In accordance with the Constitution of Republic of Turkey,
Turkish Civil Code and other legislation, everybody has right to
property and this right can only be restricted by law and for the
public interest. In this context, in accordance with the
Constitution of Republic of Turkey; the State and public entities
are entitled, in case the public interest requires and provided
that the actual compensation is paid in advance, to wholly or
partly expropriate privately owned immovable property and establish
administrative servitude, in accordance with the principles and
procedures specified by law.
Thus, in case public entities with expropriation powers do not
expropriate in accordance with principles and procedures specified
by the law; and they confiscate immovable property without any
legal procedure related to expropriation, there would be the
confiscation without expropriation. The confiscation without
expropriation may be either legal or de facto.
In practice, confiscation without expropriation generally occurs
as de facto confiscation. Public entities with expropriation powers
unlawfully and de facto interfere immovable property without taking
any legal decision regarding expropriation and/or following the
procedure in relation to expropriation specified in
Legal confiscation may be defined as interference to immovable
property of a person by not actually applying zoning plans made by
municipalities and not expropriating in accordance with these
plans. The origin of this concept is misuse of expropriation power
of municipalities arising from the Article 10 of Zoning Law
numbered 3194. Pursuant to Article 10 of Zoning Law, municipalities
must prepare, within three months from the date of entry into force
of the zoning plans, five-year zoning programs to implement such
plans. The public entities must expropriate the areas allocated for
public service facilities within the limits of five-year zoning
programs and within the period of the program. However,
municipalities don't expropriate related areas for different
reasons; and as a result of this non expropriation process,
immovable property owner's power of disposition is greatly
diminished and enjoying the right to property becomes almost
impossible on immovable property, shown and qualified in a
different nature and quality in zoning plan than it has actually
(e.g., a house shown and qualified as cultural center in zoning
A decision of Turkish Supreme Court has been a milestone in this
matter. Until this decision, immovable property owners had no legal
protection against the interference to ownership via zoning plans.
However, with this decision, immovable property owners have been
able to claim for compensation based on value of their immovable
property. Indeed, until aforementioned decision, Turkish Supreme
Court took into consideration only the claims arising out from de
facto confiscations. However, following this decision, Turkish
Supreme Court ruled that, in addition to de facto confiscation, the
demands arising out from legal confiscation are also legally
protected interests, in terms of immovable property owners and that
non-performance of expropriation procedures needed to be performed
within five years would lead to a claim for compensation based on
value of immovable property.
According to Turkish Supreme Court, public entity which has not
performed expropriation due to the fact that zoning plan which has
not been included in zoning program for long years is not put into
practice has greatly diminished the owner's power of
disposition for an indefinite period, thus, the owner has been
unable to properly enjoy his right to property and this right is
prevented without any legal ground. Thus, public entity has
interfered immovable property by remaining passive and silent and
not carrying out any procedure related to expropriation.
Consequently, immovable property owners shall have right to claim
for value of their immovable property from public entity
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.
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