Expropriation and Seizure Without Expropriation

Basic Characteristics and Conditions of Expropriation

Although expropriation is a process in which the administration unilaterally terminates the right of ownership, this process is divided into strict formal requirements and stages to protect the rights of the owner. According to the Expropriation Law No. 2942, the process proceeds as follows:

1.1. Preparation and Planning Phase

Before implementing a project, the administration determines the boundaries of the properties to be expropriated.

• Scaled Plan: A map of the area to be expropriated is prepared.

• Address and Ownership Determination: The current owners of the property and any encumbrances (mortgage, seizure, etc.) are determined from the land registry records.

1.2. Public Interest Decision and Approval

The first legal requirement for expropriation is the issuance of a "Public Interest Decision" by the competent authority. This decision is the "reason" for the process. Once the decision is made, it becomes final after being approved by the governorship or the relevant ministry.

1.3. Valuation Commission and Estimated Price

The administration establishes an Appraisal Committee consisting of at least three people within its own structure . This committee determines the estimated value of the property with the help of external experts. This value represents the "upper limit" that the administration will offer during the negotiation phase.

1.4. Purchasing Procedure (Negotiation Phase)

In order to reduce the burden on the judiciary, the legislator first compels the administration to reach an agreement with the property owner.

• Invitation to Negotiate: The owner is invited to negotiate via a notification sent through a notary public.

• Negotiation: The parties negotiate based on the estimated price set by the administration.

• Conclusion: If an agreement is reached, a protocol is drawn up, the property is transferred to the administration in the land registry, and the price is paid in cash. In this case, the owner cannot subsequently file a lawsuit for an increase in the price.

1.5. Valuation and Registration Case (Judicial Stage)

If an agreement cannot be reached during the negotiation phase, the administration in the Civil Court of First Instance .

• Pending Issue: If the property owner has filed an "Annulment Lawsuit" in administrative court, the Civil Court of First Instance may await the outcome of that lawsuit.

• Blocking (Storage) Order: The amount determined by the court is deposited by the administration into a bank account in the name of the owner.

• Registration Decision: Upon receiving payment, the court orders the registration of the property in the name of the administration. This decision is final, and ownership is transferred through the land registry.

1.6. Expedited Expropriation (Exceptional Procedure)

According to Article 27 of the Law on Immovable Property Rights; in cases of national defense, territorial defense, or urgent situations decided by the Council of Ministers, the administration may seize the immovable property without waiting for the normal process. In this case, the valuation will be done later.

Expropriation is the process by which the state or public legal entities, in situations where public interest necessitates it, forcibly acquire ownership of a privately owned immovable property or a right thereon, without the owner's consent, by paying the price in advance

This process is not a "purchase," but the harshest administrative intervention against property rights. Here is the anatomy of expropriation in all its aspects:

For expropriation to be legally valid, according to the Constitution and Law No. 2942 on Expropriation, the following four elements must be present simultaneously:

A. Public Interest Decision (Causal Element)

Expropriation should be carried out for the general good of society (roads, schools, dams, defense industry, etc.), not for the benefit of an individual or group. Obtaining a proper "Public Interest Decision" is the first step in the process.

B. Privately Owned Immovable Property (Subject Matter)

Expropriation can only be carried out on immovable properties (land, plots, buildings) belonging to individuals or private legal entities (companies, foundations, etc.).

• Note: The transfer of immovable property between public institutions is subject to the procedure of "transfer of immovable property" (Article 30), not expropriation.

C. Advance Payment of the Consideration (Price)

According to Article 46 of the Constitution, compensation for expropriation in cash and in advance .

• Installment Exception: For large-scale projects such as agricultural reform, major energy and irrigation projects, payments can be spread over up to 5 years. The highest interest rate applied to government receivables will be applied to these installments.

D. Monitoring Administrative and Judicial Stages

Expropriation is not simply a matter of saying "we have acquired this property." The administration must first attempt to purchase it (negotiate), and if an agreement cannot be reached, it must have the price determined through legal means.

2. How Does the Expropriation Process Work? (Systematic Flow)

1. Preparation Phase

The administration determines the boundaries of the property to be expropriated, prepares a scaled plan, and identifies the owners. Then, through the "Valuation Commission," it determines the estimated value of the property.

2. Purchasing Procedure (Negotiation) – Mandatory Stage

The administration invites the owner to negotiate before filing a lawsuit.

• If an agreement is reached: The property is transferred voluntarily. In transfers made in this way, the owner cannot subsequently file a lawsuit for an increase in the price.
• If no agreement is reached: The administration is obliged to file a "Valuation and Registration" lawsuit.

3. Valuation and Registration Case (Judicial Stage)

The administration files a lawsuit in the Civil Court of First Instance. The court, with the help of impartial experts, calculates the true value of the property. The administration deposits (blocks) this amount in a bank. As soon as the payment is made, the court registers the ownership of the property in the name of the administration.

3. Types of Expropriation

• Partial Expropriation: This involves the acquisition of only a portion of the property. If the remaining portion becomes unusable for the owner (for example, if the land becomes too small to build on), the owner may request the expropriation of the remaining portion as well.
• Expedited Expropriation (Article 27): In extraordinary circumstances such as national defense or territorial protection, the property is seized immediately, with procedures other than valuation being postponed.
• Expropriation through Barter: If the owner agrees, instead of cash payment, the property is exchanged for another property owned by the administration.

4. Ways for Property Owners to Seek Redress

• Objection to the Price: If the property owner finds the determined price too low, they can object to the expert report and have the price increased.
• Cancellation of the Transaction: A property owner who claims "There is no public interest here" or "This transaction is irregular" in the Administrative Court .

Note: Expropriation is the termination of property rights through the use of public authority. However, this authority is not unlimited; "Rule of Law," every step of the administration is subject to judicial review, and the owner's losses must be compensated at the "real value."

 Determination and Criteria for Expropriation Compensation

The most fundamental distinction in property valuation is whether the property classified as "Plot" or "Land" . The calculation methods used for these two categories are entirely different.

2.1. Distinction Between Plots and Land (Determination of Classification)

• Land: Areas located within the municipal zoning plan or that actually benefit from municipal services (garbage collection, roads, water, sewage, etc.).
• Land: Areas located outside municipal boundaries or used for agricultural activities, and lacking a zoning plan.

2.2. Land Valuation: “Net Income” Method

The value of land is calculated based on the net agricultural income that the land can generate in a year.

• Crop Rotation Plan: The most profitable crops that can be grown in the field (such as wheat, corn, cotton) are determined according to the data of the Provincial/District Agricultural Directorate.
• Production Costs: Expenses such as seeds, fertilizers, and labor are deducted from income.
• Capitalization Interest: The net annual income earned is divided by an interest rate (typically 4% and 6% ) determined by the risk and location of the area to calculate the base value of the property.

2.3. Land Valuation: “Comparable Sales” Method

The value of the plots is determined by comparing them to other "similar" plots that were sold before the date of expropriation .

• Selection of Comparable Property: The location, zoning status (building permit, comparable value), and surface area of ​​the comparable property should be close to the expropriated property.
• Objective Valuation: The expert determines the final price by scoring the advantages (proximity to the main road, corner location, etc.) and disadvantages of the expropriated land compared to similar properties.

2.4. Valuation of Structures and Trees

If there are buildings or trees on the property, these will be added separately to the land price:

• Buildings: The "Approximate Unit Costs of Buildings" for that year, published by the Ministry of Public Works and Housing, are used as the basis. Depreciation (amortization) is deducted from this cost according to the age of the building.
• Trees: A fixed price is calculated based on the type, age, and productivity (whether or not they bear fruit) of the trees.

2.5. Objective Measures of Value Enhancement (Objective Value Enhancement)

If a property has a special value stemming from its location that cannot be explained solely by mathematical data (for example, a view of the Bosphorus, a very central location), the expert committee may add a certain percentage (usually between 10% and 50%) of objective value increase .

2.6. Factors Not Considered in the Evaluation

• Future Value Increase: The value that the project to be undertaken by the administration (airport, metro line, etc.) will add to the property after its completion cannot be included in the price.
• Luxury Expenditures Made After Expropriation: Decorative additions made to the property after the expropriation decision has been served will not be compensated.

 Note: In expropriation cases, the expert report forms the basis of the court's decision. However, the court is obligated to independently review any errors in the expert report (such as incorrect selection of comparable properties or erroneous capitalization interest rate) and, if necessary, form a new expert panel.

 Lawsuit for Annulment of Expropriation Procedures

While lawsuits challenging the compensation for expropriation are heard in the judicial courts (Civil Court of First Instance), the review of whether the expropriation process is lawful in the Administrative Courts .

3.1. Time Limit and Commencement of Filing a Lawsuit

Malik must file a lawsuit for annulment within 30 days of receiving notification of the expropriation decision .

• Competent Court: located where the property is situated .
• Important: This is a forfeiture period; if missed, the illegality of the transaction can no longer be alleged (except in cases of price disputes).

3.2. Grounds for Annulment (Reasons for Illegality)

In an annulment case, the court reviews the administration's action in terms of five fundamental elements:

1. Authority: The decision was made by an authority that is not legally authorized to carry out the expropriation.
2. Figure: Errors in the procedure for making public interest decisions, irregularities in the suspension and announcement processes.
3. Reason: There is no concrete and technical need to justify expropriation (for example, expropriating land where a road does not need to pass through it).
4. Subject: Targeting a property that cannot be legally expropriated.
5. Purpose: The transaction is carried out for a personal vendetta or political purpose (abuse of authority), rather than in the public interest.

3.3. The Vital Importance of the Request for Suspension of Execution

The most critical strategic move in expropriation cases for a stay of execution .

• Why? Filing an annulment lawsuit in the administrative court does not automatically stop the compensation and registration lawsuit in the civil court.
• Conclusion: If a preliminary injunction is not issued, the property can be registered in the name of the administration and demolition can take place while the administrative lawsuit is ongoing. The moment a preliminary injunction is issued, the civil court of first instance is obligated to treat the outcome of the administrative lawsuit as a "pending issue .

 Expropriation Without Compensation 

This is the situation where the administration intervenes in a property without following a proper expropriation process.

4.1. Physical Intervention

It is the act of the administration constructing a road, park, or building on a property without notifying the property owner or paying compensation.

• Legal Procedure: A lawsuit for "Compensation for Expropriation Without Compensation" is filed in the Civil Court of First Instance.
• Statute of limitations: for these cases .

4.2. Legal Intervention

The property is designated for public services such as "school, green area, hospital" in the zoning plan, but has not been expropriated even after 5 years. In this situation, the owner cannot use or sell the land.

• Legal Recourse: A lawsuit is filed in the Administrative Court.

 Note: An appeal against expropriation is the strongest "preventive" mechanism protecting property rights. While a compensation lawsuit only seeks to answer the question of "how much?", an appeal against expropriation focuses on the question of "should this action be taken?".

 Administrative Responsibility, Expropriation Without Compensation, and Constitutional Review

The administration may infringe upon property rights and the individual's assets while carrying out public services. Compensation for such damages is a requirement of the rule of law.

5.1. Strict Liability of the Administration and Full Jurisdiction Cases

The administration is obligated to compensate for damages arising from the provision of public services (health, road construction, infrastructure works, etc.), even if it is not at fault.

• Equality in the Face of Public Burdens: According to the principle of "equalization of sacrifice," any private harm suffered by an individual for the public good should be compensated by the entire society.
• Full Judgment Case: This is a compensation lawsuit filed in the Administrative Court to remedy violations of personal rights arising from the actions and procedures of the administration . Damages to property, particularly those caused by faulty infrastructure works, are considered within this scope.

5.2. Expropriation Without Compensation Regarding Property Rights

The administration's physical (de facto) or legal intervention in a citizen's property without a proper expropriation decision and without paying compensation constitutes a violation that "affects the essence of the right to property.".

• De Facto Expropriation: This refers to municipalities or public institutions constructing a road or installing a transformer on a plot of land without expropriation. In such cases, the landowner can request the conversion of the property into monetary compensation in the Civil Court of First Instance
• Legal Interference: This refers to a situation where a property is designated as a "social infrastructure area" (park, school, etc.) in the zoning plan for years without being expropriated. This renders the property right "legally unusable," thus creating liability for compensation.

5.3. The Constitutional Court (AYM) and the Individual Application Process

In cases where domestic legal remedies (administrative and Council of State processes) have been exhausted and no resolution has been reached, violations of property rights are brought before the Constitutional Court.

• Violation of Property Rights: Delayed payment of expropriation compensation, low valuation, or expropriation without compensation, where the administration causes hardship to citizens, are considered violations of rights by the Constitutional Court.
• Right to a Fair Trial Within a Reasonable Time: The fact that expropriation and compensation cases drag on for 10-15 years constitutes a violation of the "Right to a Fair Trial" according to the jurisprudence of the Constitutional Court and the European Court of Human Rights. To prevent the erosion of public trust in the law, the Constitutional Court generally rules on violations in such cases and awards compensation for non-pecuniary damages.