The risky structure decision, known to the public as the urban transformation decision, takes its legal basis from Act No. 6306 on the Transformation of Areas at Disaster Risk. The Act aims at the improvement, renewal or clearance of risky areas and of structures that have exhausted their economic life and are not resistant to natural disasters.
The most decisive link in the process is the identification of risky structures and the drawing up of risk assessment reports on them. These reports establish, through scientific and technical examination, that a structure is unsafe, and they are served on the owners. Owners may pursue the objection route within 15 days of service, and may also, independently of the objection process, bring an action for annulment directly before the administrative courts within 30 days.
At the litigation stage, it may be argued that the risk assessment decision is unlawful in terms of its elements of competence, form, cause, subject matter or purpose. In addition, a stay of execution (YD) may be sought while the proceedings are pending, so that steps such as demolition or eviction are suspended until the action is concluded.
Although Act No. 6306 is intended to accelerate and make transformation more effective, the uncertainties concerning the protection of owners left in the minority in particular, and the losses that may arise in terms of the right of property, give rise to serious debate. In this briefing note we address in detail the legal routes available against a risky structure decision, the objection process and the stages of the action for annulment.
The Concept of a Risky Structure
According to the definition given in Act No. 6306 and the related regulations, a risky structure means a structure that has completed its economic life on account of weaknesses in its load-bearing system and that poses a danger to the safety of life and property in the face of a possible natural disaster such as an earthquake.
Assessment reports are prepared by licensed bodies; those reports are examined by the Ministry of Environment, Urbanisation and Climate Change or by the relevant administration. Once the report has been approved, the structure formally acquires the status of a “risky structure” and the processes provided for in the Act begin to run.
How a Risky Structure Determination Is Carried Out
The determination of a risky structure is a process built around Act No. 6306 and the related regulations and resting on scientific and technical data. Its purpose is to analyse the current physical condition of the structure and to establish whether it is safe in the face of natural disasters.
The process forms a technical and legal whole aimed at protecting the safety of life and property of both individuals and society, and it essentially passes through the following stages:
- Application: The determination process most often begins at the request of the owners. The legislation nevertheless also allows the administration to act of its own motion and initiate a determination.
- Technical examination: The licensed body carries out detailed scientific and technical examinations on the structure. At this stage the strength of the load-bearing system, the quality of the concrete, ground data and visible damage are assessed.
- Preparation of the report: Once the examinations have been completed, a report is drawn up setting out the current condition of the structure and its degree of risk on the basis of scientific and technical data.
- Submission and approval of the report: The report prepared is transmitted to the Directorate of Urban Transformation in the province where the immovable property is situated or, where powers have been delegated, to the competent administration such as the municipality. The relevant administration examines the report and decides whether the structure is to be given the status of a “risky structure”.
Legal Consequences of the Determination Process
Once the determination process has been completed and the report approved by the relevant administration, the structure formally acquires the character of a “risky structure”. That status produces certain consequences both for the legal position of the immovable property and for the owners.
- Land registry annotation: A “Risky Structure” annotation is entered in the land registry record of the immovable property found to be risky. The annotation ensures that the legal position of the immovable property is clear.
- Service: Under Article 3 of Act No. 6306, that annotation is notified to everyone holding a right in rem or a personal right over the immovable property electronically via e-Devlet or by way of service by publication. Because it directly affects the right of property, this notification produces an important legal consequence.
Once service has been effected, the owners’ right to object within 15 days arises. If the risky structure decision becomes final, eviction and demolition proceedings are then commenced within the periods set by the relevant administration.
The Right to Object to the Determination
Owners or their legal representatives are afforded the opportunity to object to a risky structure determination within 15 days of service of the decision. That period is laid down in Act No. 6306 and the related regulations as a preclusive period. Objections made after it has expired are not taken into account and a risk of loss of rights arises for the owners.
The Basis and Limits of an Objection
Objections directed against the report are confined to the lawfulness of the risk assessment act. Since the details of the report are not shared with the owners, objections can be based only on technical and legal errors made in the course of the determination process. Within that framework it may be argued that the scientific or technical basis of the determination is inadequate.
Owners may also argue that there is a defect in the elements of competence, form, cause, subject matter and purpose of the administrative act. Grounds capable of forming the basis of an objection include the determination having been carried out by an unauthorised body, errors in the technical measurements, and the conclusion not being supported by scientific data.
How the Objection Process Operates
Owners or their legal representatives may object to risky structure determinations within fifteen days. Objections are examined and determined by technical panels composed, at the request of the Presidency, of four members appointed by universities from among the academic staff in the relevant professional discipline together with three persons serving in the Ministry or the Presidency.
- Making the application: The objection is transmitted in writing, at the request of the owners, to the Directorate of Urban Transformation of the place where the structure is situated or to the competent administration.
- Conducting the examination: The file is dealt with by the technical panels designated by the Ministry. The panel is composed of expert members from universities together with officials of the Ministry.
- Outcome: If the objection is found to be well founded, the risky structure determination is set aside. If it is rejected, the owners’ right to bring an action for annulment before the administrative courts comes into play.
The Time Limit for Objecting
Owners may object within 15 days of the date on which the determination is served on them. That period is preclusive; if it is missed, the opportunity to object is lost.
Who May Object
The power to object is afforded only to the owners of the structure and, where an owner has died, to their legal heirs. Persons who do not hold the status of owner, such as tenants or holders of rights in rem, may not object in this process.
The Authority to Which the Objection Is Made
An objection against a risky structure decision is addressed to the Directorate of Urban Transformation in the province where the structure is situated. Where powers have been delegated, the objection may also be made to the relevant administration, such as the municipality or the special provincial administration.
The Procedure for Examining an Objection
Risky structure determinations are of great importance in our country in terms of disaster risks and structural safety. The right of the owners of a structure to object to the determination is nevertheless preserved, and the assessment of an objection is subject to particular rules of procedure and principles.
Consideration of the notice of objection
The technical panel examines the assessment report in all its technical aspects, without being bound by the grounds relied on in the notice of objection. If technical deficiencies are found in the report, it is sent back to the licensed body or organisation so that they may be remedied. Once the deficiencies have been made good, a final decision is taken as to whether the structure is risky.
On-site examination
The technical panel may, if it considers it necessary, examine the structure in issue on site; a request may be made to the relevant Directorate or Administration for that examination. The risk status of the structure is assessed by reference to its condition as it stood on the date the risky structure determination was made.
The panel’s decision and its notification
The technical panel sets out the conclusion it has reached together with its technical reasons. The decision becomes official upon the signature of the chair and the members. Only the final decision is notified to the objecting owner; in other words, the owner is merely informed of the final decision on the determination. If the panel’s decision alters the risk status of the structure, the decision is transmitted to the Presidency.
The effect of an objection already determined
A risky structure assessment report that has been determined upon the objection of one owner is not re-examined on the basis of an objection by another owner.
Objections not made within the time limit and objections made by persons who do not hold the status of owner are rejected. Where an objection is found to be well founded, the decision is reconsidered and the necessary corrections are made in the land registry records.
Action for Annulment Against a Risky Structure Decision
Since decisions on risky structure determinations are administrative acts in nature, it is possible to have recourse to the courts against them. The provision in Article 125 of the Constitution, “Recourse to judicial review shall be available against all acts and actions of the administration.”, constitutes the basis of that guarantee. Accordingly, owners may bring an action against the decision rejecting their objection and may equally take the assessment report itself directly before the courts.
The purpose of these actions is to establish the unlawfulness in the administrative act and to have the act annulled. Conducting the process correctly is of great importance for the protection of the right of property and the prevention of any loss of rights.
The Time Limit for Bringing an Action
The time limit for bringing an administrative action against a risky structure determination is 30 days from the date on which the decision rejecting the objection, or the service of the determination itself, reaches the owners. That period is preclusive and the right of action is extinguished if it is missed.
When the period starts to run
- Where the objection is rejected: If the owner’s objection has been rejected, the thirty-day period begins to run on the date the rejection decision is served.
- Where an action is brought directly: If an action is to be brought without any recourse to the objection route, the period begins with the service of the risk assessment decision on the owners.
The determination decision is notified electronically through the e-Devlet system or published at the relevant mukhtar’s office. Ensuring that the preclusive period is not exceeded is a matter to be monitored scrupulously if the right of property is to be protected.
Who May Bring an Action
The right of action belongs to persons with a direct legal interest in the immovable property. On that basis, the owners of the immovable property, the owners’ legal representatives and, where an owner has died, their legal heirs may bring an action. Tenants, by contrast, and those holding a limited right in rem over the immovable property such as a usufruct do not have the power to bring an action. Those who do have a right of action must apply to the administrative courts within the periods provided for, setting out the grounds on which the act is unlawful.
The Possibility of Bringing an Action Directly
The annulment of an administrative act is not a result that can be achieved only through the objection route. Since the assessment report is administrative in nature, it may be made the subject of an action directly; owners may go to the administrative courts seeking the annulment of the report without waiting for the outcome of the objection process. The grounds that may be relied on where the direct action route is taken include the act having been performed by an administration lacking competence, the scientific basis of the technical report being deficient, and the act being contrary to law or to its purpose.
The objection process and the right of action each constitute an important legal safeguard in a process that directly affects the right of property. In order to avoid any loss of rights, it is recommended that the periods be monitored carefully and that the process be conducted with legal assistance.
Court with Subject-Matter and Territorial Jurisdiction
In actions for annulment brought against a risky structure determination, Art. 34(1) of the Administrative Procedure Act No. 2577 lays down a special rule of territorial jurisdiction for actions concerning immovable property. Under that provision, jurisdiction in disputes relating to immovable property, such as zoning, expropriation, demolition and allocation, belongs to the administrative court of the place where the immovable property is situated.
- Subject-matter jurisdiction: The court with subject-matter jurisdiction in actions for the annulment of a risky structure determination is the administrative court.
- Territorial jurisdiction: The court with territorial jurisdiction is the administrative court for the province or district in which the immovable property carrying the risky structure is located.
Application for a Stay of Execution
In these actions, owners have the right to apply for a stay of execution (YD). The purpose of a stay of execution is to suspend temporarily the implementation of the administrative act while the proceedings are pending — for example, eviction or demolition steps. The act is thereby prevented from causing damage that is difficult or impossible to remedy.
Under Article 27 of the Administrative Procedure Act No. 2577, a stay of execution may be granted only where two conditions are satisfied together:
- Manifest unlawfulness: The risky structure decision must be manifestly contrary to the legislation or to the law.
- Damage that is difficult or impossible to remedy: There must be a likelihood of irreversible damage arising for the owners if the act is implemented.
In assessing the application, the court may have recourse to an examination by a court-appointed expert if it considers it necessary. Having regard also to the danger that risky structures present in the face of natural disasters, however, a cautious assessment is made of the damage that continued implementation of the act might cause. The court may also grant a stay of a provisional nature, subject to awaiting the administration’s defence or the expert’s report.
A stay of execution halts the eviction and demolition steps attached to the risky structure decision until the action is concluded and constitutes an important safeguard for owners in the protection of the right of property. The court nevertheless has the power to review that decision throughout the proceedings. Where the application is rejected, the legal consequences of the act continue to be implemented.
In short, a stay of execution is an effective tool for preventing losses of rights in the transformation process and for suspending steps affecting the immovable property until the action is concluded. It is therefore important that the application be supported by strong legal grounds.
Consequences of the Action for Annulment
In an action brought against a risky structure decision, the court arrives at one of two outcomes. If the decision is found to be unlawful, the act is annulled and the following consequences arise:
- The land registry annotation is removed: The “risky structure” annotation is deleted from the land registry record.
- Eviction and demolition are halted: Demolition or eviction steps directed at the structure fall away.
- Powers of disposal are restored: The owners recover their rights of ownership and disposal over the immovable property.
If, by contrast, the court finds the decision lawful, the action is dismissed and the following consequences arise instead:
- Eviction and demolition continue: The administration’s demolition and eviction steps continue to be implemented.
- The annotation remains in place: The “risky structure” annotation in the land registry record retains its validity.
- Powers of disposal are limited: The owners have only limited powers of disposal over the immovable property.
If a stay of execution has been granted during the proceedings, that decision either continues in force or is lifted according to the outcome of the action. If it is lifted, demolition and eviction steps become capable of implementation once again.
In order to grasp urban transformation processes as a whole, it is also useful to examine separately such topics as how transformation operates in risky areas and risky structures, the principles governing risky structure determinations, the legal position of condominium owners who do not join the transformation decision, the termination of construction contracts relating to transformation, and decisions to strengthen risky structures.
Independent Legal Assessment
The risky structure determination is the act that sets off the whole chain of urban transformation; an error at that first link is therefore reflected in every subsequent stage. The problem most frequently encountered in practice is that owners confuse the 15-day period for objecting with the 30-day period for bringing an action and, because electronic service goes unnoticed, miss both periods at once. Since objection is not a mandatory stage, taking the direct action route should also be considered depending on the nature of the file.
The second critical point is the widespread belief that an objection can be argued only on technical ground. Yet, since the determination is an administrative act, review of competence and of procedure has at least as much potential to affect the outcome as technical review. In a given file the following points stand out in particular:
- Documenting on what date and by what means service was effected, and calculating the periods accordingly
- Checking the licence status of the body that carried out the determination and the competence of the administration that approved the report
- Subjecting the measurement, sample and ground data in the report to a technical counter-examination
- Applying for a stay of execution together with the statement of claim where a demolition or eviction timetable has begun to run
- Verifying standing at the outset, bearing in mind that the right to object is afforded to owners alone
- Assessing in advance the effect of the land registry annotation on the transfer and financing of the immovable property
Independent Legal provides legal advice at every stage of urban transformation processes, from objecting to a risky structure determination to the conduct of actions for annulment before the administrative courts.