What is the Right of Passage?
The right of passage is when a neighboring property owner, who cannot access the main road from their property, requests the neighboring property owner to grant them a right of passage in exchange for compensation.
The right of passage is regulated in the Civil Code under the following two articles:
a. Mandatory Right of Passage
Article 747 – The owner who does not have sufficient passage to the main road from their property may request a right of passage from their neighbors in exchange for full compensation.
This right is first exercised against the neighbor whose property is most suitable based on the previous ownership and road conditions, and then against the one who will suffer the least damage.
The mandatory passage is determined by considering the interests of both parties.
b. Other Rights of Passage
Article 748 – The owner of the immovable may temporarily enter the neighboring immovable for the purpose of operating or improving the immovable or constructing on it, as well as for purposes such as field roads, livestock watering roads, winter passages, log sliding roads, and similar other passages. These rights are subject to special legal provisions.
If there are no special legal provisions, local customs apply.
Rights of passage originating directly from the law arise without being registered in the land registry. However, those with a permanent nature are indicated in the declaration column.
As seen from the legal articles, the right of passage may be established in mandatory and other forms subject to special provisions.
MANDATORY RIGHT OF PASSAGE
The right of passage does not arise directly from the law. If the conditions required by the law are met, the neighbor in need of a passage has the right to request the establishment of a right of passage.
After the property owner requests the right of passage, either the neighbor accepts the request and directly establishes an easement agreement, or the neighbor is obligated to establish an easement. In both cases, if a dispute arises, the property owner requesting the easement has the right to apply to the court to request the establishment of the easement.
CONDITIONS FOR ESTABLISHING THE RIGHT OF PASSAGE
- The person benefiting from the right of passage must be the owner of the immovable property.
- The establishment of the right of passage must be mandatory. If the requestor demands the right of passage for arbitrary or purely material purposes, it is possible for the court not to establish the easement.
- There must be no alternative routes to reach the road.
- If an existing road, according to objective criteria, does not meet the economic needs of the immovable property or if there is a change over time in the way the immovable property is used, the existence of a relative need for passage can be discussed (Surlu, M.H./Öztürk, G.: Geçit Hakkı: Öğreti ve Uygulama, Ankara, 2003, p. 251.).
EQUALIZATION OF SACRIFICE
The court does not establish an easement solely according to the wishes of the requesting party. The interests and rights of both parties must be equally restricted or granted. It is unacceptable for the establishment or non-establishment of an easement for one party to be more favorable than for the other. The establishment of the easement should not only concern the presence or absence of the easement but also how the easement will be established in accordance with the principle of equalizing sacrifices.
The case relates to the request for the establishment of a right of passage under Article 747 of the Turkish Civil Code No. 4721. According to the principle of equalizing sacrifice applied in right of passage cases, a passage should be established from the property with a larger area, rather than from the property with a smaller area. Additionally, in order to preserve the economic integrity of use, a passage should be established without dividing the parcels on which the passage is to be granted. (T.C. COURT OF CASSATION 14th CIVIL CHAMBER E. 2021/1658 K. 2021/3247 T. 17.5.2021)
HOW IS THE RIGHT OF WAY GRANTED?
In the case of requesting a right of way through a lawsuit, the necessity of the need and the determination of the right of way in a way that causes the least damage to the property must be established. During the trial, the court must determine whether the property genuinely needs a road, whether the road need is directed toward the most appropriate neighboring property according to the previous ownership and road situation, and against the one who will suffer the least damage. Additionally, a full fee for the right of way must be determined. Determining a full fee is derived from the law, and this fee must be decided upon when establishing the easement.
The Court of Cassation General Assembly of Civil Chambers, dated 22.02.2012, with file number 2011/14-767 E., 2012/97 K.
The amount to be paid to the liable property owner due to the established easement should also be determined through objective criteria, by experts appointed according to the nature of the property.
Which types of properties can request an easement?
The property for which an easement is requested must be subject to private ownership and registered in the land registry.
Properties that are not registered in the land registry, properties with independent and continuous rights recorded on separate pages in the land registry, and independent units subject to condominium law cannot have an easement for a mandatory passage established. Easements can be established for properties that do not have these conditions.
In the decision of the Supreme Court of Appeals General Assembly on Civil Law dated 11.02.1959, decision number 1958/14 E. 1959/13 K., it is stated:
“Non-registered properties must first be registered in the land registry, and then a request for a mandatory easement can be made. Likewise, it is not possible to establish such a right for properties not registered in the land registry.”
Termination of the Easement Right
As previously mentioned, the mandatory easement right arises from an essential need. In cases where there is no alternative to this need, if the need ceases to exist, the easement right can be terminated upon request.
- Generally Article 783 – The easement right terminates with the cancellation of the registration or the destruction of the dominant or benefiting immovable property.
- Ownership of both immovables by the same person Article 784 – If the same person owns both the dominant and benefiting immovables, they can request the termination of the easement right. Unless terminated, the easement continues to exist as a real right
- Court decision Article 785 – If there is no benefit remaining from the easement right established for the immovable property, the owner of the servient immovable may request its termination.
- An easement right that provides very little benefit relative to its burden can be partially or fully terminated in exchange for compensation.
The Turkish Civil Code provisions mentioned above outline the circumstances under which easement rights established in favor of immovable properties can be terminated.
LEGAL PROVISIONS ARISING FROM THE EASEMENT RIGHT
Article 786 – The owner of the easement right may take the necessary measures to protect and use their right; however, they must use the right in a manner that causes the least harm to the owner of the burdened immovable property.
The owner of the burdened immovable property cannot engage in actions that would prevent or make it more difficult to use the easement right.
The law aims to ensure fair and balanced use between the owner of the easement right and the grantor. Therefore, it intends to maintain balance by requiring the right holder to act carefully while using their right, and the owner of the immovable property to refrain from actions that would prevent the use of the easement right.
Article 788 – Changes in the needs of the benefiting immovable property cannot increase the burden arising from the easement on the burdened immovable property.
Article 790 – The maintenance of the necessary facilities for the use of the easement right belongs to the owner of the benefiting immovable property. If the facilities are also beneficial to the owner of the burdened immovable property, both owners should contribute to the maintenance costs in proportion to their benefits.
The necessary maintenance and compulsory expenses for the use of the easement should be borne solely by the right holder if they benefit only the holder. If the expenses benefit the immovable property owner as well, they should be covered in proportion to the benefits.
Court of Cassation Rulings on Easement Rights
- Civil Chamber 2017/3392, Decision 2021/1528
Therefore, the court should have conducted a re-examination with expert witnesses on-site, assessed the property registered as parcel 79 in block 152 belonging to the plaintiff, and if it was determined that there was a need for a passage, alternative routes should have been identified for establishing a right of passage in favor of the plaintiff. After determining the most suitable route, the court should have decided to establish the right of passage over that route. However, due to incorrect evaluation and insufficient examination, the judgment was made as written, which was deemed incorrect. Therefore, it was necessary to decide to overturn the judgment.
CONCLUSION: For the reasons explained above, the plaintiff’s attorney’s appeal objections are accepted, and the judgment is OVERTHROWN.
- CIVIL CHAMBER 2017/38 CASE, 2020/7344 DECISION
In accordance with the relevant letter from the Land Registry Directorate, upon review of the file numbered 2005/9 Main, 2005/150 Decision of the Finike Civil Court of First Instance, it was determined that while some of the land registry owners were listed as parties in the file, their names were incorrectly written in the reasoned decision title, and some of them were deceased, with their heirs being included in the case. However, it was also found that …, who was named in the aforementioned letter from the Land Registry Directorate, although a shareholder in the immovable property numbered 1505 since 2003, was not included as a party in the case, the proceedings were completed in their absence, and the decision was made accordingly. The decision was finalized without being notified to these individuals, and it was understood that the court decision, which was finalized without the proper party establishment, could not be enforced.
It is clear that a finalized court decision that could not be registered in the land registry does not have any effect on bona fide third parties acting in accordance with the principle of trust in the land registry. Due to the sale of a share by the owner of parcel 1505 to the defendant … and during the proceedings, the sale of the defendant’s share to …, the ownership of the immovable property numbered 1505, which had a right of way established against it, changed for some of its owners. As a result, although the reasons and subject matter of the case in the Finike Civil Court of First Instance’s 2005/9 Main, 2005/150 Decision are the same, it was understood that the parties were different. The decision of the Finike Civil Court of First Instance numbered 2005/9 Main, 2005/150 Decision cannot form a material final judgment regarding the current case. Therefore, instead of examining the merits of the case and making a decision, the written judgment of rejecting the case, made with an erroneous assessment, was deemed incorrect, and the decision must be overturned for this reason.
CONCLUSION: For the reasons explained above, the appeal objections of the plaintiff’s attorney are accepted, and the decision is OVERTURNED.
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