Interference of Energy Companies with Usufruct Rights

Legal Risks, Precautions, and Strategies for Investors and Company Executives

1. Introduction: Usufruct Rights and Their Importance in the Energy Sector

The right of superficies, in Article 826 and subsequent articles of the Turkish Civil Code, is a real right that grants the authority to construct a building on immovable property belonging to another or to use an existing building. In the energy sector specifically, this right plays a critical role in the construction of projects such as electricity generation plants, wind turbines, solar panels, and natural gas storage facilities.

From an investor's perspective, usufruct rights provide long-term security of use, can be used as collateral with banks, and are one of the most important pillars of project financing. However, interference by energy companies with usufruct rightscarries serious legal risks.

2. What is Interference with Superior Rights?

of interference refers to actions taken by someone who is not the owner of a property that hinder the rights of the owner or holder of a right (usufruct right).
In energy projects, this occurs in the following situations:

Unauthorized entry into the property during the usufruct period
Unauthorized use of facilities or interference with operation
Preventing the usufructuary from developing the project as planned
Third parties operating in the energy sector for agricultural, commercial or other purposes
Illegal construction by the owner or third parties

3. Typical Causes of Usufruct Disputes in the Energy Sector

Energy companies' interference with usufruct rights mostly arises for the following reasons:

3.1. Expropriation and Urgent Expropriation Processes

Energy projects can be carried out through expedited expropriation decisions under the Electricity Market Law and the Petroleum Law . However, if sufficient coordination is not ensured with the usufruct right holder during the expropriation process, a violation of rights may occur

3.2. Conflicting Licenses and Permits

The Energy Market Regulatory Authority (EPDK) may grant operating licenses to different companies in the same area. This situation may result in a construction or infrastructure intervention that affects the facilities of the company holding the usufruct rights.

3.3. Intervention by the Landowner

One of the most common disputes is when a property owner interferes with facilities in a way that exceeds their own ownership rights during the usufruct period. For example, constructing buildings without permission around an energy production facility or blocking access roads.

3.4. Practices of Public Institutions

Municipalities can physically interfere with the property subject to usufruct rights through zoning plan changes or road widening projects. This situation may reduce the production capacity of the project.

4. Legal Grounds

Interference by energy companies with usufruct rights multiple legal regulations :

Turkish Civil Code Articles 826-836: Definition, scope and protection of the right of superficies.
Turkish Civil Code Article 683: Prohibition of interference by those who are not the owner.
Turkish Code of Obligations, Articles 49 and 112: Compensation arising from torts and breach of contract.
Electricity Market Law (Articles 15, 16): Right of licensed energy companies to protect their facilities.
Zoning Law: Preventing construction that violates permits.
Expropriation Law: Right of the usufruct holder to demand compensation

5. Legal Remedies Available in Case of Intervention

For energy company executives and investors, a swift reaction is crucial. The main avenues for intervention are:

5.1. Action to Prevent Interference

According to Article 683 of the Turkish Civil Code, a lawsuit for "prevention of interference" can be filed against individuals who unlawfully interfere with immovable property.
Example: Preventing third parties from constructing buildings around a wind turbine without permission.

5.2. Compensation Claims

Under Article 49 of the Turkish Code of Obligations, both material and moral damages can be claimed. Claims may include production losses, maintenance costs, or penalties based on the contract.

5.3. Precautionary Measures

To ensure project financing and production continuity, a preliminary injunction can be requested from the court to temporarily halt the intervention.

5.4. Administrative Applications

Applications made to the Energy Market Regulatory Authority (EPDK), the Ministry of Environment, Urbanization and Climate Change, or the relevant municipalities are particularly effective in preventing unlicensed construction.

6. Risk Management from the Perspective of the CEO and Investors

Interference with usufruct rights poses not only legal but financial and reputational risks .
Investors are advised to follow these strategies:

6.1. Contractual Guarantees

Explicit "no interference" clauses should be added to the surface rights agreement
The contract with Malik must clearly define the penalty and compensation clauses
In the case of expropriation, the sharing of compensation and the management of the process should be regulated

6.2. Technical Measures

The facility area must be protected with physical security measures
Periodic area surveys should be conducted using drones
Third-party access to access roads and network infrastructure should be restricted

6.3. Preliminary Legal Review

Mortgages, usufruct rights, or other limited real rights should be checked in the land registry records
The risk of conflict between zoning plans and EPDK (Energy Market Regulatory Authority) permits should be analyzed

7. Case Study Analysis

A solar power plant company invested in a property it leased for 30 years. In the 5th year of the project, the property owner leased a portion of the same area to an agricultural company for cultivation. This reduced the efficiency of the solar panels and caused a 20% loss in the energy company's production revenue.

The Solution Process:

The company has sent a notarized notice to the owner.
A lawsuit has been filed to prevent the intervention and to claim compensation.
The court issued a preliminary injunction, halting the agricultural activity.
At the end of the trial, the property owner both ceased the interference and was compensated for the loss of income.

8th International Perspective

Interference with usufruct rights in energy investments is also a topic of discussion in international arbitration proceedings. Particularly under the Energy Charter Treaty , interference with foreign investors may violate the principle of investment protection. In such cases, lawsuits can be filed not only in Turkish courts but also before ICSID or UNCITRAL.

9. Conclusion and Recommendations

Energy companies' interference with usufruct rights is not just a property dispute; it also poses a critical risk to project financing, production capacity, and investor confidence.
CEOs and investors can minimize this risk by taking the following steps:

Strengthen your usufruct agreements with legal risk analysis.
Take swift and documented action upon detecting a malfunction.
Use the precautionary measures mechanism proactively.
Establish strong communication with EPDK and relevant ministries.
Regularly inspect the project site from both technical and legal perspectives.

💡 In summary: In the energy sector, the right of superficies is the cornerstone of a project. Protecting this right is a shared responsibility not only of the legal department but also of the CEO, CFO, technical team, and investors. Proactive measures minimize the risk of interference while guaranteeing the sustainability of the investment.

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