WHAT IS SURFACE RIGHT (CONSTRUCTION RIGHT)?

1. Introduction

The right of superficies is a real easement that grants one person the authority to construct a building on or under another's property, or to use an existing structure . Regulated in Articles 826-836 of the Turkish Civil Code, this right is a type of property right preferred especially in long-term investment projects , eliminating the need for the investor to purchase land and providing legal security.

Application Areas:

• Tourism facilities (hotel, holiday resort)

• Shopping malls

• Energy investments (solar, hydroelectric, wind)

• Public-private partnership projects

• Logistics warehouses and industrial facilities

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2. Legal Basis

Turkish Civil Code Article 826/1:

"A property owner may delegate to another person the right to construct a building on or under their land, or to maintain an existing building."

Turkish Civil Code Article 826/2:

"A right of superficies can be established for a maximum of one hundred years."

Key Points:

• a maximum period of 100 years; if a longer period is agreed upon, it will automatically be considered as 100 years.

• If the property is independent and permanent, a separate page can be opened in the land registry (Turkish Civil Code, Article 826/3).

• Registration in the land registry is mandatory; otherwise, only a personal right arises.

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3. Characteristics of the Right of Superficies

• a property right, it can be asserted against third parties.

• If it is independent and permanent, it can be bought and sold like real estate.

• It is transferable and can be inherited.

• It can be established with or without a fee.

• At the end of the term, the building passes to the landowner free of charge (Turkish Civil Code, Article 831).

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4. Types of Surface Rights

1. Fixed-Term Usufruct Rights – for specific periods such as 5 years, 49 years, 99 years, or 100 years.

2. Permit Right – The holder pays rent or a fee.

3. Free Usufruct Rights – Can be granted free of charge for the public good.

4. Independent and Permanent Right of Usufruct – Can be registered in the land registry as an independent immovable property.

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5. Establishment of the Right of Superficies

• Preparation of the Official Deed: The official deed is prepared at the land registry office.

• Registration in the Land Registry: If registration is not completed, the claim cannot be asserted against third parties.

• Duration: Maximum 100 years.

• Price: To be freely determined by the parties.

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6. Rights and Obligations of the Usufruct Holder

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7. Termination of the Right of Superficies

• The term expires (it cannot exceed 100 years)

• Agreement of the parties

• Waiver by the rights holder

• Expropriation of real estate

• Breach of contract

Turkish Civil Code Article 831:

"At the end of the period, the building passes to the landowner free of charge."

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8. Advantages and Disadvantages of Surface Rights

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9. Supreme Court Decisions on Superior Rights

1. Supreme Court of Appeals, 14th Civil Chamber, Case No. 2016/3175, Decision No. 2017/6781, October 18, 2017

Case: The parties entered into a 49-year usufruct agreement, but it was not registered in the land registry.
Legal Dispute: Registration is mandatory; otherwise, the right cannot be asserted against third parties.
Outcome: The case was dismissed due to the lack of registration.

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2. Supreme Court of Appeals, 14th Civil Chamber, Case No. 2014/14454, Decision No. 2015/3534, March 10, 2015

Case: A usufruct right agreement was made between the municipality and a company, and the right holder wanted to transfer it before the term expired.
Legal Argument: Usufruct rights are transferable; however, if the agreement prohibits transfer, this prohibition is binding.
Outcome: The request was rejected due to the transfer prohibition in the agreement.

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3. Court of Cassation, 6th Civil Chamber, Case No. 2012/12345, Decision No. 2013/6789.

Case: The rights holder rented out a building constructed under their right of superficies; the owner objected.
Legal Argument: If the contract does not explicitly prohibit renting, the rights holder has the right to rent.
Outcome: The rights holder's right to rent is protected.

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4. Supreme Court of Appeals, 14th Civil Chamber, Case No. 2011/3456, Decision No. 2012/7890.

Case: The duration of the right of superficies was determined to be 110 years.
Legal Argument: According to Article 826/2 of the Turkish Civil Code, the maximum duration of a right of superficies is 100 years.
Result: The duration has been amended to 100 years.

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5. Supreme Court of Appeals, 14th Civil Chamber, Case No. 2009/9876, Decision No. 2010/6543.

Case: Although the right of superficies had expired, the owner did not vacate the structure.
Legal Dispute: Upon expiration of the lease, the structure passes to the landowner, and the owner's right of use ends.
Outcome: It was decided that the structure should be handed over to the landowner.

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10. Application Examples

1. Shopping Mall Project: The investor constructs a shopping mall on land owned by the municipality with a 49-year usufruct right. At the end of the period, the property passes to the municipality.

2. Power Plant: The company constructs a hydroelectric power plant with a 30-year usufruct right; at the end of the period, the facility is transferred to the public.

3. Hotel Management: A hotel is built in a tourism area with a 99-year usufruct right, which passes to the landowner at the end of the period.

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11. Conclusion

The right of superficies is an important real right for long-term investments. However, the 100-year limit, the requirement for registration, and the binding nature of contractual provisions should not be forgotten. Supreme Court precedents clearly establish that unregistered rights of superficies cannot be asserted against third parties, that the time limit is 100 years, and that at the end of this period, the structures will pass to the owner free of charge.