Compensation Lawsuit Due to Expropriation Without Compensation

November 13, 2023

What is a Lawsuit for Expropriation Without Compensation?


When the administration interferes with a person’s right to property without expropriation, claiming that it is for the public interest, and physically or legally seizes real estate, this is referred to as “expropriation without compensation.” In such cases, a lawsuit for expropriation without compensation can be filed. The administration can carry out expropriation without compensation in two different ways:

  1. Physical Seizure
  2. Legal Seizure

Physical Seizure

This refers to the act of the administration partially or fully taking possession of a property that is privately owned. The administration justifies this seizure by citing a public need. For example, a structure may be built on this property that is subject to private ownership. In such a case, since the administration has physically taken possession, the owner is prevented from using or benefiting from the property (exercising the rights derived from ownership).

Legal Seizure

  1. In the case of legal seizure, although possession and ownership remain with the property owner, the administration restricts the owner’s ability to exercise their rights, effectively seizing the property. In this situation, despite the fact that the property is privately owned, the owner cannot freely exercise their ownership rights over the property. For example, the administration may restrict the owner’s property rights due to a zoning plan. This is when legal seizure occurs.
  2. “A property designated for public use in the zoning plan, which has not been included in the zoning program for many years, and where the administration has been passive and silent, leading to the violation of the owner’s property rights, gives the owner the right to pursue legal remedies arising from unlawful seizure. In such a case, actual physical possession of the property is no longer a necessary condition for the occurrence of unlawful seizure.” (Supreme Court of Appeals, Civil General Assembly, 09.06.2010, E. 2010/5-662, K. 2010/651)

Conditions of Unlawful Seizure (Without Expropriation)

  1. The immovable property that is seized without expropriation must belong to a private legal or natural person. Immovable properties owned by public legal entities cannot be expropriated.
  2. The person who seizes the property must have the authority to carry out expropriation.
  3. The purpose of the seizure must serve public interest.
  4. It is necessary for the seizure to eliminate the owner’s rights to use, benefit from, and dispose of the property, and this situation must be permanent.

Legal Remedies Available in the Case of Seizure Without Expropriation

  1. The expropriation-free seizure case, also known as the compensation case in practice, is essentially a type of lawsuit shaped by practice rather than legal regulation. The Court of Cassation has accepted that this case is a lawsuit for compensating the damage resulting from an unlawful act. According to the ruling, the act of the administration seizing the property without expropriation constitutes an unlawful act in terms of tort law, and it creates a liability for the administration to compensate for the damage caused to the property. However, unlike compensation lawsuits resulting from unlawful acts, in this case, the judge rules that in addition to the payment of the property’s value to the owner, the ownership of the property will be transferred to the administration and registered in the administration’s name in the land registry. In this respect, it can be said that the expropriation-free seizure case is of a hybrid nature. In the case of actual seizure, the competent court to apply to is the civil court of first instance in the place where the property is located. In the case of legal seizure, the competent court to apply to is the court located in the place where the property is located.

Lawsuit for Compensation Due to Expropriation-Free Seizure

  1. According to Article 46 of the Constitution, the administration may expropriate in certain cases, provided that it serves the public interest. However, the value of the expropriated property must be paid to the owner. The manner of these payments is explained in the relevant article: “Article 46 – (Amended: 3/10/2001-4709/18).”
  2. The state and public legal entities, in cases where the public interest requires, are authorized to expropriate all or part of the immovable properties in private ownership and to establish administrative easements on them, provided that the real compensation is paid in advance, in accordance with the principles and procedures specified by law.
  3. The expropriation fee and the final judgment on the increase in value are paid in cash and in full. However, the payment method for the compensation of lands expropriated for the implementation of agricultural reforms, large energy and irrigation projects, settlement projects, the cultivation of new forests, the protection of coastlines, and tourism purposes is determined by law. In cases where the law allows for installment payments, the installment period cannot exceed five years; in such cases, the installments are paid equally.
  4. The compensation for land that is directly cultivated by small farmers, who operate the land themselves, is always paid in full and in cash.
  5. In the case of installments outlined in the second paragraph and any expropriation fees that remain unpaid for any reason, the highest interest rate specified for public debts will apply.

In the event of damage caused by unlawful expropriation, for example, if the administration causes damage to cultivated land by building or constructing facilities, the lawsuit to compensate for the incurred damage is a compensation lawsuit. This lawsuit can be filed either alone or alongside other lawsuits such as the price lawsuit, the prevention of interference lawsuit, and the ecrimisil lawsuit. The debt in question arises from a tortious act. According to Article 49 of the Turkish Code of Obligations (TBK), “a person who causes damage to another by a wrongful and unlawful act is obliged to repair this damage.” Therefore, if unlawful expropriation occurs, the administration is responsible for compensating the damage. However, for the application of this provision, there must be a causal connection between the damage caused and the result. These lawsuits are of the nature of a performance lawsuit and can be filed as a claim for an unspecified debt or as a partial lawsuit. In the case of legal expropriation, the administration must expropriate the property it has taken within five years. If no expropriation is carried out during this period, property owners may file a compensation lawsuit in administrative court.

Who Can File a Compensation Lawsuit for Unlawful Expropriation?
Compensation lawsuits for unlawful expropriation can be filed by the owner(s) listed on the title deed or their heirs.

Reconciliation


According to the Temporary Article 6 of the Expropriation Law, the reconciliation procedure is required as a precondition for the procedures to be conducted. This provision is explicitly stated in the law:

“Expropriation transactions that have not been completed or have not been carried out at all, but that have been allocated for public services or assigned for a public need between 09/10/1956 and 04/11/1983, or land or resources on which facilities have been constructed either partially or completely or through the establishment of a servitude right, are considered to be taken into possession without the owner’s consent. In this case, the requests arising from the ownership right, including the request for compensation, valuation, and other procedures, will be made in accordance with the provisions of this article. The reconciliation procedure is a precondition for the procedures to be conducted under this article.”

Upon the invitation of the administration or the application of the owner, the estimated value of the immovable property or the servitude right imposed on it will be determined according to the procedure of the Expropriation Law. After the valuation, the reconciliation commission, formed based on the invitation of the administration or the application of the owner, will send a letter within six months from the date of invitation or application to invite the claimant to the reconciliation meetings without specifying the estimated value.

The reconciliation may be achieved through the exchange of immovable property belonging to the administration, granting limited real rights on immovable property belonging to the administration, or allowing building rights to be used in another location within the framework of zoning regulations. If none of these are possible, a cash payment can be made.

Reconciliation meetings must be concluded within six months from the date of the invitation, provided there are no legal or factual obstacles. Whether an agreement is reached or not is recorded in a report signed by the owner or their representative and the commission members. The information and documents regarding the reconciliation meetings do not constitute evidence against the parties in any future lawsuits.

If reconciliation is reached, a contract will be made that includes the type of right agreed upon, the terms and procedures for its recognition, the amount and payment conditions if a cash payment is made, and the consent for the registration or cancellation of the property. Transactions will be conducted within the framework of this contract, and the reconciliation subject properties will be registered or cancelled by the land registry office ex officio.

The agreed compensation amount can be paid in installments, extending over the following years within the budgetary constraints. During the installment payment period, legal interest and default interest will be paid in accordance with the Law on Legal Interest and Default Interest.

Statute of Limitations


The owner can file a lawsuit for the prevention of unlawful possession arising from the ownership right. The lawsuit for the prevention of possession is a real action, as it is based on the ownership right over the immovable, and since there is an ongoing violation of the ownership right, it is not subject to any statute of limitations. As for the cases of unlawful expropriation, since the owner’s constitutional rights are violated, these lawsuits are not subject to any statute of limitations or time-barred periods.

Relevant Court of Cassation Decisions


The case concerns the prevention of unlawful possession of a property, restoration to the previous state, the collection of the compensation for the unlawful possession, and the claim for ecrimisil.

The court, due to the withdrawal of the restoration request, ruled to dismiss the restoration claim, rejected the prevention of unlawful possession case, and accepted the claim for compensation for the unlawful possession and ecrimisil; the ruling was appealed by the defendant’s representative.

In the valuation of the land according to the income method, there was no error in the decision to collect the property value and ecrimisil from the defendant administration. (Court of Cassation, 5th Civil Chamber, 2013/29443 E., 2014/12840 K.)

The case concerns the collection of compensation for the unlawfully possessed property and the claim for ecrimisil.

In accordance with the decision of the Court of Appeal, the case was reviewed and a ruling was made; the decision was appealed by the parties’ representatives.

According to the information and documents in the file; following the review conducted in line with the Court of Appeal’s judgment, it was determined that there was no basis for the compensation claim related to unlawful possession as it became irrelevant; and the decision to accept the ecrimisil case was deemed correct.

Therefore, all of the defendant administration’s representative’s objections, as well as the plaintiff’s objections to the appeal outside the scope of the following paragraph, were found to be without merit. However;

It was noted that the plaintiff had multiple primary claims, namely compensation and ecrimisil due to unlawful possession, which constitutes an objective consolidation of claims. Given that the compensation claim based on unlawful possession became irrelevant and the ecrimisil claim was accepted, it was incorrect to rule the same amount of attorney’s fees without considering this.

Nonetheless, as rectifying this error does not require a retrial:

It was decided to remove the phrase (5,100.00 TL) from paragraph 5 of the reasoned judgment and replace it with (5,100.00 TL for the compensation claim due to unlawful possession; and 5,100.00 TL for the ecrimisil claim, separately).

The judgment was thus CORRECTED AND UPHELD, and since the defendant administration is exempt from court fees, no fees will be collected. The appeal fee paid by the plaintiff will be refunded upon request. The decision was made unanimously on 04.10.2022. (Court of Cassation, 5th Civil Chamber, 2022/3758 E., 2022/13287 K.)

"... In the ... District of ... Province, in the ... Neighborhood, regarding the real property with the parcel number ..., a part of the property falls within the coastline boundary line dated 16/06/1981, and another part is designated as a road in the 1/1000 scale application zoning plan dated 15/06/2004. However, since it was not expropriated in line with its intended use, the ownership rights are restricted indefinitely, and the plaintiff requests that, subject to reserving rights regarding additional claims, the property be paid an amount of 30,000.00 TL (139,950.00 TL after correction) along with its legal interest. The court accepted the claim for 96,750.00 TL, which is to be paid by the defendant Silivri Municipality along with legal interest starting from the date of filing the lawsuit (19/03/2014). The court rejected the remaining 43,200.00 TL claim with respect to the other defendant, Istanbul Metropolitan Municipality. The administrative court’s decision was appealed by the Council of State's Sixth Chamber on 04/12/2017, and the compensation claim was partially upheld and partially overturned. After the Council of State's ruling on 02/05/2019, the case was sent to our chamber to make a decision on the merits of the case. On 13/10/2020, the Council of State's Sixth Chamber ruled to overturn the decision partially, leading to the acceptance of the claim for compensation due to unlawful possession. A total of 86,000.00 TL was decided, with 30,000.00 TL to be paid from the date of filing (19/03/2014), and 56,000.00 TL starting from the date the correction petition was filed (16/10/2015), including legal interest. The payment is to be made by the responsible defendant ... Municipality. The plaintiff's request for additional compensation for the portion of the land in the road area was rejected by the Administrative Court, but following the decision of the Council of State's Sixth Chamber on 15/06/2022, this decision was overturned. Subsequently, the case was sent back to the Administrative Court, and its ruling regarding the case's jurisdiction and related procedural and legal costs and attorney’s fees is requested to be overturned on the grounds of procedural and legal irregularities."

“The decisions made by the administrative and tax courts can be reviewed and overturned through the appeals process only if one of the reasons specified in Article 49 of the Administrative Procedure Law No. 2577 is present.

The decision dated … with reference number E…, K:… issued by the Administrative Court, along with the reasoning behind it, is in accordance with the law and procedure, and there is no reason to overturn it. Therefore, the appeal request is rejected, and the appealed portion of the decision is UPHELD. The file will be sent to the aforementioned court, and in accordance with Article 54, paragraph 1 of Law No. 2577 (as applied under the provisions of the Temporary 8th Article), the decision may be corrected within 15 days from the date of notification. This decision was made unanimously on 28/03/2023.” (Council of State, 6th Chamber, 2023/1858 E., 2023/3132 K.)

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