The scheme publicly known as the "zoning amnesty" is a settlement mechanism which pursues the aim of preparedness against disaster risks and which allows unlicensed structures, or structures contrary to the annexes of their licence, to be placed on the register. Provisional Article 16, added to the Zoning Act No. 3194, made it possible for a Building Registration Certificate to be issued in respect of structures built before 31.12.2017 which are in breach of their licence or of the annexes to their licence. Misunderstandings as to the nature of this certificate are widespread: the certificate creates no new right in zoning terms, does not give rise to a vested right, and is a provisional registration valid only until the structure is brought into conformity with its licence or until an urban transformation scheme is applied.
The administrative authorities are able to cancel this certificate subsequently on various grounds. The consequences of cancellation are not slight: an administrative fine may be imposed, a demolition order may be adopted in respect of the structure, and criminal proceedings for the offence of causing zoning pollution may even arise. Faced with a picture that has administrative, financial and criminal dimensions, the legal avenue open to those concerned is judicial review of the cancellation act.
In the case of immovable properties which have benefited from the zoning amnesty and in respect of which a building registration certificate has been issued, the subsequent withdrawal of the certificate on allegations of irregularity is frequently encountered in practice. In this study we examine the avenues open to an owner whose certificate has been cancelled and the stages of the process.
Nature of the Building Registration Certificate
The building registration certificate is a document issued to applicants within the zoning amnesty process and governed by Provisional Article 16 of the Zoning Act No. 3194. The criterion on which the issue of the certificate is based is the applicant’s own declaration; in respect of structures built before 31.12.2017, the act is adopted upon the request of the person concerned and on the basis of that declaration. In line with the data notified by the owner, the ownership status, class, group and other characteristics of the structure and of the plot are entered into the building registration system. For details of the subject in terms of application procedure and time limits, our study entitled "Zoning Amnesty: Application Procedure and Time Limits" may be consulted.
The certificate affords a number of possibilities relating to the use of the structure. It confers on the holder a right to the installation of water, electricity and natural gas subscriptions. Demolition orders adopted in respect of certified structures on the basis of the Zoning Act No. 3194 and the Bosphorus Act are lifted; administrative fines not yet collected are also cancelled. It further becomes possible to carry out change-of-type and condominium ownership transactions without a building use permit being required; in the same way, a workplace opening and operating licence may be granted without an occupancy certificate being requested. The possibility for banks to appraise the structure in relation to credit applications, and the possibility for plots owned by the Treasury or the municipality to be sold to the owner of the structure at market value, are also among the possibilities afforded by the certificate.
By its legal nature the building registration certificate is an administrative act. In disputes concerning the certificate, the avenues of objection to administrative acts and of the action for annulment may therefore be pursued.
Situations Constituting the Grounds for Cancellation
The Declaration Does Not Reflect the Truth
As noted above, the certificate is issued on the basis of the owner’s own notification. The application is completed when the person concerned enters the information requested of him or her into the system, and the administration carries out no detailed verification at that stage. Where it subsequently emerges that the declaration was contrary to the truth, the certificate is withdrawn. One of the typical examples encountered in practice is the surface area of the immovable property being shown as lower than it is; such an under-declaration is regarded, in itself, as a ground for cancellation.
Immovable Properties Excluded from the Scheme
Provisional Article 16 of the Zoning Act No. 3194 has kept certain areas outside the zoning amnesty:
- Structures situated on immovable properties in private ownership and belonging to third parties
- Structures on Treasury land allocated for social facility purposes
- The Bosphorus coastal strip and the frontal view zone as defined in the Bosphorus Act No. 2960 of 18.11.1983, being the areas whose boundaries and coordinates are specified in the sketch and list annexed to the Zoning Act No. 3194
- Areas located in the historic peninsula of Istanbul whose boundaries and coordinates are likewise shown in the sketch and list annexed to the Zoning Act No. 3194
- The Historic Area defined in subparagraph (e) of the first paragraph of Article 2 of Act No. 6546 of 19.06.2014 on the Establishment of the Presidency of the Gallipoli Historic Area of the Çanakkale Battles
A certificate issued without regard to these restrictions may be cancelled at any time by the relevant administrations. The first matter the court will examine at the trial stage is likewise whether the immovable property at issue falls within one of the exceptions listed. Where the immovable property is located in one of these areas, the administration’s cancellation act will be found lawful and a decision dismissing the action is to be expected.
Dispute as to the Date of Construction
Since the certificate may be issued only for structures completed before 31.12.2017, a finding that the structure was built after that date results in cancellation. The owner may bring an action seeking the annulment of the act, asserting that the structure existed before that date. A legal dispute thus arises between the parties as to the date on which the construction was carried out.
The evidence the court must gather in such disputes includes the following: satellite images and aerial photographs; an on-site examination at the immovable property; the court-appointed expert report to be prepared following that examination; the photographs attached to the certificate application form. Alongside these, all other documents capable of clarifying the dispute must also be added to the file. Appeal routes are open against judgments delivered where the taking of evidence has been left incomplete.
Elements of the Act Subject to Review
An action for annulment is brought on the ground that one or more of the elements of competence, form, ground, subject matter and purpose of an administrative act is unlawful. The act withdrawing a building registration certificate is reviewed by the same method.
Competence — Under the Zoning Act No. 3194, the power to issue building registration certificates belongs to the Ministry of Environment and Urbanisation and to the institutions and bodies authorised by the Ministry. The power to withdraw the certificate is conferred on the same authority. Where a cancellation act is adopted by another administration contrary to this rule, the defect in the element of competence may be raised in the action.
Form and procedure — The cancellation act must have been duly served on the owners of the structure. Since such acts are individual acts, the decision must indicate the objection and judicial routes that may be pursued.
Ground and subject matter — The factual and legal reasons that led to the adoption of the act constitute the element of ground, while the effect the act produces in the legal sphere constitutes the element of subject matter. Both elements fall within the scope of judicial review.
Purpose — As with all other administrative acts, the ultimate aim of acts relating to a building registration certificate is to give effect to the public interest. Examination in terms of the element of purpose is likewise among the matters to be addressed in the action.
Recourse to the Courts
The administration is under an obligation to adopt acts that are lawful in terms of competence, form, ground, subject matter and purpose. Where a building registration certificate is withdrawn contrary to one or more of these elements, the addressee of the act may apply to the administrative courts seeking annulment. That action is termed, in administrative procedural law, an action for the annulment of an administrative act.
In addition, a person whose certificate has been cancelled may, before bringing an action, apply to the administration under Article 11 of the Administrative Procedure Act No. 2577 requesting that the act be revoked. That application is not, however, mandatory; it does not constitute a precondition for bringing an action.
Subject-Matter and Territorial Jurisdiction
Since an action against the withdrawal of a building registration certificate falls within the sphere of the administrative courts, the application must be made to the administrative court.
As regards the competent forum, the criterion is the location of the immovable property: the action is heard before the administrative court of the place where the immovable property is situated.
Time Limit
Under Article 7 of the Administrative Procedure Act No. 2577, the action must be brought within sixty days from the date on which the cancellation decision was served. Since that period is preclusive in nature, once it expires the possibility of bringing an action is entirely extinguished.
The avenue of objection to the administration may also be used within the sixty-day period. Where the administration gives no reply within thirty days, the application is deemed to have been impliedly refused and, once those thirty days have expired, recourse may be had to the courts within the remaining period for bringing an action. Where the administration expressly refuses the application before the thirty days expire, the period for bringing an action resumes running from the date of the refusal decision.
Consequences Where the Cancellation Becomes Final
Where the owner does not bring an action in time, or where the cancellation act is found lawful at the conclusion of the proceedings, the decision withdrawing the certificate becomes final. From that moment the structure falls into a position contrary to the zoning legislation and a series of administrative and criminal consequences follow:
- The imposition of the administrative fine provided for in Article 42(2) of the Zoning Act No. 3194 and the adoption of a demolition order in respect of the structure
- The withdrawal of the workplace opening and operating licence previously granted for the structure
- Where the certificate was obtained by a declaration contrary to the truth, the lodging of a criminal complaint against the owner in respect of the offence of false declaration in the drawing up of an official document, laid down in Art. 206 of the Turkish Penal Code No. 5237
As to the course to be followed against demolition orders, our study entitled "Objections and Actions Against Demolition Orders" may be consulted.
Frequently Asked Questions
Is representation by a lawyer mandatory before the administrative courts?
Under Turkish law the parties may defend and represent themselves in person before the court; save for limited exceptions, there is no obligation to be represented by counsel. No such obligation applies before the administrative courts either.
However, the complexity of administrative law legislation and the short and strict time limits in the Administrative Procedure Act No. 2577 make it risky for the process to be conducted by persons who are not lawyers. In such circumstances irreversible errors of both procedure and substance may be made. In order to avoid the loss of rights in administrative proceedings woven with detailed provisions, it is recommended that assistance be obtained from lawyers practising in the field of administrative law before any step is taken.
Does the building registration certificate create a permanent zoning right?
No. The certificate creates no vested right and confers no indefinite zoning right. Where a structure for which a certificate has been issued is renewed, the zoning legislation in force at that date applies. The validity of the certificate is provisional in nature, continuing until the structure is brought into conformity with its licence or until an urban transformation scheme is applied.
Can condominium ownership be established in structures benefiting from the zoning amnesty?
Since an occupancy certificate cannot be obtained for immovable properties covered by the zoning amnesty, transfer to condominium ownership is as a rule not possible. That said, the building registration certificate affords the possibility of benefiting from water, electricity and natural gas services in relation to the use of the structure. Where the certificate exists, change-of-type and condominium ownership transactions may be carried out without a building use permit being required; for that, however, all owners must give their consent after the certificate has been obtained, and any areas coinciding with places reserved for public services must be surrendered. Thanks to the same certificate, a workplace opening and operating licence may also be issued without an occupancy certificate being requested.
Does transfer to condominium ownership change the land shares?
Transfer to condominium ownership after the certificate has been obtained is not, in itself, a transaction affecting the land shares. A change in the land shares can arise only where the consent of all owners is present during the transfer transactions.
What can be done where the building registration certificate of a purchased property has been cancelled?
An action must be brought before the administrative courts, or an objection made to the administration, within the sixty-day period running from service of the cancellation decision. Conversely, where the certificate was cancelled before the purchase transaction and the period for bringing an action has also expired, no avenue remains that can be pursued before the administrative courts. In that case the dispute is dealt with as a private law matter between the parties to the sale relationship.
What options are available where the certificate is cancelled?
There are two routes. Under the first, an objection is made to the administration within the sixty-day period for bringing an action; if the administration refuses it within thirty days, recourse is had to the administrative courts from service of the refusal decision, and if it gives no reply at all within thirty days, recourse is had within the remaining period once an implied refusal has arisen. Under the second route, an action is brought directly without applying to the administration; in that case an action for annulment is instituted before the administrative court within sixty days from service of the cancellation act.
What can other unit owners do about an annexe built on the common areas of a complex?
An annexe built on a common area contrary to the project constitutes an interference with the property rights of the other unit owners. Since the building registration certificate is not served on third parties whose rights are impaired, an application must first be made to the administrative authority that issued the certificate requesting its cancellation. If the administration gives no reply within thirty days the application will be deemed refused and the period for bringing an action begins to run; where the request is expressly refused, an action for annulment may be brought before the administrative court within sixty days.
Furthermore, all forms of interference with and occupation of the common areas of complexes established under the Condominium Ownership Act No. 634 are protected by that Act. The fact that a certificate has been obtained for a structure built by a unit owner on a common area without permission does not legitimise the occupation of places subject to the Condominium Ownership Act No. 634. The other unit owners or the management may therefore bring an action for the prevention of interference and for restoration to the former state.
Does obtaining a certificate for a structure on a common area confer ownership?
No. Obtaining a certificate under the zoning amnesty in respect of a structure situated on a common area does not, in itself, confer a right of ownership on the person making the application. Everyone holding a share in the common area continues to retain that share and retains the capacity of owner over the structure covered by the certificate. Where the demolition of the structure is requested, the outcome varies according to the legal nature of the place where the structure is situated. For example, where an additional structure has been built in the garden of an apartment building, the owners may adopt a decision in favour of demolition by securing the majority required under the Condominium Ownership Act No. 634.
Does converting a container into a prefabricated structure affect the certificate?
Article 5 of the Zoning Act No. 3194 defines a structure as fixed and movable installations covering permanent or temporary, public and private underground and above-ground constructions on land and in water, together with additions to, alterations of and repairs to them. Under Article 21 of that Act, constructions having the character of a structure are subject to a licence. Since prefabricated structures also fall within that definition, and since no separate provision is made for them in the zoning legislation, a licence must be obtained. For that reason the conversion of a container into a prefabricated structure results in the cancellation of the building registration certificate.
Does criminal liability arise following cancellation?
Where the certificate has been cancelled and the structure has come into a position contrary to the zoning legislation, and where the structure has the character of a building and is located within municipal boundaries or in a place subject to a special zoning regime, an investigation is conducted against the owner for the offence of causing zoning pollution under Article 184 of the Turkish Penal Code No. 5237. Where strong suspicion arises that the offence has been committed, a public prosecution may be brought.
Which alterations lead to cancellation of the certificate?
Works of a simple nature which do not affect the load-bearing system are not subject to a licence; alterations and repairs such as pointing, internal and external plastering, painting and whitewashing, gutters, valleys, joinery, and floor and ceiling coverings fall within that scope and do not give rise to cancellation of the certificate.
By contrast, interventions which affect the load-bearing element or which give rise to changes in the construction area and in the projects annexed to the licence are regarded as substantial alterations. Such operations, characterised as fundamental changes, may bring about the cancellation of the building registration certificate.
Independent Legal Assessment
In disputes concerning the withdrawal of a building registration certificate, what is decisive is most often the management of time limits, before any argument on the substance. Missing the sixty-day preclusive period renders all objections inoperative, however strong they may be on the merits. Where the suspensory effect of the objection route and the operation of the implied refusal mechanism are not calculated correctly, those concerned may find themselves in a situation where the preclusive period has expired while they believed they had brought an action.
On the substance, the fate of a file is generally determined by the state of the evidence as to the date of construction. Duly raising requests for satellite images, an on-site examination and an expert examination at the pleading stage prevents shortcomings that are difficult to remedy at later stages. The points that stand out in particular files are as follows:
- Documenting the date of service of the cancellation act and scheduling the sixty-day period from the outset
- Making the choice between objection to the administration and a direct action while taking the implied refusal period into account
- Establishing in advance whether the immovable property falls within one of the areas excluded under Provisional Article 16
- Submitting, together with the statement of claim, the visual and technical evidence showing that the structure existed before 31.12.2017
- Not overlooking the need to bring separate actions against connected acts such as the demolition order and the administrative fine
- In files where a declaration contrary to the truth is alleged, assessing the administrative process and the criminal investigation together
Independent Legal provides process management and advisory services in disputes arising from the zoning amnesty scheme, from the administrative application stage through to the conduct of the action for annulment.