Property Rights Violations in Urban Transformation Law

As observed in every earthquake-prone region, it is vital to take precautionary measures before disasters occur. In this regard, buildings must be constructed according to quality standards, and those that do not meet these standards must either be demolished or reinforced in a controlled manner. In this research, decisions that can be made after identifying risky buildings in urban transformation law will be examined, and property rights violations that may arise as a result of these decisions will be investigated.

I. URBAN TRANSFORMATION AND LAW NO. 6306

Urban transformation is crucial for creating earthquake-resistant and safe living spaces. It is regulated by Law No. 6306 on the Transformation of Areas Under Disaster Risk ("Law No. 6306"). In urban transformation, the main principle is to demolish unstable buildings and replace them with new, solid, and durable buildings with standards. The first article of Law No. 6306 clarifies the purpose of urban transformation.

Regulations made to prevent irregular urbanization can impose certain restrictions on property rights and the right to housing. In this context, it is mandatory to provide solutions to private law issues in practice. Our study will focus on the restriction of property rights and the violations of property rights arising from private law applications in urban transformation.

II. RISKY BUILDING

2.1. DEFINITION OF A RISKY BUILDING

According to Article 2 of Law No. 6306, a risky building refers to structures that have reached the end of their economic lifespan or are at risk of collapsing or suffering major damage. As a result, risky buildings can be classified into three categories: buildings that have completed their economic lifespan, buildings at risk of collapsing and buildings at risk of severe damage.

2.2. IDENTIFICATION OF RISKY BUILDINGS

The identification of risky buildings is carried out according to the procedures specified in the Implementing Regulation of Law No. 6306. The property owner and legal representatives may request the identification of risky buildings, on the other side tenants do not have the right to make such a request. According to Article 3 of Law No. 6306, property owners and legal representatives have a 15-day period to appeal for the identification of a risky building.

The right of appeal is granted only to property owners, and tenants cannot use it. If no appeal is made or if the appeal is rejected, the identification of the risky building becomes conclusive. Once the identification becomes conclusive and the demolition decision is notified, the building will be evacuated and demolished.

III. DECISIONS THAT CAN BE MADE AFTER THE IDENTIFICATION OF A RISKY BUILDING

After the decision regarding the risky building becomes conclusive, the Administration gives property owners 90 days to demolish the building. Article 5 of the law states that it is essential to reach an agreement with property owners for demolition; however, if the demolition is not carried out by the owners, the administration will demolish the building.

Therefore, according to the current regulation, risky buildings must be demolished within a maximum of 90 days after their identification. Otherwise, the administration will implement the demolition decision. The time starts with the notification of the risky building decision to the property owners by the administration. The notification also includes a notice that if the property owners do not carry out the demolition, the administration will carry it out.

Following the identification of a risky building, some decisions are made to eliminate the danger posed by the building. These decisions may appear as reinforcement or demolition. If a demolition decision is made, whether or not a new building will be constructed in place of the demolished one will also result in different outcomes.

3.1. REINFORCEMENT DECISION

Although it is not clearly mentioned in Law No. 6306, the Implementation Regulation, Article 8/5, paves the way for the reinforcement decision. According to this regulation, the reinforcement decision can be made with the written consent of 4/5 of the property owners, as specified in Article 19/2 of the Condominium Law (KMK).

3.2. DEMOLITION AND RECONSTRUCTION DECISION

Article 6 of Law No. 6306 states that for the decision to demolish and reconstruction, an absolute majority is sufficient. In the previous regulation, a 2/3 majority was required, but with the amendment made by Law No. 7471 dated November 7, 2023, the required majority was reduced to an absolute majority. In the doctrine, it is stated that the purpose of this change is to ensure rapid urban transformation and facilitate quicker decision-making.

In fact, it is not compulsory for property owners to make a demolition decision, as the risky building will be demolished by the administration after 90 days in any case. However, the aim of the law is to ensure that, alongside demolition, new constructions are made to promote planned and healthy urbanization. In this regard, Article 6 of Law No. 6306 clearly states that the evaluation of parcels should be carried out by the property owners. Additionally, when making a reconstruction decision, property owners must also decide who will carry out the construction and under what conditions. Furthermore, when there are more than one owner, all owners must decide in the demolition and reconstruction decision whether the new building will be constructed individually or by combining the parcels.

Although the decision is made by an absolute majority, it is not possible to say that this majority can make all kinds of decisions. In the reconstruction decision, the rights of the minority must not be violated, and property rights must not be infringed. In practice, the most common property rights violations occur during the reconstruction decision.

In the scope of our study, before giving concrete examples of property rights violations, it is helpful to examine the basic information regarding whether the restriction of property rights is in accordance with the law.

IV. LEGAL CRITERIA FOR THE RESTRICTION OF PROPERTY RIGHTS

Property rights are guaranteed under Article 35 of the Constitution as a rem right, granting the owner the right to use, enjoy, and dispose of their property. If the property right is violated, the person whose right has been violated is entitled to file a lawsuit under Article 683 of the Turkish Civil Code (TMK). The criteria for limiting fundamental rights and freedoms are aligned with the case law of the European Court of Human Rights and are found in the Constitution.

4.1. THE PRINCIPLE OF LEGALITY

The principle of legality requires that any restriction on rights and freedoms be clearly defined in the law, be understandable, and not be arbitrary. Restrictions must be general, clear, and unambiguous. In this context, since urban transformation law and the restriction of property rights are regulated by Law No. 6306, it can be said that the restriction is in line with the principle of legality as long as it complies with the law.

4.2. THE PRINCIPLE OF PURPOSEFULNESS

The principle of purposefulness requires that the legal justification for the restriction be explicitly stated in the law and that the purpose of the restriction be legitimate. In modern states, the goal is to ensure public interest, social justice, and social security. It can be widely accepted that in urban transformation, public interest is prioritized, and it is essential to transform the risky buildings in cities as soon as possible. It would even be possible to argue that urban transformation is the responsibility of the government.

4.3. THE PRINCIPLE OF PROPORTIONALITY

The principle of proportionality requires that the limitation be suitable, necessary, and proportionate to achieve the goal. When evaluated within this context, there is no doubt that the measures introduced to ensure the rapid identification, demolition, or reinforcement of risky buildings that could endanger human lives in case of a disaster are necessary for urban transformation.

In this context, when identifying private law issues within urban transformation law in specific cases, compliance with legal criteria must be reviewed meticulously.

V. PROPERTY RIGHTS VIOLATIONS UNDER PRIVATE LAW IN URBAN TRANSFORMATION

In Urban Transformation Law, it is not always possible to say that every decision taken according to the procedure after identifying a risky building is in accordance with the law and equity. Although the restriction of property rights is regulated by law and subject to certain conditions, especially in the case of a reconstruction decision, not every decision taken by a simple majority may be measured and proportional. The property rights of stakeholders may conflict with each other, and decisions must be made carefully to avoid violating the property rights of the minority.

In urban transformation law, private law issues arise primarily concerning the property rights of stakeholders. Concrete examples of property rights violations include decisions made without following the proper meeting procedure, minority owners selling their shares below market value after not agreeing with the decision, the new share allocated to a stakeholder not being equivalent or similar to their previous share, contractors being promised a fee or land share significantly higher than the value of the work, the failure to make a proportional distribution of shares to be transferred to the contractor among stakeholders in the case of the construction contract of flat for land, and the unfair or disproportionate reduction of the value and land shares of independent units in the new building.

At this point, when we conduct a review of compliance with the law in the evaluation of property rights violations, we observe that the failure to follow the proper procedure for meetings results from non-compliance with the legally regulated procedure, thus violating the principle of legality. Similarly, we conclude that situations where the new share allocated to a stakeholder in the new building is not of the same or similar nature as their previous share, such as when their old apartment was on a high floor with a view of the Bosphorus, but they are allocated an apartment on a lower floor in the new building, or when their previous apartment was a commercial space and the new apartment is residential, violate the principle of proportionality.

In conclusion, property rights must be protected unless intervention is necessary. The necessity of the intervention should be assessed in line with the principle of honesty and based on the specific circumstances of the case, with the legal criteria in mind. Thus, while the restriction of property rights under urban transformation law serves a legitimate purpose, property rights should still be protected under private law, and the process must be carried out in accordance with the law and in a proportional manner.

CONCLUSION

Urban transformation is a necessity in our country which is an earthquake prone country, but the regulations related to urban transformation law bring about many legal debates. Our study focuses on the decisions that can be made after identifying risky buildings within the scope of urban transformation and the impact of these decisions on property rights. The principles of urban transformation, which aim to protect the right to life, emphasize the importance of preventing violations of property rights and ensuring that buildings are transformed swiftly with minimal victimization.

The identification of risky buildings has been explained, and since the decisions made after identifying risky buildings have significant implications for property rights, this issue has been examined. Thus, the views in the doctrine regarding the impact of urban transformation law on property rights have been presented.

After clarifying the practical aspects, it was emphasized that interventions in property rights should be made in compliance with the principles of legality, purposefulness, and proportionality, with the principle of proportionality being explained in detail, as it is crucial for our study. It was noted that while the limitation of property rights under Law No. 6306 for the protection of the right to life is not unlawful, it cannot be said that every decision made in accordance with the procedures outlined in the law will not result in a violation of property rights.