Municipalities are charged with supervising the buildings within their boundaries and identifying those that do not comply with the zoning plan or the building permit. Where such a contravention comes to light, the power to halt the construction and to order demolition belongs to the municipal executive committee. Because it produces consequences that cannot be remedied once it is carried out, a demolition decision must be established faultlessly in respect of every element of an administrative act. A defect in even one of those elements may render the act unlawful and lay the ground for its annulment.
Against demolition decisions established unlawfully by the administration, rightholders have open to them the options of an objection and an action for annulment. In such actions, advancing a request for a stay of execution is perhaps the most critical link in the process. As to territorial jurisdiction, the court of the place where the immovable concerned by the decision is situated comes into play.
A demolition decision is an administrative measure that restricts the right of property guaranteed by Article 35 of the Constitution. Where it is given without a legal basis, it amounts to a direct and, in most cases, irreversible interference with the person’s right of property, which enjoys constitutional protection. In this briefing note we examine as a whole the chain running from the building suspension report to the decision of the executive committee and from there to the administrative judicial stage.
The Building Suspension Report and the Halting of Construction
Demolition is the last resort available to the executive committee in respect of buildings that contravene zoning rules. The decision taken by the municipality must accord with the procedure laid down in Zoning Act No. 3194. That Act leaves certain buildings not requiring a permit outside its scope, while providing a series of obligations for all buildings beyond those.
Under the Act, where it is established by the administration concerned or by the technical supervisor that a building has been erected without a permit or contrary to the existing permit and its annexes, the building is sealed and construction is halted. Where the situation comes to light upon a report or by some other means, the municipality or governorship of that place carries out an examination of the situation at the construction site; if a contravention of the legislation is established, construction is again halted and the building is sealed. This operation is completed by affixing to the building in question the document drawn up and signed by the authorised officials and known as the building suspension report — otherwise called the building suspension record. Once the record is affixed to the sealed building, the decision to halt construction is deemed to have been notified to the person concerned.
After the record has been affixed to the building in this way, two courses are open to the person concerned. The first is to bring the building into conformity with the permit, or to obtain a permit, within a period of not more than one month, and then to request the municipality or the governorship to remove the seal. Upon such a request, the officials of the administration attend the building and carry out an inspection; if it is found that the contravention of the permit has been remedied, or that a permit has been obtained and the building corresponds to that permit, the seal is removed and construction is allowed to continue.
In the second scenario, if the building is not brought into conformity with the permit within the one-month period, the permit is revoked. A building erected without a permit or contrary to the permit is demolished by the municipality or the governorship following a decision of the municipal executive committee or of the provincial administrative board; the cost of demolition is also recovered from the owner of the building. Whether this second course can be pursued lawfully depends first of all on a demolition decision having been taken by the administration in accordance with due procedure.
How a Demolition Decision Is Formed
Preparatory Stages
At the outset of the process, a building suspension report must be drawn up and signed in respect of the building whose unlawfulness has been established by specialists such as a technician or an engineer. A distinction should be noted here: the report, in the respect in which it differs from a building assessment record, brings a construction that is still ongoing to a halt. Like the building assessment record, this document may on its own be made the subject of an action for annulment.
Following this step, the building is sealed and the owner is allowed time to remedy the contravention. Ordering demolition before the stages set out above have been completed constitutes a manifest unlawfulness and requires the annulment of the decision in question.
Steps Required by Council of State Case Law
In one of its decisions on this matter, the Council of State set out clearly how the stages preceding demolition are to operate and with what content the building suspension record is to be drawn up:
- First, there must be a building erected without a permit or failing to comply with the permit and its annexes.
- Next, a building suspension record must be drawn up in respect of that building and, if possible, the person concerned must be allowed time to bring the building into conformity with the permit. That notice, which is to be given in the form of a warning, must clearly indicate precisely what the contraventions of the permit consist of. The same warning must also state that, if conformity with the permit is not secured within the time allowed, the sanctions in the zoning legislation will come into play. Where the record has not been drawn up at all, or lacks these mandatory elements, the demolition decision is rendered directly unlawful.
- For the record to be regarded as validly notified, it must be affixed to the building and a copy left with the neighbourhood headman’s office to which the building belongs. There is no requirement that the owner should also sign the record.
- The time limit for bringing an action begins to run at the moment the record is affixed to the building. Since notification is not deemed to have taken place by virtue of the owner’s signature, it is possible for the preclusive period to begin without the owner of the building even being aware of it.
- The addressee must be allowed at least one month in which to remove the contravention. However, in some decisions of the Council of State a period shorter than one month may be found lawful. If the circumstances of the particular case make the allowance of time unnecessary, the administration may even order demolition without allowing any time at all.
- If the contravention of the legislation has not been removed by the end of the time allowed, the building must be demolished by the competent units.
Taking the Demolition Decision and the Criteria of Lawfulness
If the requirements of the warning that the building be brought under a permit or brought into conformity with the permit are not fulfilled, the municipal executive committee takes a demolition decision and the enforcement stage is reached.
For that decision to be regarded as lawful, a timing condition is required first: the period allowed for bringing the building into conformity with the permit must have expired. That condition, however, applies only to buildings that are capable of being brought under a permit. If demolition is carried out before the period has expired in respect of a building that is capable of being brought under a permit, a de facto action arises. Since a de facto action is in the nature of a tort, proceedings may be brought against this conduct of the administration before the ordinary courts, that is, before the civil courts. By contrast, in certain decisions of the Council of State, the implementation of a demolition decision without waiting for the period to expire is not regarded as unlawful in the case of buildings incapable of being brought under a permit.
The other points that must be observed as regards the lawfulness of the decision are as follows:
- The decision must have been taken by the competent authority. In places falling under the governorship that authority is the provincial administrative board, and in places falling under the municipality it is the executive committee. It is also essential that the board taking the decision should have been lawfully constituted.
- The reasoning of the decision must be set out in detail: it must be explained which part of the building contravenes the permit and in what way, or why the obtaining of a permit was necessary for that building. Indeed, demolition may be envisaged only in respect of the unlawful part of the building. The decision is also expected to explain in detail the legal consequences to which it will give rise.
- Since the addressee of the decision is the owner of the building, the act must have been established as against the owner.
The Judicial Remedy Against a Demolition Decision
Where the conditions listed above are not met, whether at the preparatory stage or at the stage of taking the decision, an application may first be made to the administration that established the decision requesting that the unlawful act be corrected. If that request is refused, or if no response whatever is received for thirty days, an action for annulment may be brought before the administrative court. By this means the act established unlawfully may be reviewed and the contravention removed.
The conditions required for the annulment of a demolition decision, which is in the nature of an administrative act, and details of the proceedings such as the court with subject-matter and territorial jurisdiction, form the subject of a separate study dealing in full with objections to administrative acts and the action for annulment.
Situations in Which a Demolition Decision May Be Given
The Zoning Act provides that, where it is established by the administration concerned or by the technical supervisor that a building has been erected without a permit or contrary to the existing permit and its annexes, the building will be sealed and construction halted. As noted above, if the building is not brought into conformity with the permit after that suspension, a demolition decision is taken in respect of it.
A building permit must be obtained from the governorship or the municipality for every building falling within the scope of the Act. Those erected without obtaining this authorisation are regarded as unpermitted buildings. Where authorisation has been obtained but construction is carried on contrary to the annexes of the permit evidencing that authorisation, the situation of a building contravening the annexes of the permit arises.
What is meant by contravention of the permit and its annexes is that the building has been erected in a manner not complying with the building permit or with the projects forming annexes to the permit — such as the architectural project or the electrical project. By way of example, erecting a building of 7 storeys where the project envisaged 5 storeys, incorporating areas shown as balconies into the flat, placing a lift in the part set aside for the fire escape, or using rusted steel in the construction all fall within this scope. If these contraventions are not remedied within the time allowed, a demolition decision may be taken in respect of the building.
Stay of Execution in Demolition Decisions
The mere fact that an action has been brought does not of itself prevent the demolition from being carried out. The reason is that administrative acts enjoy a presumption of lawfulness and are accepted as lawful until annulled by a court. However, the second paragraph of Article 27 of Administrative Procedure Act No. 2577 has regulated the institution of the stay of execution. The provision requires two conditions cumulatively: that the implementation of the act will give rise to damage that is difficult or impossible to remedy, and that the act is manifestly unlawful. Where both are present, the court may, after obtaining the defence of the respondent administration or after the period for the defence has expired, stay execution by stating its reasons. In the case of acts whose effect is exhausted once they are implemented, a stay may also be ordered without waiting for the administration’s submissions, on condition that the matter is reconsidered once the defence has been obtained.
In actions seeking the annulment of a demolition decision, a stay of execution must always be requested. Otherwise the building may be demolished while proceedings that could last a long time are still under way. In practice it is seen that a stay is granted in the great majority of such actions, since demolition is an act whose effect is exhausted once it is implemented. As it is impossible to restore a building once demolished to its former state, a stay of execution may be ordered even without obtaining the administration’s defence.
Decision of the 5th Chamber for Administrative Cases of the Istanbul Regional Administrative Court dated 15.02.2022, docket No. 2022/272:
“In the dispute at issue, it is clear that, under Article 32 of Act No. 3194 set out above, the municipal executive committee concerned is competent to order the demolition of an unpermitted construction erected within municipal and adjacent area boundaries; accordingly, the act at issue, established so as to notify that the unpermitted building was to be demolished as soon as possible, failing which it would be demolished by the municipality and the cost recovered from the claimant as owner of the building — without the procedure laid down in Article 32 of Zoning Act No. 3194 having been followed and before any demolition decision had yet been taken by the municipal executive committee, the authority competent in this respect — was not found to be in conformity with the law as regards competence, and the decision granting the request for a stay of execution was not found to be erroneous in its outcome.”
Application to the Administration Before the Action for Annulment
An important point must be underlined here: applying to the administration is not a precondition for being able to bring an action against a demolition decision. Under Art. 7 of the Administrative Procedure Act No. 2577, an action for annulment may be brought directly within sixty days following the demolition or the notification of the decision. In an action directed against the building suspension report, that sixty-day period is calculated, as explained above, from the moment the record is affixed to a visible point of the building.
On the other hand, Provisional Article 16 of the Zoning Act provided that, in respect of buildings erected before 31.12.2017, a building registration certificate would be issued upon the application of the person concerned and on the basis of that person’s declaration. As explained in our separate study on the zoning amnesty and on the procedure and time limits for application, it is seen that this certificate granted to applicants is in some cases annulled by the administrative authorities on various grounds. The remedy of an action for annulment is likewise open against these refusal decisions, which may give rise to serious administrative, pecuniary and criminal consequences; the details are addressed in the study entitled Objection and Judicial Remedies Against the Annulment of a Building Registration Certificate.
A demolition decision taken without any legal foundation amounts to a direct and mostly irreversible interference with the person’s right of property, which is under constitutional guarantee. Various legal remedies are available to rightholders against unlawful decisions of the administration. Where recourse is had to the administrative courts, it is of great importance to request a stay of execution of this irremediable act.
The Court That Will Hear the Action
Since a demolition decision is an administrative act, in an action brought seeking its annulment the administrative courts of the place to which the administration that took the decision belongs are regarded as having both subject-matter and territorial jurisdiction.
Frequently Asked Questions
Is representation by a lawyer compulsory before the administrative court?
Turkish law allows parties to defend and represent themselves in person before the courts; save for certain exceptions, retaining a lawyer is not compulsory. Nor, as regards the administrative courts, is there any obligation to be represented by a lawyer practising in the field of administrative law. That said, the complexity of administrative law legislation and the strict and short time limits in the Administrative Procedure Act may, where the process is conducted by persons who are not lawyers, lead to errors of procedure and substance that are difficult to remedy. In order to avoid any loss of rights in this field, which contains detailed rules, it is appropriate to obtain support from lawyers practising in the field of administrative law before taking any step.
Does bringing an action automatically halt the demolition?
Since administrative acts enjoy a presumption of lawfulness, merely bringing an action for annulment does not stay the execution of the act. A separate stay of execution decision under Art. 27 of the Administrative Procedure Act is required for that purpose. In practice it is observed that a stay is granted in most cases against demolition decisions, because the courts regard demolition as an irremediable act.
What happens if no time limit has been allowed in the building suspension record?
It should first be noted that the record must allow the owner time to bring the building into conformity with the permit. If no time whatever has been indicated for obtaining a permit or removing the contravention, then, according to the approach of the Council of State, a one-month period running from the date on which the record was drawn up is deemed to have been allowed. A demolition decision taken before that period has elapsed is unlawful.
Does making a permit application affect the demolition decision?
If the building is of a nature incapable of being brought under a permit, a permit application made does not halt the demolition decision. By contrast, in the case of buildings capable of being brought under a permit, the application may halt the demolition decision. Ordering demolition before a permit request made in time and in accordance with due procedure has been determined constitutes an unlawfulness.
May a demolition decision be given in respect of a building that has a Building Registration Certificate?
It is unlawful to take a demolition decision in respect of owners who have obtained a Building Registration Certificate under the zoning amnesty and have brought their immovable, which contravened the permit, into conformity with the permit. If demolition has been ordered despite the existence of such a certificate, recourse should be had to an objection and an action for annulment.
How is a zoning demolition decision halted?
In order to obtain a stay, an action for the annulment of the administrative act must be brought before the administrative courts and a stay of execution requested within that action. Where no such request is advanced, the mere bringing of an action for annulment does not prevent the demolition from being carried out.
May an application be made to the administration before bringing an action?
It is possible to apply to the administration that gave the decision and request that the unlawful act be corrected. If that request is refused or left unanswered for thirty days, an action for annulment may be brought before the administrative court. By this means the unlawful act is reviewed and the contravention may be removed.
Can a decision of the municipal executive committee be annulled?
Decisions of the municipal executive committee are regarded as administrative acts. In order to have such an act annulled, the remedy of an application to the administration may first be tried and, once a refusal has been received or the 30-day waiting period has passed without any response, an action for the annulment of the executive committee’s decision may be brought before the administrative courts.
What is the time limit for objecting to a decision of the executive committee?
An objection may be made to the executive committee’s decision within 60 days of its notification to the person concerned. Since this 60-day period is preclusive in nature, once it has passed no possibility of objection remains.
In what situations does a demolition decision arise?
Where it is established by the administration concerned or by the technical supervisor that a building has been erected without a permit or contrary to the existing permit and its annexes, the building is sealed and construction is halted. Following the suspension, the owner is allowed time to obtain a permit or to bring the building into conformity with the permit. If a permit is not obtained or conformity is not secured within that time, a demolition decision is taken. Where the building is erected without a permit and without the authorisation of the municipality or governorship, where more storeys are built than the project envisaged, or where a lift shaft is constructed in the place set aside for the fire escape, the building comes to contravene the annexes of the permit and demolition may be ordered in respect of it.
What exactly does the building suspension report signify?
Under Art. 32 of the Zoning Act, where it comes to light that a building has been erected without a permit or contrary to the permit, a building suspension record is drawn up establishing the state of the construction at that moment; the building is sealed and construction is halted immediately. In short, the building suspension report is the document that places the momentary state of the construction on record and brings it to a halt.
Independent Legal Assessment
In demolition disputes the factor determining the outcome is most often not whether the building contravenes zoning rules, but the procedure followed by the administration. Matters such as the content of the building suspension record, whether it was left with the headman’s office, the length of the time allowed and the manner in which the executive committee was constituted are all capable of leading to the annulment of the act without the merits being reached. For that reason, the examination of the file must begin with the chronology of the process rather than with the reasoning of the decision.
The second critical point is timing. The sixty-day period beginning when the record is affixed to the building does not depend on the owner actually becoming aware of it; this gives rise to the risk of the preclusive period expiring silently. A request for a stay of execution, given that demolition is an act whose effect is exhausted once implemented, is an indispensable part of the statement of claim.
In a particular file we recommend that the following matters be given priority:
- Documenting the date on which the building suspension record was affixed and its deposit with the headman’s office, and calculating the time limit by reference to that date
- Checking whether the contraventions were shown concretely in the record and whether it contained a warning as to sanctions
- Assessing from the outset whether the building is of a nature capable of being brought under a permit, since this distinction directly determines the arguments as to time limits and de facto action
- Examining whether the executive committee’s decision gave reasons as to which part was regarded as contravening the rules and why
- Advancing the request for a stay of execution in the statement of claim together with a request that the decision be given without waiting for the defence
- Where a building registration certificate exists, ensuring that its validity and scope are fully reflected in the file
Independent Legal provides advisory services and conducts litigation throughout the whole process in disputes arising from zoning legislation, from the review of the building suspension report to the conduct of an action for annulment against the executive committee’s decision.