DETERMINATION AND PAYMENT OF ST RIGHT PRICE
The lawsuit is related to the claim for the determination of the price of the permanent overhead right and temporary easement right subject to expropriation based on Article 10 of the Expropriation Law No. 2942 amended by Law No. 4650, and the registration of these rights on behalf of the claimant administration. The court decided to accept the lawsuit; the judgement was appealed by the representative of the claimant administration. There is no inconsistency in the valuation of the immovable property numbered 371 parcel in … Village 371, which is in the nature of land, on the basis of the net income it will bring if it is used as it is, in determining the provisions of the permanent right of superstructure and temporary easement right by specifying the rate of depreciation by taking into account the nature of the immovable property, the surface area of the whole, the geometric condition and the pipeline route, and in deciding to block the determined price and to pay it to the defendant party without waiting for the finalisation of the judgement (Court of Cassation 5th. Civil Chamber 2020/12243 E., 2021/2880 K).
PROCEDURE FOR THE ESTABLISHMENT OF THE RIGHT OF SUPERSTRUCTURE
The plaintiff requests the establishment of an easement right to build a private school and to use the immovable property for 49 years. The request is to establish an easement right related to the right of superstructure regulated in Articles 726, 826-836 of the Turkish Civil Code. This easement, which authorises a third party to build a structure on or under the immovable property or to maintain an existing structure, and which is defined as a superstructure right, is established upon the existence of a valid legal reason such as a formal contract or a death-dependent disposition and upon the registration request of the owner (Gürsoy/Eren/Cansel, Turkish Property Law, Ankara 1978 p.952). Article 827 of the Turkish Civil Code, which regulates the content and scope of the overriding right, explicitly mentions the official deed. What is meant by the official deed here is the agreements prepared by an official officer and signed by the parties in the presence of the official officer, including the seal, signature and approval of the official officer. Article 26 of the Land Registry Law also includes the establishment of ‘right of overlay easement’ among the transactions to be carried out by issuing an official deed at the land registry offices. After the procedures in accordance with the procedure are completed, the easement rights up to 30 years are registered in the rights and obligations column of the immovable property, and the independent and permanent easement rights exceeding 30 years are registered on a separate registry page in connection with the main immovable property (14th Civil Chamber of the Court of Cassation 2016/13619 E., 2019/5062 K.).
TERMINATION OF INDEPENDENT AND PERMANENT OVERHEAD RIGHT
Pursuant to Article 826 of the Turkish Civil Code No. 4721 and Article 10 of the Land Registry Regulation, it is stated that independent and permanent easement rights, which have a duration of at least 30 years and whose disposals are not restricted or subject to permission, shall be registered as immovable property on a separate page of the land registry; independent and permanent rights registered as immovable property in the land registry may be transferred to third parties, passed to heirs and all kinds of real and personal rights may be established on them.
According to Article 828 of the Turkish Civil Code No. 4721, if the independent and permanent superstructure right is registered in the land registry, this page is closed when the superstructure right expires. The pledge rights, all other rights, restrictions and obligations on the overhead right registered as immovable shall expire with the closure of the page (14th Civil Chamber of the Court of Cassation 2016/16689 E., 2019/4556 K.).
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