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
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
Evaluation of Interference with Principle of
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
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.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
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