Events
The building in which the applicants have five independent sections, including four workplaces and an apartment, has been identified as a risky structure and demolished in accordance with the Law No. 6306 on the Conversion of Disaster Risk Areas. The condominium on the immovable property was converted into a joint property after the demolition process. At the meeting held by the stakeholders, it was decided to accept the construction contract and the project for the floor equivalent, which provides for the renovation of the demolished apartment building. According to the new share, the applicants were given two apartments at the level of jeans. Although the applicants participated in this meeting, they did not participate in this decision.
On top of this, other stakeholders stated that the applicant’s shares are subject to the provisions of Article 6 of the Law No. 6306. in accordance with the article, it has applied to the Provincial Directorate of Environment and Urbanization (Administration) for resale. The estimated unit value of square meters of real estate has been determined as TL 39,000 by the administration and the total value of the applicants’ shares has been determined as TL 6,396,000. The administration has decided that the applicants’ shares should be sold by auction.
The applicants filed a lawsuit in the Civil Court of First Instance requesting the cancellation of the decision of the Board of Owners and the correction of the contract. The Court of First Instance decided that the implementation of the construction contract should be stopped as a precaution with the decisions taken at the meeting of the Board of Owners. Upon the decision of the aforementioned injunction, the Administration canceled the transaction related to the sale. The Civil Court of First Instance ruled to lift the injunction on the condition that a guarantee of 840,000 TL be deposited at the request of the defendants. After that, sales operations were continued by the Administration. As a result of the tender, the applicants’ shares were sold for a total price of TL 6,400,000 and the sale price was paid to the applicants.
The lawsuit filed by the applicants with a request to cancel the transaction for the sale of their shares was rejected by the Administrative Court on the grounds that there was no violation of the law in the sale of the shares of the applicants who did not participate in the decision taken by the Board of Owners.
The Administrative Court decided to dismiss the case from the point of view of the procedure for determining the value of the shares, and to dismiss the case from the point of view of the duty in terms of the tender process. In the justification of the decision; it was stated that the lawsuit filed against the sales decision, which is the basis of the tender, was rejected, and therefore there was no violation of the law in the tender process.
Count
The applicants claimed that the right of effective application in connection with the right of ownership was violated due to the fact that the shareholder who did not consent to the decision of the Board of Owners was sold by the public authorities and the sale price was low due to the fact that the lawfulness of the decision of the Board of Owners on the determination of a new method of sharing of real estate demolished due to the fact that it is within the scope of a risky structure was not examined.
Evaluation Of The Court
A. From the Point of View of an Allegation of Violation of the Right of Effective Recourse in Connection with the Right of Ownership
Article 35 of the Constitution. as a rule, the article does not require the issuance of an injunction in favor of the owner who filed a lawsuit in the judicial authorities for the purpose of protecting the right to property. However, in some cases, the actual protection of the right to property may depend on the court’s decision on a number of measures before the final judgment. In particular, in cases where there is a risk that a possible final decision to be made in favor of malik will be inconclusive, it may become necessary for the court to take measures to prevent the final decision from losing its ability to be applied while the trial is still ongoing. The owner must be able to take advantage of the consequences of a provision issued in his favor by the courts regarding the protection of the right to property. It is clear that the provision in favor will not have much meaning from the point of view of the owner after it has no ability to be implemented. In addition, this situation also eliminates the effectiveness of judicial recourse.
In the event, it was understood that the legal audit of the decision of the Board of Owners could not be carried out before the sale process. In this context, it was necessary to take into account that it was possible for the Administration to continue the sales transactions after the Court of First Instance lifted the injunction. Since the existence of a decision of the Board of Owners is necessary for the administration to have sales authority, the suspension of the implementation of this decision by the measure prevented the continuation of sales transactions and the likely decision to be made in favor of the applicants to be inconclusive. Although the removal of the injunction is within the jurisdiction of the courts -given the purpose of the injunction to prevent the final decision from being inconclusive- it must be shown with an appropriate and sufficient justification that there are facts that justify the decision to remove it.
The Court of First Instance relied on the fact that the building was destroyed when changing the nature of the injunction. However, the building was demolished both before the meeting of the Board of Owners and before the lawsuit was filed with the Civil Court of First Instance with the request to cancel the decision taken at this meeting. Therefore, the building was already demolished at the time of the injunction decision. On the other hand, the fact that the building has been demolished does not eliminate the risk that the applicants’ shares will be sold by the Administration in accordance with Law No. 6306. The conditions observed by the Court of First Instance in deciding on the measure to stop the implementation of the decision of the Board of Owners have not changed. In fact, the applicants have no complaints about the demolition of the building. The applicants complain that the sharing method is not fair. Whether the new method of sharing real estate is fair or not is a matter independent of the demolition of the building on it. For this reason, the decision of the court of First Instance of the board of proprietors of the building to be demolished hukukilig which does not affect the phenomenon, based on the precautionary measures is a necessary measure, and that the collateral is not sufficient to admit of the defendant under the circumstances of the case as it’s not a reasonable interpretation of concrete has been assessed.
As a result, due to the fact that the Court of First Instance lifted the injunction to stop the implementation of the decision of the Board of Owners, the applicants were deprived of the opportunity to have their complaints about the legality of the decision of the Board of Owners examined before losing their property rights. Thus, a legal mechanism that has been found to be effective at the theoretical level has lost its capacity to offer a chance of success in a concrete event due to this application of the Court of First Instance.
The Constitutional Court has decided that the right to effective recourse has been violated on the grounds described.
B. From The Direction Of Infringement Of Property Rights
Although it is within the discretion of the public authorities to arrange for the sale of shares of stakeholders who do not consent to the decision of the two-thirds majority of the Board of Owners on the new form of sharing of real estate, this does not mean that the Administration can use this authority arbitrarily. In this context, the stakeholders must have reached a decision as a result of an adequate negotiation and this decision should not clearly damage the interests of the stakeholders who remain in the minority. The fact that the minority stakeholders did not participate in the decision forcing them to accept a project with obvious imbalances compared to the former state of the immovable property, which is clearly contrary to their interests, does not justify such a heavy intervention as the sale of shares. If the objections of the minority shareholders to the new sharing method decided by the majority of the Owners’ Board of the shares are heard by a judicial authority and put up for sale without meeting the relevant and sufficient grounds, it cannot be said that the most mildly damaging tool is resorted to.
The audit of the legality of the sale decision also requires examining whether the applicants’ refusal to consent to the new form of sharing is based on a justified basis. Without examining whether the new form of sharing is balanced and fair, it cannot be said that the legal audit of the sales decision is a real judicial audit. Otherwise, the administrative court will have conducted a purely formal audit. Therefore, the approach of the Regional Administrative Court that excludes the objections of the applicants to the new form of sharing of real estate from the examination is 35 of the Constitution. it has led to the result that an audit is not carried out in accordance with the requirements imposed by the article on the state.
On the other hand, the Administrative Court’s supervision, which limits the share ratio in the form of a new share to whether it is in accordance with the old method of sharing, is also subject to Article 35 of the Constitution. it cannot be said that it complies with the guarantees in its article. Article 35 of the Constitution. in the sense sought by the article, an audit requires examining whether the new form of sharing is economically balanced. This is also a matter that can be understood by conducting an expert review if necessary. As a result of the fact that the Administrative Court was satisfied with a simple audit without conducting an examination of whether the new form of sharing was fair and balanced – taking the opinion of an expert, if necessary – the sale of the applicants’ shares could not be shown to be a last resort.
It is important to pay the real value of the immovable property in order to balance the burden imposed on the applicants by selling their shares against their will. In this context, the first thing to be emphasized is that the stakeholder whose shares have been sold has not been deprived of his/her property for free. The sale of the stake of the stakeholder who does not consent to the evaluation method imposes a rather heavy burden on him. However, this burden is compensated by paying the fair value of the share to the stakeholder. In this context, it is an important assurance that the valuation and sales process is carried out by the Directorate of Environment and Urbanization and not by the stakeholders requesting sales.
The Administrative Court acted from the assumption that the compliance of the sale transaction with the law automatically leads to the conclusion that the tender is also in accordance with the law. This approach of the Administrative Court poses the risk that the tender process will not be subject to a full legal audit. Because although it is mandatory to make a sales decision by the Administration in order for the tender to be held, the presence of a sales decision and compliance with the law is not the only condition for the legal compliance of the tender. One of the conditions of the tender is that the value of the shares to be put up for sale has been duly determined by the Administration. Irregularities in determining the value of shares also affect the legality of the tender process. Therefore, the Administrative Court’s interpretation, which reduces the legal supervision of the tender process to the examination of the legality of the sale decision, has made judicial supervision ineffective.
Given all these considerations, when it is filed with the most important issue of the request for the cancellation of the tender procedure for the value of the shares determined in accordance with whether or not the issue is resolved before the value is at the discretion of the applicant to make a decision without examining objections to the price and sales of shares by the selling outside of the interference with property rights to any applicant will be loaded with burdens of balancing it in a case brought for the purpose of assuring that have arisen as a result of not having concrete. In this case, it has been concluded that the interference with the applicants’ right to property is also not proportionate.
The Constitutional Court has decided that the right to property has been violated on the grounds described.
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