Flood-Prone Structure (TMK 724)

1. Introduction: Why Are Flood-Related Building Disputes Difficult?

The problem of "encroaching structures" arises when construction is carried out between neighboring properties without awareness of the boundary or without sufficient care taken regarding the boundary. The problem is not merely a boundary violation ; it also disrupts the delicate balance established between property rights , economic value , and urban planning regulations . On one hand, there is the principle of the integral part of the land, and on the other, the risk of waste resulting from the demolition of a completed or economically valuable structure . Therefore, the Turkish Civil Code (TMK) regulates the problem of unlawful/encroaching structures, along with its exceptions, allowing for both demolition and compensation for the construction

The challenging aspect of handling encroaching building cases in practice is single rightanswer. Both demolition and compensation may be justified in the same case; the final decision good faith, the superiority of the building's value over the land, a comparison of excessive damages, the possibility of subdivision/reconstruction , and timely objections from neighboring owners .

2. Normative Framework: Joint Reading of Articles 722–725 of the Turkish Civil Code

Disputes regarding illegal constructions require the combined interpretation of several provisions of the Turkish Civil Code:

Turkish Civil Code Articles 722–723 (Unlawful Construction): As a rule, a structure encroaching on another's property is dismantled or demolished; if dismantling is not carried out, appropriate compensation comes into play. In cases of bad faith, the cost of materials and resulting damages may differ.
Article 724 of the Turkish Civil Code (Registration by Transfer): If the builder is acting in good faith and the value of the building clearly exceeds the value of the land , it allows for the transfer of all or a sufficient portion of the ownership from the landowner in exchange for a reasonable price
Article 725 of the Turkish Civil Code (Encroaching Structure – Tolerance Regime): In cases where the circumstances justify it, tolerating the structure at a reasonable price, establishing an easement , or transferring ownership may be considered. A neighboring owner's short-term objection upon learning of the encroachment aims to prevent the structure from escalating.

This four-point structure provides the threshold conditions and balancing principles that the judge will apply when distinguishing between " demolition and compensation for restructuring ." The main aim is to prevent unjust enrichment and economic waste while protecting property rights .

3. Good Faith: The Key to Protection

In cases of encroachment , good faith is the first filter that defines the protection circle. Good faith means that the person was unaware that they were encroaching on the boundary of a neighboring plot , or that they could not have known, even with the diligence and care expected of them . Therefore, simply saying "I didn't know" is not enough; it is assessed whether the duty of care was fulfilled, that is, whether the technical stages such as application, licensing process, sketches, cadastral records, and survey-marking were carried out seriously and honestly .

From an application perspective, three practical criteria stand out:

Pre-construction preparation: Timely completion of application and boundary determinations, and a control mechanism .
Visibility and detectability: Whether the flooding could have been detected with reasonable attention during the early stages of construction.
Warning from the other party: Early warnings, written objections, notices, and actual attempts at obstruction from the neighboring property are decisive in assessing good faith.

If bad faith is present, it is not possible to benefit from the protection of registration by assignment under Article 724 of the Turkish Civil Code; in this case, the issue of demolition and damage-compensation comes to the forefront.

4. The "Clear Superiority" of Building Value over Land Value

For Article 724 of the Turkish Civil Code to be applicable, good faith alone is not sufficient; the economic value of the structure must clearly exceed the land value. The "clear" threshold is filled in by the technical facts of the case:

Building completion level (rough and fine construction, installations, facade, architectural features),
Use value (residential, commercial, industrial),
of the overflowing portion on the entire project,
Regional comparable sales and free market conditions.

Sometimes, the encroaching area may appear small in terms of square meters; however, its geometric impact significantly reduces the subdivision capability or market value of the plot. In these cases, a purely "price per square meter" approach is insufficient . To determine the superior value, a collaborative expert assessment involving real estate appraisers , surveyors , and construction specialists should be preferred.

5. Scope of the Concept of "Fair Price"

The fair price is not solely the market value per square meter of the encroaching part . In accordance with the principles of equity and equalization, the following factors are considered:

Current market value of the encroaching portion: Value close to the date of the lawsuit; takes into account the comparison between the building and the land.
Depreciation in the remaining portion: Factors such as the alteration of the plot shape, reduced land use, elimination of the possibility of subdivision/consolidation, and the impact of frontage on roads or green areas.
Mandatory technical expenses: The cost of additional measures caused by flooding, such as retaining walls, fire escape distances, water drainage, or insulation.
Offset and interest parameters: Advance payments, deposited amounts, interest to be accrued until the decision date.

This approach prevents unjust enrichment and also prevents the price from becoming a unilateral punitive tool. The court must clearly state in the judgment that the price is determined as a deposit condition for registration , the registration provision linked to the payment, and the offsets

6. Destruction-Tolerance Balance and the "Excessive Damage" Criterion

The central question is: Is demolition justified, or is it a costly undertaking? The answer lies in the comparison of "excessive harm." Demolition;

The complete project or the cessation of its vital functions ,
Public safety and static risks,
Economic waste reaching exorbitant levels

If it leads to such consequences , the assessment favors tolerance. Conversely:

the disturbance a minor intervention ,
If demolition does not disrupt the integrity of the project and at a reasonable cost ,
If good faith is weak or nonexistent,

Demolition emerges as the primary solution. To strike this balance in the trial, two alternative technical solutions must be discussed during the investigation: "What happens if it is demolished?" and "What happens if it is tolerated?" When the cost-value-public order impacts of both scenarios are tabulated, the judge's discretion becomes predictable.

7. Turkish Civil Code Article 725 and the Folding Regime: Easement or Transfer of Ownership?

Encroaching structures cannot be resolved solely through "transfer of ownership." In cases where circumstances permit, establishing an easement may be a more balanced solution. For example, in roof eaves encroachments, an easement similar to an air right can resolve the problem; in basement wall encroachments, a ground easement may be functional. However, if the encroachment affects the main mass of the structure and can be separated into independent parts, partial ownership transfer offers a fairer solution.

The following criteria are important when making a choice:

Subdivision-consolidation possibility: Is it possible to create parcels of land with dimensions compliant with zoning regulations?
Plot geometry and accessibility: Is the resulting parcel economically and technically feasible?
Public order – permit: Does the easement or transfer conflict with the integrity of the permit and project?
Cost balance: Is the compensation to be paid to the owner through tolerating the damages clearly more rational than demolition ?

8. The 15-Day Objection Principle (Early Warning Effect)

The neighboring property owner is expected to act as soon as they become aware of the encroachment. A short-term objection will hinder the progress of the construction; the builder is also forced to correct the process immediately . The fact that objections are not bound by formal requirements means that in practice they encompass many actions such as notices , applications to the municipality , requests to halt construction , email/message records , or physical obstruction . Timely objection strengthens the builder's "reason for knowing" and weakens the protection of good faith .

Therefore, documenting the moment of learning about the incident is critical before filing a lawsuit: drone/photo dates, implementation sketches, local administrative records, neighbor complaints, and municipal reports form the backbone of the chain of evidence

9. Legal Nature and Parties in Assignment Registration Cases

Registration by assignment creates a new legal situation; the same effect . In practice, there are two ways to proceed:

Assignment registration as an independent lawsuit ,
the defense/counterclaim .

In terms of litigation, the rule is that the claim should be directed at the person who owned the property at the time of construction or to the person to whom the property was subsequently transferred. Debts and liabilities related to the encroachment may be transferred to the new owner, depending on the property . From the perspective of judicial economy, a phased claim structure (demolition; if that is not possible, registration by transfer; alternative easement; fair price; compensation for unlawful use) allows the court to choose the fairest solution according to the specific case

10. Gathering Evidence: Asking the Right Questions to the Right Expert

Construction violation cases are technical matters. The evidence set early , and clear questions should be posed to the expert witness.

Maps/Cadastre: Coordinate, boundary and application records; reference plans.
Construction Documents: Zoning status certificate, building permit and its attachments, project, construction suspension reports.
Surveyor-Expert: Construction engineer (statics-architectural effects), surveying engineer (boundaries-geometry), real estate appraiser (value and depreciation).
Subdivision Technical Report: Possibility of subdivision/consolidation and alternatives within the framework of Law No. 3194.
Learning-Objection Documents: Warnings, correspondence, photographs, municipal applications.
Compensation for Unlawful Use: Determination of the benefit the neighbor has been deprived of up to the date of the decision.

Key questions to ask the expert:

What is the exact square meter and coordinate determination of the flood area ?
Project and structural impacts in case of demolition; cost and public safety aspects.
In case of collapse, eligible compensation items are: part value + depreciation in value of the remaining part + mandatory technical expenses.
for the subdivision and its market impact.
the two scenarios(destruction/collapse).

11. The Application Formula for "Fair Price"

The fair price in most files consists of three layers:

A-Compensation: of the flooded area as of the date of the lawsuit (and any additional value related to the structure, if applicable).
B-Compensation: Decrease in the market value of the remaining parcel (shape, access, use, subdivision).
C-Cost: Mandatory technical measures and the resulting permanent costs.

Total cost = A + B + C.of this total the demolition cost and the values of the new situation resulting from subdivision provides a rational basis for the judge's discretion. Depositing and clearly stating the terms of offsetting/payment in the judgment simplifies the execution and registration process.

12. Compensation for Unlawful Use and Usage Fee

Until a decision is made to allow encroachment, it is assumed that the encroachment partially benefits the neighboring owner from their property. Compensation for unlawful use or usage fees for this period is calculated separately from the appropriate price and on a periodic basis. The principle of compensation for wrongful occupation must be adhered to in calculating compensation for unlawful use; especially if the encroachment affects a commercial activity , the lost income must be demonstrated with concrete evidence (rental comparisons, turnover, intensity of use).

13. Zoning and Subdivision Aspect: Limits of Legal Consequences

Every solution for land consolidation must be compatible with zoning regulations . If subdivision/consolidation is not possible, the court may prefer a solution based on easements ; because legally, the resulting parcel cannot permanently establish a situation that is contrary to the permit or illegal . Therefore, it is essential to bring administrative regulations and civil law solutions together, to conduct document checks , and to correspond with municipal and zoning departments .

Strategy 14: Hierarchical Demand Management and Petition Architecture

Gradual demandis the backbone of flood control building files. Example scenario:

First step: to prevent encroachment and demolition (protection of property).
Second step (alternative): If the conditions are met , registration by assignment (Turkish Civil Code Article 724) – transfer of a sufficient portion.
Alternative: of an easement (Turkish Civil Code Article 725) – especially in cases involving roofs/eaves.
Determining the appropriate price and storage conditions, linking payment to the pre-decision agreement.
Compensation for unauthorized use/usage, periodic claims up to the date of the decision.
Court costs, attorney fees, court fees, and expenses.

This architecture offers the court a spectrum of solutions ; in practice, it eliminates the "all or nothing" dilemma.

15. Common Mistakes and Suggested Solutions

Reducing the price solely to the price per square meter: If the decrease in value of the remaining plot and the costs of technical measures are not taken into account, the price will be insufficient.
Late evidence gathering: If boundary data is still unclear when the discovery and expert assessment stages are reached, technical reports will be contradictory. The chain of evidence at the beginning of the case .
Overlook the zoning aspect: If a "transfer of ownership" ruling is made without examining the feasibility of subdivision and the effect of the permit, unenforceable consequences in execution.
Automatic assumption of good faith: The good faith analysis will be flawed if warnings, cautions, site stoppage attempts, and visibility facts are not documented in the file
Ambiguity in the judgment clause: Failure to itemize the price , and the lack of clear definition of the deposit and registration relationship, leads to friction in enforcement and registration.

Conclusion: Establishing a Fair Balance

In cases involving structures prone to flooding, the aim is to protect property rights while avoiding the waste of economic value . This balance rests on three pillars:

Good faith: Considerate behavior and early warning mechanisms.
The comparison of value superiority and excessive harm: balancing the waste of destruction with the cost of endurance.
Accurate cost calculation: Part + depreciation + technical costs and warehouse/registration relationship.

the right evidence strategy, well-structured expert questions, and a tiered claims architecture, a solvable case . This way, both the inviolability of property and fair compensation can be reconciled within the same decision.

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