, to the benefit of a private person, is subject to the normal expropriation procedure set forth by the Expropriation Law numbered 2942. The Expropriation Law foresees that applications, in order to execute the expropriation, shall be made by the private persons if is performed for the benefit of the private persons and shall be made by the board of directors or administrative councils or authorized administrative organs if it is performed for the benefit of the legal persons, to the places that are competent for inspection. Therefore, expropriation authorizations, for the sake of the private persons, belong to the villages, ministries, private administrations or municipalities that the entities are bound according to their service areas.

Conditions for Expropriation

For the expropriation to take place, the administration action must be in line with the law according to its purpose, authorization, procedure, reason and subject of the action. In addition, pursuant to Expropriation Law numbered 2942, to mention a legal expropriation the following is needed;

  1. There should be public services that the administrations obligated to carry out pursuant to the laws.
  2. The administration, by law, is required to gain full responsibility for public services or attempts.
  3. The expropriation subject needs to be an immovable.
  4. The required amount of payment must be secured.
  5. The required amount in return of the expropriation must be paid.

Procedure

The law has foreseen administrations to perform certain procedures before expropriation. In accordance, prior to expropriation; the determination of the immovable's, the exposure of its legal status, and the declaration of tax value must be announced.

Determining the Value

After this process, the expropriation value through negotiations can be determined. While on the other hand, where an agreement cannot be achieved, the administration can file suit in the Civil Courts for the determination of the expropriation value. The administration claims the registry of the immovable's subject to expropriation on behalf of the administration, in exchange of the determined value and its payment in full or installments (if the conditions are met). In the first hearing, the judge first seeks that the parties come to an agreement on the value of the immovable's. If the parties cannot come to an agreement, then the Court appoints experts to determine the value of the immovable subject to the expropriation. Finally, pursuant to the expert report, the Court decides the value.

The expropriation value is determined by considering all elements that may affect the value of the immovable, such as: the type on sort of immovable it is; the surface area of the immovable and the distance from all roads and other settlements; the distance from the City's town center where the immovable is located; and the distance from the immovable to tourism locations. If the immovable or resource to become expropriated is subject to town planning , then the value is calculated as its net income. If it is not subject to any zoning, then the value is calculated as the precedent sale value of non-personal use before the expropriation.

Expropriation of an Easement

As it is possible to expropriate the entire real property, it is also possible to expropriate some parts. Moreover, if it is decided that it is enough for the needs of the administration, by leaving the right to property on the original owner of the immovable, an easement right may be established on the immovable. In this case, although the transfer of right of property does not take place, the immovable loses its value due to the established easement right. In case of the establishment of the easement right, the value of the expropriation is determined by the detection of the value lost. In case of an establishment of the easement right by expropriation and when an energy transfer line or pipeline passes, the value of the easement right refers to the value lost on the whole immovable due to the establishment of the right of servitude.

Transfer of Registry

Whether the parties conflicts in accordance to the mentioned procedures above, the cost which will be determined by the Court, or agree to the prices will be deposited into a bank account on behalf of the property owner along with a presented receipt. Then, the immovable property' s registration under the administration will be executed. The decision of the Court concerning the registry is final. The parties shall only appeal to decision regarding the value.

The expropriated immovable is registered to the Treasury at the end of the expropriation. The Energy Market Law gives the right of use to the immovable to the administrator who pays its fee. However, due to the changes in the Electric Market Law, public corporations who have the privilege to expropriate in the electric market, get to register the immovable under their name instead of the Treasury.

Conclusion

The right to property is protected and instituted as fundamental right by the Constitution. As a result, it is possible to restrict expropriation to what is only necessary for the public good. In this respect, partial expropriation and servitudes of immovable's are just as possible as its total expropriation.

www.gsimeridian.com

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
 
Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Related Topics
 
Related Articles
 
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions