A risky structure denotes a building that has exhausted its service life, that harbours serious weaknesses in its load-bearing system and that lacks adequate resistance to natural disasters. Because buildings of this character carry a risk of collapse, particularly during an earthquake, they pose a grave threat to life and property. A risky structure determination, in turn, is an assessment with both technical and legal dimensions, conducted in order to establish whether a building is safe. At this stage specialist teams carry out various tests and analyses on the structure. If the building is found to be risky at the end of the examination, one of the routes of strengthening, demolition or reconstruction arises within the framework laid down by the legislation.
Türkiye’s location in a region of high earthquake hazard makes structural safety a critical subject. The assessment of risky structures is carried out under Act No. 6306 on the Transformation of Areas at Disaster Risk and by following specific statutory procedures.
In this briefing note we address the concept of the risky structure and the determination process in their legal aspects, and set out the powers and obligations of owners and rightholders in that process.
What Is a Risky Structure?
The definition of the concept of a “risky structure” appears in Article 2 of Act No. 6306 on the Transformation of Areas at Disaster Risk. According to that definition, a risky structure is a structure which, whether located inside or outside a risky area, has completed its economic life or which is shown by scientific and technical data to carry a danger of collapse or of suffering severe damage.
The criteria required for a building to be placed in this category are as follows:
- That its economic life has come to an end
- That there is a danger of severe damage or of collapse
- That this situation has been established on the basis of scientific and technical data
These criteria are further elaborated in the Implementing Regulation of Act No. 6306.
How Is a Risky Structure Determination Carried Out?
The determination is a technical exercise conducted, pursuant to Act No. 6306 on the Transformation of Areas at Disaster Risk and the provisions of the related regulation, by organisations licensed by the Ministry of Environment, Urbanisation and Climate Change. In that exercise the building is examined by different methods such as load-bearing system checks, material analyses, ground surveys and engineering measurements.
For the process to begin, it is sufficient for only one of the owners, or their legal representative, to make a request. Following the request, authorised specialist teams examine the building on site and report on the condition of the load-bearing system, the quality of the materials and the performance the structure would display in a possible earthquake. The report prepared is transmitted to the relevant administration; if it is approved, the structure is registered as risky. Following that registration, strengthening, demolition or reconstruction processes are commenced in respect of the building.
Which Structures May Be Assessed?
The structures that may be the subject of a determination are set out expressly in Article 7(1) of the Implementing Regulation of Act No. 6306:
Implementing Regulation of Act No. 6306, Art. 7(1)
“A risky structure determination is carried out in respect of structures that can be used on their own, are roofed and can be entered by people, and are suitable for the purposes of dwelling, working, entertainment, recreation or worship, together with structures used for the protection of animals and goods. Structures that are under construction and not inhabited, and structures that are derelict or whose structural integrity has been impaired from a static standpoint for any other reason, may not be made the subject of a risky structure determination.”
This provision draws a clear boundary around the structures in respect of which a determination may be made. Those falling within the scope are structures used for the purposes of shelter, work, entertainment, recreation or worship, together with structures set aside for keeping animals or goods.
By contrast, the following structures may not be made the subject of a determination:
- Structures that have lost their integrity from a static standpoint and are unusable
- Structures whose construction is ongoing and which have not yet been opened to use
- Structures that have been abandoned, have become derelict or are not used for any purpose
The priority of the provision is to secure the safety of structures that people actually use as living space.
Who May Request a Determination?
Before a building can be regarded as risky, a determination to that effect must first have been made. The procedure for the determination is regulated in Article 7(2) of the Implementing Regulation of Act No. 6306. Under that provision, a determination may be made only upon a request. The power to request is conferred on the following persons and bodies:
- The Urban Transformation Presidency or the administration (municipalities or provincial special administrations)
- The owners of the structure or their legal representatives
The Presidency and the administration also have the power to have the determination made of their own motion where they consider it necessary.
Determination at the initiative of the owners
The power to make a request belongs in the first place to the owners of the structure. Since the Act confers that power only on owners and on the administration, persons holding a right in rem over the structure other than ownership, and tenants, may not put forward such a request.
Owners may have the risk assessment of their own structure carried out by applying to organisations licensed by the Ministry of Environment, Urbanisation and Climate Change. All costs relating to the determination fall upon the owners.
Determination at the initiative of the administration
The administration may allow the owners a specific period within which to have the determination made. If the owners do not act within that period, the administration has the determination made of its own motion and collects the resulting cost from the owners. Collection is effected in proportion to the owners’ shares.
Notification concerning the costs is served on those concerned by the administration, and those amounts must be paid within one month following the notification. If payment is not made, the administration may pursue collection by having recourse to legal remedies.
These provisions determine on whose initiative and under what conditions the determination process may be commenced, and at the same time clarify the allocation of responsibilities within that process.
Organisations Authorised to Carry Out Determinations
Pursuant to Article 6 of the Implementing Regulation of Act No. 6306 on the Transformation of Areas at Disaster Risk, the institutions and organisations authorised to carry out a risky structure determination are listed as follows:
- The Urban Transformation Presidency
- The administration (municipalities or provincial special administrations)
- Universities
- Institutions and organisations licensed by the Ministry, together with public institutions and organisations
- Institutions and organisations that have registered an office with the chambers of civil, geological and geophysical engineers
- Companies at least 40% of whose capital belongs to public institutions and organisations
- Building inspection organisations and laboratory organisations holding a permit certificate from the Ministry
- Non-governmental organisations active in the fields of protection from earthquakes, the mitigation of earthquake damage and contributing to the development of earthquake engineering
Licensed institutions and organisations may carry out determinations anywhere in the country without being bound by any geographical limitation. The scope of that authority is set out in detail in the relevant articles of the Implementing Regulation of Act No. 6306.
Determination Reports
Risky structure determination reports are official documents drawn up within the framework of Act No. 6306 on the Transformation of Areas at Disaster Risk and its Implementing Regulation, containing the technical analyses and assessments of licensed organisations. These documents both form the basis of the determination process and play a decisive role in the subsequent administrative and legal steps.
Content of the report. The report setting out the risk status of the structure covers the following information:
- The current condition of the load-bearing system
- The general description and technical characteristics of the structure
- The results of the risk analysis carried out
- The scientific and technical data requiring the building to be regarded as risky
- Where considered necessary, the proposed methods of intervention (such as strengthening or demolition)
The report is submitted to the relevant administration and taken under examination; if no deficiency is identified, the process of formally transferring the structure to “Risky Structure” status begins.
Costs of the Determination
The costs relating to a risky structure determination may vary from city to city. Pursuant to Act No. 6306, these expenses are borne by the owners who request the determination. If the determination has been made by a decision of the general assembly of condominium owners, the costs are apportioned among all condominium owners.
The Risky Structure Decision and Its Consequences
A risky structure decision is an administrative decision taken, in accordance with Act No. 6306 on the Transformation of Areas at Disaster Risk and the provisions of the related regulation, on the basis of the technical reports drawn up by authorised licensed organisations.
The Decision of the Administration
The administration examines the report submitted by the licensed organisation in detail and assesses whether the structure falls within the scope of a “risky structure”. The matters scrutinised during that examination are as follows:
- Whether the report has been drawn up in conformity with the legislation
- Whether the current condition of the structure and the technical analyses are accurate
- Whether the risk assessment has been based on scientific and technical data
If the report is approved by the administration, the structure is formally placed in “Risky Structure” status. That status shows that the building is regarded as risky by law and that the necessary administrative steps will be commenced.
Notification to the Owners
The decision concerning the determination is announced to the owners of the structure and to the relevant rightholders pursuant to Article 3 of Act No. 6306 on the Transformation of Areas at Disaster Risk.
Act No. 6306, Art. 3
“…in lieu of service upon holders of rights in rem and personal rights, a record containing the information relating to the determination shall be posted on the structure, notified to the owners through the e-Government Gateway and announced at the relevant headmanship for a period of fifteen days. The risky structure determination shall be deemed to have been served upon the holders of rights in rem and personal rights on the last day of the announcement made at the headmanship. Risky structures shall additionally be announced on the Presidency’s website for a period of fifteen days.”
Under this provision of the Act, notification is carried out along two channels.
Electronic service:
- Notification is made to the owners through the e-Government Gateway.
Service by announcement:
- Information relating to the structure is additionally published on the Presidency’s website for 15 days.
- The record containing the determination information is posted directly on the building.
- The same content is put out for announcement at the headmanship for a period of 15 days.
Once these announcements are completed, service upon the owners and upon the holders of rights in rem and personal rights is deemed to have been effected as of the last day of the announcement at the headmanship.
Assessment and points to be borne in mind
This service regime peculiar to risky structure determinations is decidedly unusual and restrictive when compared with general rules on service. Although the methods of announcement and electronic notification ensure that rightholders are informed to a degree, they carry the potential to cause a loss of rights when the difficulties of e-Government access and of coming across service by announcement are taken into account.
For that reason it is of great importance that everyone involved in the process follow the procedures and principles of notification closely and not overlook the statutory time limits. The ability to exercise the right of objection depends on correctly identifying the moment at which the notification acquires formal effect.
Annotation on the Land Registry Record
Once the report has been approved, the structure is notified to the land registry directorate. Upon that notification, the land registry directorate enters in the declarations column of the land register for the immovable concerned an annotation stating that the structure is in “Risky Structure” status.
The consequences afforded by the annotation are as follows:
- Informing third parties. The risky structure status becomes visible to third parties wishing to purchase the immovable or to carry out transactions over it. Bad-faith transactions and good-faith defences are thereby forestalled.
- Notification to rightholders. The land registry directorate announces the annotation it has entered to the owners who hold rights over the immovable.
This decision, by conferring a concrete legal status on the condition of the structure, serves both the protection of property rights and the creation of safe living spaces.
Decisions That May Be Taken Once the Determination Becomes Final
A determination becomes final if no objection has been made within the time limit, if no action has been brought, or if the application or the action has been rejected as a result of the examination carried out. Following finality, both the owners and the administration acquire the power to take certain decisions. At this stage the legislation allows for three fundamental decisions.
Decisions That May Be Taken by the Owners
Strengthening decision
Strengthening aims at remedying by technical methods the problems that caused the structure to enter risky status. Implementation of the decision depends on the completion of each of the following stages without any of them being omitted:
- Establishing that strengthening is technically feasible
- Taking a decision in favour of strengthening
- Preparing the strengthening project and submitting it for the approval of the relevant administration
- Obtaining the required permits
Once all stages have been completed, an application may be made to the land registry directorate for the removal of the risky structure annotation.
Demolition decision
The principal rule in respect of buildings in risky status is demolition. The owners’ ability to take a decision in favour of demolition depends on the approval of an absolute majority of the co-owners by reference to their shares. Pursuant to Article 8(2) of the Regulation, the course followed is as follows:
- The administration allows the owners a period of not less than 90 days.
- The structure must be evacuated and demolished within that period.
- Documents are required to be submitted showing that the structure has been vacated and that services such as electricity, water and natural gas have been cut off.
If the demolition is not carried out within the period allowed, the administration carries out the demolition of its own motion and collects the costs from the owners.
Reconstruction decision
Once the structure has been demolished, the owners may take a decision in favour of reconstruction by an absolute majority by reference to their shares. That decision covers two matters:
- Determining by whom the reconstruction will be undertaken
- Regulating the process by which the construction costs will be met
Decisions That May Be Taken by the Administration
Expropriation decision
One of the routes open to the administration in respect of a risky structure is expropriation. Article 73(5) of the Municipality Act No. 5393 establishes that agreement is the essential route in the expropriation of structures situated within transformation areas. Article 8(1) of the Expropriation Act No. 2942 likewise provides that the purchase procedure is to be operated first.
Urgent expropriation decision
Recourse may also be had to urgent expropriation in respect of risky structures. Pursuant to Article 6(2) of Act No. 6306:
- Where, on a plot whose building has been demolished, no settlement has been reached by an absolute majority within the 30-day period running from service upon the owners,
- The Presidency, TOKİ or the administration may resort to urgent expropriation in respect of immovables belonging to natural persons or to private law legal persons.
Demolition decision
The obligation to demolish belongs in the first place to the owners. If the owners do not discharge that obligation within the period allowed, responsibility passes to the administration. Since risky buildings pose a threat to public safety, eliminating the danger is a statutory duty of the administration.
Evacuation and Demolition of Risky Structures
A determination becomes final through the objection period not being used or through the objection made being rejected. Following finality, a request for the demolition of the structure is transmitted to the administration by the relevant directorate, and the vacation and demolition stage begins to run.
- The period allowed: The administration gives those residing in the risky building a period of not less than 90 days for vacation and demolition. That period is allowed once only; what is expected of the owner is to vacate the immovable and undertake the demolition within the same span of time. Pursuant to Article 8(2) of the Regulation, if evacuation or demolition has not taken place when the period expires, the administration may exercise its power to carry out the demolition of its own motion.
- Suspension of infrastructure services: If vacation or demolition has not been carried out within the period, the administration requests the relevant institutions to cut off the natural gas, water and electricity services supplied to the structures in question. Before that step, the views of the rightholders over the structure are obtained and they are informed.
- Removal of the risky structure annotation: Once the structure has been demolished and the immovable has acquired the character of a plot of land, the risky structure annotation in the declarations column of the land register is cancelled. The transaction is carried out upon the request of the rightholders or upon notification by the administration.
Is an Objection Against the Decision Available?
The owners or their legal representatives may lodge an objection against the determination made within a period of fifteen days. The objection is addressed to the Urban Transformation Directorate in the province where the structure is located or, where authority has been delegated, to the relevant administration (the municipality or the provincial special administration).
Objections made after the expiry of the period, and objections put forward by persons not holding the status of owner, are rejected. If the objection is found to be well founded, the decision is reconsidered and the necessary corrections are made in the land registry records.
Can an Action Be Brought if the Objection Is Rejected?
If the administration rejects the objection directed against the risky structure decision, the owners and the lawful rightholders are allowed a 30-day period for bringing an action, running from the day on which the rejection decision was served upon them. Recourse may be had to the administrative courts within that period.
Related Topics
The following topics may be examined for the other headings of urban transformation legislation:
- The Urban Transformation Process in Risky Structures
- Objection and Action for Annulment Against a Risky Structure Decision
- The Urban Transformation Process in Risky Areas
- The Rights of Owners Who Do Not Comply with an Urban Transformation Decision
- Termination of Construction Contracts Relating to Urban Transformation
- Strengthening Decisions in Risky Structures
Independent Legal Assessment
In risky structure determinations, the most fragile point in practice is the service regime rather than the technical report. The fact that the determination is deemed to have been served on the last day of the headmanship announcement sets the fifteen-day objection period running even where the rightholder is not in fact aware of it. This arrangement gives rise to a serious risk of loss of rights, particularly for owners who live away from their immovable or who do not regularly follow e-Government notifications. Missing the period may render ineffective in practice not only the opportunity to object but also the 30-day right of action that follows.
The second critical heading is the restriction on disposal that the consequences of the determination create over ownership. Although the annotation entered in the land register does not legally prevent the transfer of the immovable, it directly affects its value and its position in the eyes of a purchaser. For that reason the determination process should be assessed not only from the standpoint of the possibility of demolition but also from that of the economic future of the immovable.
The headings to be observed in a concrete file are as follows:
- Verifying that the request for a determination was made by persons holding the status of owner or legal representative
- Documenting the start and end dates of the headmanship announcement and calculating the objection period accordingly
- Scrutinising from a technical standpoint the measurement and analysis methods used in the licensed organisation’s report
- Investigating at an early stage whether the option of strengthening is technically possible
- Following up the 90-day period allowed for demolition and the liability for the costs of demolition of the administration’s own motion
- Applying for the cancellation of the annotation in the declarations column once the demolition has been completed
Independent Legal provides advisory and litigation services across the whole of the urban transformation process, from the risky structure determination through to the finality of the determination and the subsequent stages of demolition, expropriation and reconstruction.