What is a Right of Way?
A superstructure right is an easement right that authorises the owner to build a structure under or on someone else’s land or to maintain an existing structure. The owner of the right of superstructure (the holder of the easement right) gains the right of ownership over the construction on the land. The right of superstructure can only be established on immovable property. The ownership of the land on which the right of superstructure is established remains with the owner, but the immovable property built on the land belongs to the owner of the right of superstructure.
The right of superstructure is regulated in Articles 726, 826 and 836 of the Turkish Civil Code (TCC).
An immovable property owner may establish an easement right in favour of a third party, which authorises the third party to construct a structure or maintain an existing structure on or under its land. Unless otherwise agreed, this right is transferable and passes to heirs. If the right of superstructure is independent and permanent, it may be registered as immovable in the land registry upon the request of the owner of the right of superstructure. A superstructure right established for at least thirty years is of a permanent nature (TMK Art. 826).
The ownership of the structures constructed on or under the land belonging to another person on the basis of a superstructure easement shall belong to the owner of the easement right. The establishment of condominium ownership or condominium easement on the independent sections of a building that are suitable for independent use is subject to the Condominium Law. A superstructure right cannot be established on independent sections separately (Article 726 of the TMK).
DURATION OF THE RIGHT OF SUPERSTRUCTURE:
The right of superstructure may be established as an independent right for a maximum of one hundred years. After the expiry of three quarters of its term, the right of overlord may be extended for a new term of maximum one hundred years at any time by complying with the form prescribed for its establishment. The commitment made in advance in this regard is not binding (Article 836 of the TCC).
If this right, which is defined as a superficies right, is independent and permanent, it may be registered as ‘immovable’ in the land registry upon the request of the right holder in accordance with the provision of paragraph 3 of Article 826 of the Turkish Civil Code. The overriding rights established for at least thirty years are considered to be permanent. In order to be considered independent, the transfer of the overriding right to another person must not be restricted by the parties. As a rule, the establishment of a superstructure right shall be made by the parties first agreeing in writing or verbally on the establishment of a superstructure right, going to the relevant land registry, declaring their will in the presence of the official authorised to issue official deeds and making a superstructure right establishment deed, and then requesting the official to annotate or register the superstructure right as an easement right in the immovable record. If there is no unity of will between the parties for the establishment of the right of superstructure and if the owner of the building has built a structure on someone else’s immovable without consent, this will be ‘wrongful construction’ and the owner of the record may sue for the prevention of wrongful seizure by making use of Article 683 of the Turkish Civil Code. Since Article 827 of the Turkish Civil Code stipulates that an official deed shall be sought for the establishment of the right of superstructure, it should be accepted without hesitation that it is only possible to establish the right of superstructure with an official deed by the method described above. What is meant by an official deed is a contract prepared by an official officer, signed in the presence of the parties and approved by the official officer with a seal and signature. Roads are immovable properties which are allocated for public use with or without money, or which can be proved by documents or by the words of experts or witnesses that they have been used by the public since time immemorial. After these general explanations, when it comes to the concrete case; the immovable property on which the overriding right is established is in the nature of a road abandoned for public benefit. Since it is not possible to establish a registration provision on the road abandoned for the benefit of the public and to establish a superstructure right easement, it was not deemed correct to establish a judgement with illegal grounds, while the lawsuit should be dismissed. (Y14HD-K.2020/7710).
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