The expropriation of an immovable property is an administrative act established by the unilateral will of the administration and directed squarely at ownership. Whether that act is lawful may be reviewed by the administrative courts. An action for annulment serves precisely to set that review in motion; the claimant asks for the act to be set aside on the ground that it is defective in any one of its elements of competence, form, cause, subject matter or purpose.
The most critical aspect of the action is its time limit. As a rule, the court must be seised within 30 days running from the day on which the expropriation notification reaches the person concerned. This period is preclusive in nature, and once it is missed the act becomes final and can no longer be contested on the merits.
Below we examine the defects on which an action for annulment may be based, who has the capacity to bring it, the regime governing the time limit, the courts with subject-matter and territorial jurisdiction, and the function of the stay of execution.
What Is an Action for Annulment of an Expropriation?
An action for annulment is an administrative law remedy seeking to have the act by which the administration acquires privately owned immovable property set aside on the ground of unlawfulness.
In practice the expropriation process is most often debated around compensation; the action for annulment, by contrast, targets the substance of the act independently of the amount payable. What it offers the owner is this: the ability to halt the act and have it declared invalid by asserting that the administration has acted contrary to the law or that no genuine public interest exists in the particular case.
Legal Basis
The strength of the action derives from the higher norms protecting individual ownership and from the rules of procedure.
Its constitutional foundation is the provision guaranteeing judicial review of administrative acts:
Constitution of the Republic of Türkiye, Art. 125
“Recourse to judicial review shall be available against all acts and actions of the administration.”
Since the Constitution provides that ownership may be restricted only by law and for reasons of public interest, bringing an action for annulment is a constitutional entitlement whenever that framework is overstepped.
The provision specific to expropriation is found in Article 14 of the Expropriation Act No. 2942. The Act expressly lays down that owners served with an expropriation notification may apply to the administrative courts within a set period.
As to how the proceedings are conducted, the procedure by which the application is filed and the manner in which time runs, the Administrative Procedure Act No. 2577 applies.
Purpose of the Action
At the heart of this type of action lies the review of whether the administration’s interference with ownership through the use of public power has remained within the limits drawn by the law. In concrete terms, three outcomes are pursued:
- Protection of ownership: Annulling a defective expropriation keeps the property in the owner’s hands and brings the unlawful interference to an end.
- Testing the public interest: Whether the project makes a genuine contribution to the public good, and whether it was necessary to select the particular property for that service, are confirmed before the court in the light of the principle of proportionality.
- Review of lawfulness: It is established whether the act, as adopted, is defective in its elements of competence, form, cause, subject matter or purpose.
In Which Cases Can an Expropriation Be Annulled?
Because expropriation is itself an administrative act, the general principles of the review of lawfulness apply to it as well. Accordingly, the act may be annulled if it is defective in any one of the elements of competence, form, cause, subject matter and purpose.
The principal defects leading to annulment in practice are examined below.
Absence or Unlawfulness of the Public Interest Decision
The indispensable condition of an expropriation is that a public interest decision has been taken beforehand. An expropriation not resting on such a decision is unlawful and must be annulled.
The same result follows where the decision was taken by a body other than the competent authority, where it was not put through the prescribed approval stage, or where it is not founded on a concrete public need. In such cases the administrative court may annul the public interest decision and thereby set aside the expropriation act dependent upon it.
Adoption of the Act by an Administration Lacking Competence
Expropriation is a power conferred by law on certain administrations only. It is unlawful for an administration to embark on the expropriation of an immovable property falling outside its remit and area of competence.
For instance, a municipality taking an expropriation decision in respect of a plot outside its boundaries, or a public body having no such power resorting to this route, renders the act defective in its element of competence and calls for its annulment.
Failure to Comply with the Expropriation Procedure
Expropriation is an administrative process strictly bound by form. Failure to comply with the procedural rules laid down by the Act renders the act unlawful.
The shortcomings most frequently encountered in practice as grounds of annulment are the following:
- Failure to obtain the approvals and decisions required by the Act
- Failure to carry out the valuation work in accordance with the Act
- Complete failure to operate the purchase (settlement) stage
- Failure to serve proper notification on the owners
Shortcomings of this kind lead to the act being regarded as unlawful in its element of form.
Absence of a Genuine Public Interest
This route may be taken only where a genuine public interest exists. Acts adopted with no such interest at all, or in order to serve some other aim concealed behind the appearance of a public interest, are regarded as unlawful.
Examples include the expropriation of a plot unconnected with any public service in a manner serving the interests of a private person or entity, or a stated justification that does not correspond to the facts of the case. In such a situation the act is defective in its element of purpose and its annulment arises.
Disproportionate or Unnecessary Expropriation
Even where a public interest exists, the act is required to comply with the principle of proportionality. In pursuing its objective, the administration is under a duty to choose the method least damaging to the right of property.
Fixing the area to be expropriated above the genuine need, opting for the more intrusive course where a lighter solution is available, or expropriating the whole of a plot where part of it would suffice, all offend against this principle. In such files the act may be regarded as defective in both its subject matter and its purpose and be set aside.
Who May Bring the Action for Annulment?
The annulment of an expropriation act may be sought by those whose legal interest is infringed by that act. Capacity to bring proceedings before the administrative courts depends on the existence of a personal, current and legitimate connection of interest between the claimant and the act in dispute.
Under that test, those directly addressed by the act and those holding a right in rem over the property may apply to the administrative courts.
The Owner of the Property
The owner ranks first in terms of capacity to bring proceedings, because the expropriation is an interference directed at the owner’s right of property itself.
Time begins to run once notification has been served on the owner. An owner who considers the act unlawful may bring an action for annulment within the period and seek protection of their ownership.
Co-owners
In property held in shared ownership, each co-owner is directly affected by the act as regards their own share. Each co-owner may therefore bring an action alone, without needing the participation of the others.
In other words, there is no requirement for the co-owners to act jointly. Each co-owner’s right of action is independent, and time is calculated separately for each of them by reference to the date on which notification was served upon them.
Holders of Limited Rights in Rem
Holders of limited rights in rem other than ownership may likewise bring an action for annulment where their rights are directly affected by the act. Expropriation is, after all, a measure that extinguishes or restricts not only ownership but also the other rights in rem over the property.
Examples of persons afforded capacity to bring proceedings on this basis include the following:
- The holder of a right of superficies
- The holder of an easement
- The holder of a usufruct
Where the right in rem they hold is extinguished or curtailed by the expropriation, the persons listed may take proceedings on the ground that their legal interests have been impaired.
Time Limit for Bringing the Action
The action for annulment is an administrative action subject to a time limit, and that period is 30 days. The specific provision on the point is found in Article 14 of the Expropriation Act No. 2942. Under that provision, the owner, the possessor and the other interested parties affected by the act may apply to the administrative courts within thirty days running from the day on which notification reaches them or, where notification could not be effected, from the date on which the public announcement was made or from the expiry of the announcement period.
The period is preclusive; if no action is brought within that window, the act becomes final. The same article also lays down that, in shared or joint ownership, each co-owner may bring an action alone.
Courts with Subject-Matter and Territorial Jurisdiction
Since expropriation is in the nature of an administrative act, actions seeking to have it set aside are determined in the administrative courts.
The rules on subject-matter and territorial jurisdiction in these actions are determined in accordance with the provisions of the Administrative Procedure Act No. 2577.
Court with Subject-Matter Jurisdiction
In actions for annulment, subject-matter jurisdiction lies as a rule with the Administrative Court. Since both the public interest decision underlying the expropriation and the expropriation act itself are administrative acts, applications for their annulment are examined in the administrative courts.
Certain links in the process nevertheless fall within the remit of the ordinary courts. Actions seeking determination of the expropriation compensation and registration of the property in the name of the administration are heard by the Civil Court of First Instance. This division of jurisdiction is precisely one of the points most often confused in practice.
Court with Territorial Jurisdiction
As to territorial jurisdiction, the rule is the administrative court of the place where the property is situated. The purpose of this arrangement is to ensure that disputes concerning immovable property are heard in the nearest and most convenient forum in geographical terms.
Accordingly, whichever province or district the expropriated property lies in, the court with territorial jurisdiction is the administrative court of that place.
Because the rule on territorial jurisdiction is a matter of public policy, the court takes it into account of its own motion.
Stay of Execution in the Action for Annulment
The bringing of an action does not, as a rule, of itself suspend the implementation of the expropriation act. The administration may continue with its acts while the proceedings are pending. The claimant may, however, seek a stay of execution on the ground that implementation of the act would give rise to damage that is difficult or impossible to make good.
Where such an order is made, implementation of the act is temporarily halted; until the action is concluded the administration may not adopt a new act or deal with the property. In that capacity, the stay of execution is one of the most effective interim safeguards of ownership in actions brought against expropriation.
Conditions for a Stay of Execution
Under the Administrative Procedure Act No. 2577, two conditions must be satisfied together before such an order can be made:
- That implementation would result in damage that is difficult or impossible to make good
- That the unlawfulness of the act is manifest
The presence of only one of the conditions is not enough; where the two are not satisfied together, the request is refused.
Its Importance in Expropriation Cases
This request becomes decisive in files where there is a risk that the plot will shortly be registered in the land registry in the name of the administration or opened to actual use. Once an expropriation has been completed, a return to the previous position is often not possible in practical terms.
For that reason, seeking a stay of execution in the same application as the claim for annulment is in practice, in most situations, a necessary step in terms of effective legal protection.
The Independent Legal Assessment
The loss most frequently encountered in expropriation files stems not from any weakness on the merits but from a missed deadline. Since the 30-day period that begins to run upon notification is short, the examination of whether the act is unlawful must be started immediately upon service. In the same way, advancing the request for a stay of execution together with the claim for annulment is decisive in preventing the practical consequences that arise once registration has taken place.
A further critical point is the correct identification of the branch of the judiciary in which the dispute is to be heard. The lawfulness of the act is dealt with in the administrative courts and claims relating to compensation in the ordinary courts; overlooking this distinction leads to a loss of time and of rights.
In a given file, the following headings should be assessed as a matter of priority:
- Establishing the litigation timetable by documenting the date of notification or the expiry of the announcement period
- Reviewing the existence of the public interest decision, whether it was taken by the competent body, and the approval process
- Examining whether the purchase stage was properly operated
- Analysing, within the framework of the principle of proportionality, whether the area expropriated exceeds the genuine needs of the project
- Assessing capacity to bring proceedings and calculating time separately for co-owners and holders of limited rights in rem
- Including the request for a stay of execution in the application, with the assertion of damage that is difficult to make good set out in concrete terms
Independent Legal provides advisory services and conducts proceedings throughout the whole process in actions for annulment brought against expropriation acts, from the examination of the file for unlawfulness to the conduct of the litigation.