Our legislation confers on municipalities the power to prepare zoning plans and to create parcels that conform to those plans. Under Art. 18 of the Zoning Act, municipalities may carry out parcelling of building plots and land within zoning boundaries, regardless of whether there is a building on the immovable and without seeking the consent of the owners and rightholders. This operation both raises the value of the parcels included in the readjustment and gives rise to areas capable of meeting public needs in the district. In a new parcelling, a land readjustment share (DOP) deduction is made from parcels in private ownership so that areas to be set aside for common public use may be created. Conversely, making deductions at differing rates from different parcels, or subjecting some parcels to no deduction at all, is irreconcilable with the principle of equality guaranteed by the Constitution and renders the act unlawful. In this note we set out the legal framework governing the land readjustment share and assess the grounds on which the act established by the administration may be annulled.
The power of municipalities is not confined to the operation of division alone. Combining parcels with one another, with surplus road areas or with places belonging to public institutions or municipalities, and redividing them into blocks or parcels in conformity with the zoning plan, also falls within the scope of that power. Likewise, distributing parcels to the rightholders on an individual, co-ownership or condominium ownership basis and having registration carried out ex officio fall within the municipalities’ remit. In places falling outside municipal and adjacent area boundaries, the power of parcelling belongs to the governorships of the place where the immovable is situated. In the course of this operation, known as parcelling, a land readjustment share deduction may be made in proportion to the increase in value arising from improvements such as the creation of public service areas for the purposes of urban activity.
What Is the Land Readjustment Share (DOP) Deduction?
An area that has not previously been the subject of parcelling gains in value once that operation is carried out. In ordinary circumstances, the owner whose immovable is thereby converted into a zoned parcel would have to pay a sum to the administration. However, in order for the instruments of the social state to be put into effect in that district after parcelling as well, the administration must own immovable property in the area subject to readjustment. In other words, the opening of parks, gardens, schools, public buildings, green areas and similar uses to the common benefit of the public depends on the administration holding ownership in that district.
It is because of this need that the administration is afforded the possibility, under Article 18 of the Zoning Act, of making a deduction, in return for that increase, from immovables whose value has risen by reason of parcelling.
The result is a balance operating in two directions: immovables of individuals that have not been subjected to zoning parcelling gain in value after the operation and are opened to use; while the administration acquires, without paying any consideration, the ownership of the areas in the district to be set aside for public service.
Current DOP Deduction Rate
Pursuant to Zoning Act No. 3194, Art. 18, the land readjustment share deduction that the administration may make following parcelling is at most 45%. In calculating this rate, the surface areas of the land and building plots included in the readjustment as they stood before the readjustment are taken as the basis.
The rate of deduction is fixed by statute. The rate, formerly applied as 30%, has been raised through legislative amendments to a level of 45%. Accordingly, it is always possible that a future statutory amendment may increase the present rate of 45% still further.
The Place of the DOP Deduction in Article 18 Applications of the Zoning Act
As noted above, an application of Art. 18 of the Zoning Act is the name given in practice to the parcelling operation carried out by the competent administration. The purpose of the readjustment is to bring about zoned parcels that conform to the zoning plan. Consequently, recourse to an Article 18 application in a given place depends first of all on the existence of a zoning plan there. For detailed information on the forms of unlawfulness that may require the annulment of zoning plans, our note entitled Grounds for the Annulment of Zoning Plans may be consulted.
In this application, the parcels in a given district are treated almost as a single whole, without the consent of their owners being sought. The conditions required by the district are assessed together, the area is rearranged in conformity with the zoning plan, and an increase in the value of the zoned parcels thereby arises. The share taken from the parcels included in the readjustment when the application is carried out is called the land readjustment share deduction.
As can be seen, for a land readjustment share to be taken from a parcel, an Article 18 application under the Zoning Act must have been carried out in that district. For fuller information on this application and its annulment, our study entitled Article 18 Applications under the Zoning Act and the Action for Annulment may be consulted.
Action to Annul an Unlawful DOP Deduction
Both the parcelling operation and the land readjustment share deduction are among the legal acts established by the administration. For that reason both are required to be lawful in respect of their elements of competence, form, subject matter, cause and purpose. Otherwise the administrative courts may decide to annul the acts. Detailed information on actions for annulment is contained in our note entitled Actions for the Annulment of Administrative Acts.
In practice, the most frequently encountered unlawfulness in respect of the DOP deduction is the failure to take a share at the same rate from every parcel included in the readjustment.
Indeed, making deductions at differing rates from different immovables in an entirely arbitrary manner and without any objective justification renders the act established unlawful. The land readjustment share deduction may also arise in respect of public land. Failure to make a deduction from immovables belonging to the public authorities or to the municipality within the area included in the readjustment will be irreconcilable with the principle of equality and will vitiate the act.
Where these and similar forms of unlawfulness are present, an application should be made to the administrative court within the statutory period following the establishment of the act, seeking its annulment. The carrying out of the act by an authority lacking competence, or the failure to observe the rules as to form, are likewise among the grounds that render the act unlawful.
The Court with Subject-Matter and Territorial Jurisdiction
In actions to be brought against a land readjustment share deduction established unlawfully, subject-matter and territorial jurisdiction lie with the administrative court of the place where the immovable is situated. The right to bring an action against this act is granted only to persons who appear as owners in the land registry. Persons with no connection to the title deed must first have the record of the immovable registered in their own names, and may then bring this action in respect of the immovable registered in their name.
Frequently Asked Questions
Is representation by a lawyer compulsory before the administrative court?
Turkish law allows individuals to defend and represent themselves in person before the courts; save for limited exceptions, there is no obligation to be represented by a lawyer. Nor is there any requirement to retain an administrative law lawyer before the administrative courts. That said, because of the complex structure of administrative law legislation and the short and strict time limits in administrative procedure, where the process is conducted by persons who are not lawyers, errors that are difficult to remedy may be made in respect of both form and substance. In order to avoid any loss of rights in administrative proceedings, which contain detailed rules, it is advisable to obtain support from lawyers practising in the field of administrative law before taking any step.
Does the administration always apply the DOP rate as 45 per cent?
No. The rate of 45% laid down in the Act is not an absolute but a maximum rate. The administration may not fix the deduction above that rate; it may, however, apply a rate below it. Moreover, the administration is obliged in each concrete case to determine separately the need required by the public service and to fix the DOP rate accordingly. Failure to do so may lead to the annulment of the act.
Can a second DOP deduction be made from the same parcel?
The rule is that a land readjustment share is not taken from a parcel more than once. Nevertheless, provided that the value arising as a result of the readjustment does not fall below the earlier value, a further deduction may be made in order to bring the rate applied in the first readjustment up to 45%.
How does the administration meet the need for public areas once the DOP limit has been reached?
In that situation the administration cannot resort to a further DOP application; it may, however, have recourse to expropriation. Expropriation may be effected by beginning with the cadastral parcel with the largest surface area and expropriating the amount remaining after independent zoned parcels have been allotted.
Can a deduction be made from an immovable that gains no increase in value?
It cannot. A deduction is possible only where an increase in the value of the building plot or land has arisen.
In its judgment of the 6th Civil Chamber of the Council of State dated 10.10.2003, docket No. 2003/5021, decision No. 2003/4766, the following was stated on the matter:
“Since there can be no question of an increase in the value, as a result of the parcelling operation, of the immovable at issue, which is understood to continue in public-purpose use as a hospital and the continuity of which purpose is also secured in the zoning plan, the parcelling operation established by making a land readjustment share deduction from the hospital area is not in conformity with the law.”
Independent Legal Assessment
In land readjustment share disputes the argument most often arises not from the fact that a deduction has been made, but from the way in which it was made. Where a share is taken at the maximum rate from some parcels in the same readjustment area while immovables belonging to the public authorities are left outside its scope, or where a difference in rate is created between parcels of a similar nature, this constitutes the strongest basis for annulment claims founded on the principle of equality. For that reason it is appropriate to begin the examination of the file by reading the parcelling distribution schedules comparatively.
The criterion of increase in value is likewise of separate importance. The legitimacy of the deduction depends on the immovable deriving an actual benefit from the readjustment; in the case of immovables whose public use is ongoing and whose character does not change, it may be argued that this condition has not been met. In concrete disputes we recommend that the following matters be examined first:
- Comparing the rates applied in respect of all parcels in the readjustment area in order to establish whether any difference exists
- Verifying whether immovables belonging to the public authorities or to the municipality have been brought within the scope of the deduction
- Confirming the existence of a valid zoning plan forming the basis of the readjustment
- Establishing by technical data whether a genuine increase in value has arisen in respect of the parcel
- Calculating whether, in a parcel from which a DOP has previously been taken, the additional deduction exceeds the 45% limit
- Recording the date of notification or publication of the act and scheduling the time limit for bringing an action from the outset
Independent Legal provides advisory services throughout the whole process in disputes arising from zoning readjustments, from the review of parcelling operations to the conduct of the action for annulment.