A building occupancy permit is the official document establishing that a structure satisfies every legal and architectural criterion required of it; in everyday language it is referred to as the occupancy certificate. Obtaining the permit depends on construction having actually commenced within two years of the date on which the building permit was issued, and on the construction being completed within the following five years. Completion within that period is not, however, sufficient on its own; where a structure has been built contrary to the approved project, a demolition order may be issued in respect of it. The permit is issued upon application to the municipality of the place where the structure is located.
In practice, cases arise in which the occupancy application that would allow the structure to be brought into use is refused even though the construction has been completed in accordance with the building permit. Since such a refusal constitutes an administrative act, the route of an action for annulment of an administrative act is open to those concerned.
Zoning law is a sub-branch of administrative law that sets the legal framework for development activity, and its principal source is the Zoning Act No. 3194. The concept of zoning corresponds to an administrative activity denoting the improvement and development of a locality. Below we examine the building occupancy permit stage, which forms the final link in this process, together with the legal mechanisms to be engaged where the application is refused.
The Function of the Building Occupancy Permit
The occupancy permit is the authorisation establishing that a structure completed in accordance with its building permit may lawfully be brought into use. It evidences that the structure has been created in conformity both with the legislation and with the approved project. For structures built in accordance with the permit and the architectural project annexed to it, those concerned may apply to the competent authority requesting that the document be issued. Following the application, the document must be issued within thirty days. The definition in the Zoning Regulation on Planned Areas reads as follows:
Zoning Regulation on Planned Areas — definition of the building occupancy permit
“The approved document showing that the structure has been completed in accordance with the projects annexed to its permit, authorising the use of the structure and drawn up in conformity with the form set out in Annex-9. The absence of an occupancy permit indicates that the structure is not fit for use.”
Put differently, the process has two stages: once the construction has been completed in accordance with the building permit obtained, a fresh application is made to the administration, this time seeking the building occupancy permit. The occupancy permit is therefore a document relating to the period following the grant of the building permit. For disputes arising at the permit stage, reference may be made to our note entitled “Objection and Legal Remedies Against a Decision Refusing a Building Permit Application”.
Conditions Required for the Occupancy Permit
Where the structure has been completed in its entirety, the permit must be obtained for the whole of it; where only parts fit for use have been completed, it must be obtained for those parts. The authority competent to grant the permit is the municipality or governorship unit that issued the building permit. If the structure is found to conform to the permit and its annexes and it is concluded that there is no impediment to its use, the building occupancy permit is granted.
The documents to be submitted with the application are as follows:
- A petition setting out the request for the occupancy permit, together with the title deed record
- The building inspection body’s certificate and the report of the project authors
- The shelter report and the fire installation report
- Photographs of the building façades
- A “No Tax Debt” letter to be obtained from the tax office
- A “No Debt” certificate in respect of property and environmental cleaning taxes
- A “No SGK Debt” certificate to be obtained from the Social Security Institution (SGK)
- The İZSU external sewer connection certificate
- A letter of conformity from Telekom
Administrations are under an obligation to conclude the application within thirty days. If that period passes in silence, the use of the whole of the structure, or of the completed part of it, is deemed to have been authorised. In other words, thirty days of silence produces the result of tacit acceptance. In this way, where the administration delays the occupancy inspection, the structure is treated as ready for use as though the permit had been granted.
In addition, construction of the structure to which the permit relates must have commenced within two years of the permit being obtained. The construction must be completed within five years and the occupancy permit obtained within that period. Otherwise the structure falls into the position of being unauthorised and unlawful, and a demolition order may be issued in respect of it. On this subject, our note entitled “Objection and Action for Annulment Against a Demolition Order” may be consulted.
Structures for which no occupancy permit has been obtained are not supplied with electricity, water and sewerage services, or allowed to benefit from those installations, until the permit is secured. Furthermore, independent sections over which a construction servitude has been established during the construction stage may be converted into condominium ownership only after they have been completed in accordance with the project and the occupancy permit has been obtained. Where there is no occupancy permit, conversion of a construction servitude title into condominium ownership is not possible.
Action for Annulment Against the Refusal Decision
Those concerned who have applied for an occupancy permit in due form may bring an action for annulment before the administrative courts if they consider that their application has been unlawfully refused.
Bringing the action after first applying to the administration. Before the action for annulment, within sixty days of notification of the refusal decision, an application may be made to the superior authority — or, where there is no superior authority, to the administrative authority that adopted the decision — requesting that the act be withdrawn. In practice that authority is the municipality or governorship of the place where the structure is located. This application to the administration suspends the time limit for bringing an action, which has already begun to run. If no response is given to the application within thirty days, the request is deemed to have been refused, and an action for annulment may be brought within sixty days from that date.
In the second scenario, the administration expressly refuses the request for withdrawal addressed to it. In that case too, recourse to the courts is available within sixty days from the date on which the refusal decision was notified.
Bringing the action directly. Applying to the administration is not a mandatory stage; the choice is left to the person concerned. Those who wish may first apply to the administration and request the withdrawal of the refusal decision; others may bring an action for annulment directly before the administrative court without making any preliminary application.
As regards the general framework of actions for annulment brought before the administrative courts, our note entitled “Objections to Administrative Acts and the Action for Annulment” will serve as a guide.
Grounds of Unlawfulness That May Be Raised in the Action
Those concerned who consider that an occupancy application complying with the legislation has been unjustifiably refused may bring an action, and in that action they will plead the unlawfulness of the refusal. Since refusal decisions are administrative acts, the defect must be established in respect of one or more of the elements of competence, form, cause, subject matter and purpose. Annulment of the act may be sought on the ground that the application conformed to the zoning plan and to the building permit. In framing the statement of claim, the reasons on which the administration based its refusal are taken as the starting point.
Competence — Where the refusal decision has been adopted by an authority that has no power to decide upon the occupancy application, the act is unlawful in that respect.
Form — Refusal decisions must be duly notified to the person concerned; an act adopted without notification is defective. Likewise, if the refusal requires a prior decision of another administrative authority and that decision has not been taken, the act again becomes unlawful in point of form.
Subject matter — The subject matter of the refusal must be legitimate and in conformity with the legislation. For example, where the zoning plan permits development up to a given number of storeys, a building permit allowing development in excess of that is unlawful as regards the element of subject matter.
Purpose — The sole aim pursued by administrative acts is the public interest, and acts must conform to that requirement. Refusing occupancy applications otherwise than in the public interest, having regard solely to private interests, undermines the element of purpose and renders the act unlawful.
The Court with Subject-Matter and Territorial Jurisdiction
In an action brought against a decision refusing an occupancy application, which is an administrative act, subject-matter and territorial jurisdiction lie with the administrative court of the place where the administrative body that adopted the refusal decision is located.
Time Limit for Bringing the Action
An action seeking annulment must be brought within sixty days of notification to the person concerned of the decision refusing the application for a building occupancy permit. That sixty-day period is preclusive in nature. As explained above, where an application is made to the administration the time limit for bringing an action is suspended; once the administration issues a refusal, the period resumes running from where it left off.
It should be borne in mind that building permit applications may also be unlawfully refused; on this subject, our note entitled “Objection and Action for Annulment Against a Decision Refusing a Permit Application” may be consulted.
Frequently Asked Questions About the Occupancy Permit
Is representation by a lawyer mandatory before the administrative court?
Turkish law allows parties to defend and represent themselves in person before the courts; save for certain exceptions, representation by a lawyer is not mandatory. No such obligation is laid down for the administrative courts either.
That said, the complexity of administrative law legislation and the brevity and strictness of the time limits in the Administrative Procedure Act No. 2577 make it inadvisable for the process to be conducted by persons who are not lawyers. In such cases, irremediable errors of procedure and substance may arise. So that no rights are lost in administrative proceedings governed by detailed rules, it is advisable to obtain legal support from lawyers practising in the field of administrative law before any step is taken.
How can it be established whether a property has an occupancy permit?
Information as to a property’s occupancy status appears in the title deed record. The presence of the term condominium ownership in the title deed indicates that an occupancy permit has been obtained for that property. This is because a building that has not been approved by the municipality cannot pass into condominium ownership; the precondition for that transition is that the building’s occupancy permit has been secured.
What are the consequences of failing to obtain an occupancy permit?
The most significant consequence is that the property cannot be brought into condominium ownership. So long as the permit has not been obtained, the type of the property continues to appear in the title deed as land. Where the permit exists, the property ceases to be characterised as land and is registered in the title deed as a building; utility subscriptions can then also be established.
What course should be followed if the municipality refuses to grant the occupancy permit?
Where it is considered that the structure meets the legal and architectural standards yet the municipality is unlawfully withholding the permit, an application may be made to the municipality as a first step. If a refusal is issued within thirty days, an action may be brought before the administrative court of the place where the municipality is located within sixty days of the date of notification of that decision; if no response at all is given, within sixty days of the expiry of the thirty-day tacit refusal period. Alternatively, without applying to the administration at all, it is also possible to bring an action directly within sixty days of the refusal decision issued by the municipality.
Who may make the application?
Since the permit relates to the property, the application may be made by the owner of the structure, that is to say the person who commissioned the construction. The contractor may also apply; in addition, persons authorised by a power of attorney drawn up before a notary may carry out this procedure.
What is the difference between the building permit and the building occupancy permit?
The building permit is the document of approval issued by the municipality so that construction may begin. The building occupancy permit, by contrast, relates to the stage following completion of the construction and allows the structure to be used. It must therefore be said that the two documents are different in nature.
Independent Legal Assessment
A point frequently overlooked in occupancy disputes is that allowing the thirty-day period to pass in silence produces a result in favour of the person concerned. The tacit acceptance that arises where the administration fails to decide within that period may render the legal basis of refusals subsequently adopted open to challenge. For that reason, recording the date of the application and the documents delivered to the administration proves decisive at later stages.
Some refusals, on the other hand, arise not from the structure itself but from outstanding debts and missing documents. In files of that kind, remedying the deficiency often produces a quicker result than bringing an action; it must not be forgotten, however, that the time limit for bringing an action continues to run while the deficiency is being remedied. The matters to be attended to in individual files are as follows:
- Documenting the date of the application and monitoring the thirty-day decision period
- Analysing the grounds of refusal so as to establish in which element of the act the defect lies
- Making the choice between applying to the administration and bringing an action directly with the effect on time limits in mind
- Verifying the two-year commencement and five-year completion periods running from the building permit
- Where the aim is to move from a construction servitude to condominium ownership, planning the occupancy process with that objective in view
- Pursuing separate legal remedies against related acts such as demolition orders or the disconnection of utility subscriptions
Independent Legal provides advisory and representation services in disputes arising from zoning legislation, from the preparation of the occupancy application through to the conduct of proceedings before the administrative court.