In almost every process in which zoning implementation is carried out, property owners are asked to surrender a defined portion of their parcels to the municipality without consideration, so that it may be set aside for roads, parks, green areas or similar public services. Known in practice as "uncompensated transfer", this transaction is presented as a sacrifice expected of the owner in order that the zoning plan may be put into effect.
In most instances, however, the transfer is far from being a free expression of intent; it has the appearance of a compulsory step that must in fact be taken before the zoning transaction can be concluded.
The words "no claim of ownership may be asserted" in Article 35 of the Expropriation Act No. 2942 give the impression, on a first reading, that these properties can never be recovered. The judgments of the Constitutional Court and of the higher judicial bodies show, by contrast, that the rule in question is not an absolute prohibition. Where the public interest ceases to exist, or where the property begins to be put to use outside the public service, it may be possible for the owner to advance a fresh claim.
In this briefing note we address the legal nature of the transfer, the limits of the rule in Art. 35, the circumstances in which restitution may arise, the types of action that may be brought, the rules on subject-matter and territorial jurisdiction, the appellate remedies and the possibility of an individual application to the Constitutional Court.
The Concept of Uncompensated Transfer for Zoning Purposes
In the course of zoning implementation, owners are asked to surrender part of their parcels to the municipality without consideration, to be allocated to roads, parks, green areas, schools or similar public services; in practice this transaction is called "uncompensated transfer".
Among the types of transaction in which a transfer is most frequently demanded, zoning implementation in the nature of parcelling and subdivision and consolidation transactions come first. The stage of obtaining a building permit is another typical moment at which a similar demand is encountered. To these may be added arrangements made in order to bring the property into conformity with the zoning plan, together with road-widening and route-adjustment works.
In all of these situations the owner is expected to set aside part of the parcel for public service, and the areas in question are surrendered to the administration without any consideration being paid.
Mandatory Transactions with the Appearance of Consent
The picture frequently encountered in the field is this: although a Development Contribution Share (DOP) has already been deducted from the property in an earlier zoning implementation, an uncompensated transfer is additionally demanded before the transaction can be completed. The owner is thus obliged to surrender a further area without consideration, so that the zoning transactions may be concluded, even though a deduction has already been made from the parcel by operation of law.
For this reason, although transfers rest on consent in outward appearance, in practice they become an obligation that must inevitably be discharged for zoning transactions to be completed. Scholarly writing and judicial decisions frequently assess transactions of this kind under the heading of "mandatory transactions carried out under the appearance of consent".
That characterisation is decisive when it comes to whether the owner may assert a fresh right where the area transferred is subsequently not used for public service, where the zoning plan is amended, or where the property is allocated to some other purpose.
Distinguishing the DOP Deduction from Uncompensated Transfer
Uncompensated transfer and the Development Contribution Share (DOP) are, by their legal nature, two entirely separate institutions.
The DOP is a deduction made from the property at a defined rate, in reliance on a power arising from statute, in parcelling transactions carried out within the framework of the Zoning Act No. 3194. The owner’s consent is not required; it is an administrative act founded directly on the statute.
Uncompensated transfer, on the other hand, although on paper it appears to be effected with the owner’s consent, in practice has the character of a condition put forward by the administration in order to be able to complete the zoning transaction.
The practical distinction between them may be summarised as follows:
- Uncompensated transfer → a demand that an additional area be surrendered before the transaction can be carried out
- DOP → a compulsory deduction arising from statute
The point that must be emphasised here in particular is this: as a rule, the DOP deduction may be applied only once. There is no legal possibility of carrying out a second zoning arrangement over the same property and making a further deduction. For this reason, transactions demanded under the name of "uncompensated transfer" which ultimately amount to a second deduction are regarded as contentious from the standpoint of the right to property and the principle of proportionality.
In our view, demanding an uncompensated transfer in addition from a property to which a DOP deduction has already been applied, and thereby resorting to a second deduction, is capable of producing a violation of the right to property.
Art. 35 of the Expropriation Act and the Right to Property
What the Provision Regulates
Article 35 of the Expropriation Act No. 2942 determines whether the former owner may subsequently assert a claim of ownership in respect of areas set aside for public services within the scope of zoning implementation.
According to the provision, in arrangements made pursuant to zoning legislation, former owners may as a rule neither assert a claim of ownership nor demand compensation in respect of places set aside for public services such as roads, parks and green areas.
The purpose of the provision is to secure the implementation of zoning plans and the uninterrupted delivery of public services. The provision does not, however, amount to an absolute prohibition valid in all circumstances.
The Limits of the "No Claim of Ownership May Be Asserted" Rule
The words "no claim of ownership may be asserted" in Art. 35 are in practice most often read as meaning that these areas can never be recovered in any way. In reality the scope of the rule is not unlimited.
The principal situations in which the application of the rule becomes contentious are the following:
- The place transferred has been opened to private use
- The area is allocated to a purpose other than public service
- The zoning plan is subsequently amended
- No use is made of the area transferred for public service purposes over a lengthy period
In situations of this kind it is accepted that the public interest may be said to have ceased to exist and that the owner may advance a fresh claim in reliance on the right to property. Indeed, the judgments of the higher courts likewise contain assessments to the effect that the right to property cannot be extinguished in its entirety once the public service purpose has come to an end.
Protection of Property under Article 35 of the Constitution
Under Article 35 of the Constitution of the Republic of Türkiye, everyone has the right to property and inheritance; that right may be restricted only for reasons of public interest and by statute.
Every interference directed at property must therefore satisfy three criteria together: the interference must rest on a statutory basis, must be founded on the public interest and must be proportionate.
In particular, where a DOP deduction has first been made from a property, an uncompensated transfer has then additionally been demanded, and the area transferred has nonetheless not been used for public service, the position of the interference in the face of the principle of proportionality becomes separately open to discussion.
The Constitutional Court’s Approach to Proportionality and Balance
In examining interferences with the right to property, the Constitutional Court places the principles of proportionality and balance at the centre of its analysis. On the Court’s approach, an interference must observe a reasonable balance between the public interest and the individual’s right to property.
Within this framework, it is accepted that an interference may become disproportionate where an area taken on public service grounds is left unused for a lengthy period or is allocated to another purpose.
Art. 35 of the Expropriation Act must accordingly be read not as an absolute prohibition, but as a provision confined to those situations in which the public interest persists. Where the public interest has come to an end, or where the property is used outside the public service, it may be legally possible for the owner to claim a fresh right.
Cases in Which Restitution Is Not Possible
There is no question of a plot transferred without consideration being recovered in all circumstances. So long as the public service purpose continues, it is as a rule not possible, under Art. 35 of the Expropriation Act, to make a fresh claim of ownership in respect of these areas.
The situations in which a claim for restitution or for compensation generally produces no result may be listed as follows:
- The transfer was effected lawfully and validly
- The area is in fact being used as a road, park, school or green area
- The public service purpose is still continuing
In these situations the interference with the property is assessed as falling within the scope of the public interest, and the restriction placed on ownership is regarded as lawful. Indeed, the mere fact that a transfer was made without consideration does not of itself give rise to a right of recovery; what is decisive is whether the public service purpose continues to exist.
Cases in Which Restitution May Arise
Although recovery is as a rule not possible, the way may be opened for the owner to advance a fresh claim once the public service purpose has ceased to exist or the property begins to be put to use outside the public interest.
Put another way, if that purpose has never been realised in an area taken for public service, or has subsequently come to an end, the legal basis of the interference with property is weakened and a claim for restitution or compensation arises.
The principal situations in which restitution may produce a result in practice are addressed below.
Disappearance of the Public Service Purpose
The fundamental condition for the recovery of an area that has been transferred is that the area is not being used for a public service purpose.
The conversion, by a subsequent amendment to the zoning plan, of an area surrendered for the making of a park into a residential, commercial or other private use area is a typical example demonstrating that the public interest purpose has come to an end.
In such a picture, the legal justification for the transfer no longer exists, and it may become possible for the owner to seek the restitution of the property or the making good of the loss sustained.
Amendment of the Zoning Plan
The development that most frequently gives rise to a claim for restitution in practice is the subsequent amendment of the zoning plan.
The following amendments may be given by way of example:
- The opening to private use of an area set aside for public service
- The planning of a green area as a commercial area
- The conversion of a place set aside as a road or park into a residential area
In plan amendments of this nature, the public service purpose of the property may be regarded as having ceased to exist. Amendments of this kind constitute a strong basis for the owner to make a fresh claim of ownership or to seek compensation.
The Area Being Left Idle
The fact that an area transferred has for years not been put to use in any public service may likewise form the basis of a claim for restitution or compensation.
The following may be given as examples of this situation:
- No investment whatever has been undertaken for a public service purpose
- An area shown in the plan as a park or road has been left empty for years
- The area has in fact never been used
In situations of this kind it may be argued that the interference with property has become disproportionate. The fact that an area has been set aside for public service in the plan is therefore not sufficient on its own; that purpose is expected to be realised in fact within a reasonable period.
Use of the Property Outside Public Service
The use of the area transferred for a purpose other than public service is one of the significant situations capable of giving rise to a claim for restitution or compensation.
The following forms of use are encountered in practice:
- The area is allocated to private persons
- It is let by the municipality as a car park, kiosk or commercial undertaking
- It is put to use in revenue-generating activities outside public service
In such uses it cannot be said that the property is being used for a public interest purpose. Since they are capable of removing the basis of the transfer, it may be legally possible for the owner to make a claim for restitution or compensation.
Types of Action That May Be Brought
Where the status in the zoning plan of a property transferred without consideration changes, or where the public interest purpose comes to an end, the legal route to be followed by the former owner is determined according to the circumstances of the particular case. The truly decisive question at this stage is whether the property is still in a condition in which it can be restored.
There are two basic types of action resorted to in practice:
- Action for damages
- Action for annulment of title deed and registration
If the property can be returned in kind, restitution is sought; if it cannot, its value is claimed. Choosing the correct type of action is for this reason a decision that directly affects the outcome of the process.
Action for Annulment of Title Deed and Registration (Restitution in Kind)
If the plot transferred is still in the ownership of the municipality and has not been transferred to third parties, an action for annulment of title deed and registration may be brought. The purpose of the action is to secure the re-registration of the property in the name of the former owner.
This route is resorted to in particular where the area transferred is not used for public service or has been allocated to a different purpose of use by an amendment to the zoning plan.
In which situations is it brought?
Where an area taken by the municipality for the purpose of making a park or road is subsequently converted by a plan amendment into a residential, commercial or other area of use and the property has not yet passed to third parties, restitution in kind may be sought.
In that event, the annulment of the title deed record and the registration of the property in the name of the former owner arise for consideration.
Action for Damages (Claim for Current Value)
Where restitution in kind is not possible, the owner takes the route of an action for damages. The aim here is not to recover the property, but to secure that the loss sustained is made good on the basis of the property’s current value.
The scenario most frequently encountered in practice is that the area transferred has been conveyed to third parties, or that an irreversible structure has been built upon it. Since restitution in kind cannot in these situations be achieved either in fact or in law, recourse is had to making good the interference with property by way of its value.
The basic principle observed in such actions is this:
Where the public interest purpose has ceased to exist, it is not possible for an interference with the right to property to remain without consideration.
Accordingly, even if the property cannot be returned, the owner’s loss must be made good. The amount of the damages is as a rule determined by the examination of a court-appointed expert, and the market value of the property at the date of the action is taken as the basis.
Whether the Claim Is Subject to a Time Limit
The basic principle adopted on this question is that the right to property is not subject to any statute of limitations.
The moment to be taken as the basis in the recovery of a plot transferred without consideration is not the date on which the transfer was made, but the date on which the public interest purpose ceased to exist.
The place transferred is regarded as lawful for so long as the public service purpose continues. Once that purpose comes to an end, the legal cause of the registration made in the name of the municipality likewise ceases to exist, and the record acquires the character of an unlawful registration.
The Courts with Subject-Matter and Territorial Jurisdiction
In disputes concerning the ownership of immovable property, subject-matter jurisdiction belongs as a rule to the Civil Court of First Instance.
As regards territorial jurisdiction, the court of the place where the property is situated has jurisdiction. In actions concerning rights in rem over immovable property, this rule of jurisdiction is mandatory in character and cannot be altered by the intention of the parties.
The same rules of subject-matter and territorial jurisdiction apply in particular in the following disputes:
- Other claims relating to the restitution of the property or to the payment of its value
- Actions for damages brought by reason of uncompensated transfer
- Actions for annulment of title deed and registration
In short, in actions directed at the recovery of a plot transferred without consideration, the court with subject-matter jurisdiction is the Civil Court of First Instance and the court with territorial jurisdiction is the court of the place where the property is situated.
Appellate Remedies
Decisions given in actions concerning the recovery of a plot transferred without consideration, or the claiming of its value, may be challenged by way of appeal and appeal on points of law within the framework of the general rules of procedure.
These appellate remedies allow the lawfulness of the first-instance decision to be reviewed by the higher courts.
Appeal
Decisions given by the Civil Court of First Instance may be challenged by an appeal to the relevant Regional Court of Appeal within two weeks of the service of the decision on the parties.
At the appeal stage the court may re-examine not only the legal assessment but also the facts. That is why the appeal is capable of directly affecting the outcome of the action.
Appeal on Points of Law
Decisions of the Regional Court of Appeal may, where the conditions required by statute are met, be challenged on points of law before the Court of Cassation.
The period for an appeal on points of law is likewise, as a rule, two weeks from service. Unlike the appeal, review on points of law is in essence confined to legal scrutiny.
Individual Application to the Constitutional Court
Where a plot transferred without consideration is not restored, or where no consideration whatever is paid to the owner even though the plot has for a lengthy period been kept outside any public service purpose, a question may arise as to a violation of the right to property.
In such situations, once the ordinary appellate remedies have been exhausted, the route of an individual application to the Constitutional Court may be taken.
The judgments given in recent years have built up a considerable body of case law to the effect that the right to property is violated where properties transferred are left unused for a lengthy period or are not restored notwithstanding that the public interest purpose has come to an end.
Alleging a Violation of the Right to Property
Article 35 of the Constitution secures property as a fundamental right and requires interferences by public authority to be proportionate, lawful and founded on the public interest.
In respect of a property transferred without consideration, it may be argued that the interference is disproportionate in the following situations:
- No consideration whatever has been paid to the owner
- The property has been left unused for a lengthy period
- It has not been restored even though the public service purpose has come to an end
- The property is put to use in furtherance of another purpose
Conditions for the Application
The making of an individual application to the Constitutional Court depends on the satisfaction of certain basic conditions.
Those conditions are, in brief, as follows:
- The application must not be manifestly ill-founded
- The ordinary appellate remedies, including appeal and, where available, appeal on points of law, must have been exhausted
- The application must be made within the statutory period
- The application must be founded directly on a violation of a fundamental right
Applications made without these conditions being satisfied may be rejected on procedural grounds.
Time Limit for Application
The period for an individual application is 30 days from the service of the final decision alleged to have given rise to the violation.
That period is a preclusive period; if it is missed, the right of individual application is extinguished.
For this reason, the process by which decisions given in actions concerning the recovery of the property become final must be followed with care.
The Practical Effect of Violation Judgments
The violation judgments of the Constitutional Court concern not only the applicant; they also produce results that give guidance in disputes of a similar nature.
Following such judgments, a retrial may be ordered, damages may be awarded in favour of the applicant, and the liability of the administration may be established by a finding that the right to property has been violated.
The violation judgments given in files in which properties transferred have been left idle for a lengthy period or put to use outside public service serve as an important safeguard strengthening owners’ ability to seek their rights.
Independent Legal’s Assessment
In disputes over uncompensated transfer, the element that determines the fate of the file is more often than not documentary evidence rather than legal argument. Establishing at the outset the present actual use of the area transferred, the dates of any plan amendments and any conveyances to third parties also directly determines which type of action is to be chosen.
Files in which the same property carries both a DOP deduction and an uncompensated transfer likewise call for particular attention. This picture, which has the appearance of a second deduction, is capable of forming a strong basis in favour of the owner in the proportionality analysis; in files where the necessary technical examination has not been carried out, by contrast, it is most often never raised at all.
The headings that should be brought to the fore in a particular dispute are the following:
- Complete collection of the title deed, municipal executive committee and building permit records relating to the transfer
- Documenting the present use of the area by way of an on-site examination and photographs
- Relating the date on which the public interest came to an end to the amendment of the plan
- Choosing between a claim for restitution and a claim for value according to whether the property has passed to third parties
- Investigating whether a DOP deduction has previously been applied
- Following the periods for appellate remedies and for individual application against the timetable for finality
Independent Legal provides process management and litigation services in disputes over transfers and deductions arising from zoning implementation, from actions for annulment of title deed and registration and actions for damages through to the stage of individual application.