Events
The land has been determined as an urban recreation area in the dec plan and parcel plan of qualified real estate application.
One of the shareholders of the immovable is H.Y., filed a lawsuit for confiscation without expropriation; the civil court of first instance, finding that the municipality confiscated the immovable property without expropriation, ruled in favor of the plaintiff for compensation and also decided that the real estate be registered in the name of the municipality. The decision was upheld by the Supreme Court. However, in the approval decision, it was accepted that there was a legal handshake, not a de facto handshake, in the incident. Upon the finalization of the decision, a part of the real estate was registered in the title deed on behalf of the municipality on 1/8/2013. The real estate in question was converted into a commercial recreation area in the implementation zoning plan dated 11/12/2013.
The applicants are entitled to a part share of the said immovable property.A.dan bought it on 31/7/2013. The municipality has filed a deed cancellation and registration lawsuit due to the pre-purchase right arising from this sale. As a result of the case, the registration of the title deed for the shares purchased by the applicants was canceled and the registration of these shares on behalf of the municipality was decided and the amounts deposited with the bank were paid to the applicants.
After the applicants applied for an appeal against this decision, the district court of justice assessed that there was no violation of procedure and law in the decision of the court of first instance. The applicants appealed the decision and the Court of Cassation upheld the decision of the district court of justice.
Claims
The applicants claimed that the property right was violated due to the fact that the municipality used the right of pre-purchase in the real estate of which it is a stakeholder as a result of the court decision issued due to the legal seizure.
Evaluation of the Court
The Turkish Civil Code No. 4721 regulates relations between civil dec persons. In this regard, the public authorities, which are equipped with public power and have superior powers such as expropriation, are required to comply with Article 732 of Law No. 4721. and there may be hesitation about whether it is possible for him to exercise the right to pre-purchase in the continuation clauses. However, since the authority to interpret the legal rules to be applied in the dispute belongs primarily to the courts of instance, the courts of instance are required to comply with Article 732 of the municipality’s Law No. 4721. in accordance with the article, it was not deemed necessary to make a further evaluation regarding the result they reached in the way that the right to pre-purchase was subject to.
The purpose of granting pre-purchase rights to joint owners is to provide stakeholders with the opportunity to prevent foreigners from entering the shared ownership association and to avoid becoming stakeholders with people they do not want, as well as to ensure that the non-useful shared ownership relationship is liquidated over time.
Looking at the concrete incident, it is understood that on 31/7/2013, when the municipality’s right to pre-purchase was born, the real estate was one of the places allocated to the public service in the zoning plan. By the municipality that is allocated to the public service as an immovable subject to the provisions of the Civil Law of thought are not to be left in private ownership since, in other words, since the nationalization of private property on any other shares that are immovable, and to prevent the entry of outsiders into a community property joint ownership Association, the provision of the right of the purpose of the liquidation of partnership’s date of birth is not valid on pre.
However, it can be said that the right to pre-purchase has become a favorable tool for achieving the above-mentioned goals for the period after 11/12/2013, when the real estate was converted into a commercial recreation area.
In the concrete case, since the registration of the municipality’s shareholding in the title deed took place one day after the sale process, it was seen that the applicants were not in a position to foresee that the right to pre-purchase could be used by the municipality when purchasing the immovable share.
On the other hand, the municipality has become the owner of some of the shares of the immovable property based on a court decision that found that it violated the Constitution and the legal regulations on expropriation by not expropriating real estate allocated for public service for a long time, not by purchasing, accepting donations or similar procedures. It has been stated in the previous decisions of the Constitutional Court that the long-term expropriation of an immovable property allocated for public service constitutes a serious interference with the right to property and deconstructs the fair balance that must be observed between the public interest and the owner’s right to property against the owner. Therefore, putting the municipality on the same footing with other stakeholders will not be fair in the circumstances of the concrete event.
A different approach may open the door for public institutions to avoid fulfilling their constitutional obligations related to expropriation, according to Article 46 of the Constitution. it will be able to encourage public administrations that see that practices that explicitly eliminate its article will provide more advantages to be more reluctant to comply with constitutional obligations. Confiscation without expropriation is prohibited by Article 46 of the Constitution. a practice which is clearly against the item and the current and thus intervene in the rights of ownership in favor of the tort of public administrations in these practices result evaluation and comments or to get their rights be seen as legitimate, it cannot be reconciled with the rule of law.
In addition, it is not possible to subject the right to pre-purchase by the municipality during the period when the real estate is allocated as an urban recreation area in the zoning plan, since the right to pre-purchase in Law No. 4721 will not be incompatible with the purpose of the right to pre-purchase of the real estate that must be expropriated is subject to the right to pre-purchase by the administration.
The municipality has provided a serious advantage to the municipality by making the right of pre-purchase, which is a private legal institution regulated in Law No. 4721, available by using the authority of the municipality to change the zoning plan. It was concluded that the right to pre-purchase, which was not legally possible to use at the time of his birth, could be asserted in the courts by exercising a public authority that was not in private legal persons, led to a significant imbalance against the applicants.
The Constitutional Court has decided that the right to property has been violated on the grounds described.