What is a Building Suspension Report/Record?
According to Article 32 of the Law No. 3194 on Zoning, if it is determined by the relevant authority that construction has begun without obtaining a permit, or that a structure is being built in violation of the permit and its annexes or without a permit for buildings that can be constructed without a permit, the building will be sealed, and construction will be immediately halted. The document drawn up at this time is called the building suspension report/record. The definition of a building suspension report is outlined in the Zoning Regulations for Planned Areas: “If it is determined that construction has begun without a permit or that construction has been carried out in violation of the permit and its annexes, a certified document prepared by authorized technical personnel of the relevant administration will be issued, showing the violations with photos, sketches, and descriptions, indicating that the construction activity cannot continue.”
Article 32 of Law No. 3194 – According to the provisions of this Law, if it is determined by the relevant authority that construction has started without a permit, or that a building has been constructed in violation of the permit and its annexes, or in violation of the applicable projects and regulations, the municipality or governorate will inspect the current construction situation upon notification or detection of the violation. The building will be sealed and construction will be immediately stopped. Information about the building’s violation of zoning regulations will be reported in writing by the relevant authority to the land registry office within seven days to be recorded in the “declarations” section of the land registry. The record will not be removed from the declarations section without prior notification to the land registry office by the relevant authority that the violation has been rectified.
Mandatory Elements
The mandatory elements that should be included in the building suspension report/minutes are as follows:
- The violations should be clearly and in detail specified along with their measurements.
- The construction without a permit or in violation of the permit should be sealed and halted.
- The building suspension report should be posted at the construction site to notify the property owner.
Sealing
Sealing of structures that are in violation of the permit and its annexes is an important step to stop the construction and constitutes a prerequisite for the demolition decision. Therefore, the sealing process, which is established together with the building suspension report, is a definitive and enforceable action that is intertwined with the suspension report, which may be subject to annulment. Sealing can only be applied to parts that violate the permit and its annexes, and identifying which parts are in violation is crucial. Although the sealing process typically covers the entire structure, it can also be applied specifically to the violating sections of independent units.
[1] Eroğlu Durkal, Müzeyyen. “İÇTİHATLAR IŞIĞINDA RUHSAT VE EKLERİNE AYKIRILIK DURUMUNDA İMAR YAPTIRIMLARI”. Erciyes Üniversitesi Hukuk Fakültesi Dergisi 19, sy. 1 (Nisan 2024): 255.
Notification
According to Article 32/2 of Law No. 3194: “The suspension is considered to be notified to the property owner when the building cessation report is posted at the construction site. One copy of this notification is left with the local authority (mukhtar), and another copy is sent to the Provincial Directorate of Environment and Urbanization.”
Measurement Sketch
When preparing the building cessation report, the administrative authorities must clearly, specifically, and in detail indicate the dimensions, type, and legally problematic parts of the illegal structure. This process must be carried out by experts such as technicians, engineers, or officers responsible for planning and construction. Building cessation reports that do not meet these requirements are considered invalid. The measurement sketch can be prepared as an appendix to the building cessation report, but it must be dated and signed the same as the report itself.
Area Affected by Zoning Violation
According to Article 42/2-c of Law No. 3194: “(…) In the calculation of areas subject to fines, the area affected by the violation is taken into account.”
For the imposition of zoning fines, it is crucial that the violations of the permit and its annexes are clearly stated. The violative area must be shown on a sketch or diagram, and its dimensions should be indicated in square meters. Additionally, when calculating the fine, the area affected by the violation is considered, and if there are multiple violations on a parcel, separate fines are imposed for each structure. Furthermore, the impact of the zoning violation on other parts of the building, whether there is any additional area gained, and whether the structure’s stability is affected must be determined and detailed in the report.
Elimination of Zoning Violations
According to Article 32/3 of Law No. 3194, “Within a maximum of one month from the notification, the building owner shall request the removal of the seal from the municipality or the governorship by either bringing the structure into compliance with the permit or by obtaining a permit.”
Also, according to Article 32/4 of the same Law, “In a building with a zoning violation, if it is determined during an inspection that the violation has been rectified or a permit has been obtained and the building complies with the permit, the seal will be removed by the municipality or the governorship, and construction will be allowed to continue.”
However, according to the last paragraph of the relevant article, “The permit for buildings that cannot be legalized by the administration or where violations cannot be corrected will be canceled without waiting for the one-month period specified in paragraph three, and the provisions of paragraph five regarding non-compliant constructions will apply.”
Demolition Decision
Article 32/5 of Law No. 3194 stipulates that a demolition decision will be made if the violation is not rectified.
“Otherwise, the permit is canceled, and the building constructed in violation of the permit or without a permit will be demolished by the municipality or the governorship, following a decision by the municipal council or the provincial administrative board, with the cost being collected from the property owner. If, within one month from the date the construction halt report is issued, the property owner does not rectify the violation or obtain a permit, and this is determined by the relevant authority, the construction will be subject to a demolition decision within two months. Similarly, if a demolition decision has been made but the structure is not demolished by the relevant authority within six months, the demolition costs can be covered by the Ministry from the revolving fund revenues. The demolition costs will be collected from the relevant authority with a 100% surcharge. If the collection cannot be made, it will be deducted from the share transferred to the relevant authority under Law No. 5779. The collected amounts will be recorded as income in the Ministry’s revolving fund account.”
Council of State Rulings
“… In the building suspension report to be prepared regarding the identification of structures constructed without a permit or in violation of the permit and its annexes, the non-compliance should be indicated with measurements in a concrete and detailed manner, determining the current condition of the building. The construction without a permit or in violation of the permit should be sealed and stopped, and the suspension report should be posted at the construction site to notify the owner. A copy of the notification should be left with the local headman (muhtar). If a period of one month is granted to the building owner to obtain a permit or to make the building compliant with the permit, then this period should be respected. If no period is given, it is clear that, at the end of one month from the date of determination, a demolition decision may be made regarding buildings without permits or those that are not made compliant with the permit, in accordance with Article 32 of Law No. 3194. According to this regulation, in order to enforce the penalties prescribed by law for buildings without a permit or constructed in violation of the permit and its annexes, the disputed construction must be identified clearly and without doubt by relevant technical personnel, and documented in a report prepared in accordance with the procedure. For demolition decisions regarding buildings constructed in violation of the permit and its annexes, the building suspension report must be prepared according to the procedure by the administration, with clear and detailed indications of the violations of the permit.”
(Council of State 6th Chamber, E:2019/9588, K: 2020/9900, 21.10.2020)
“Although it was determined by the building suspension report prepared by the defendant’s administrative personnel that construction was carried out in violation of the building permit and its annexes for the disputed property, the building suspension report did not specify the violations in a concrete and detailed manner; since there were no explanations or sketches in the building suspension report or its annexes regarding this matter, the report does not contain the elements required by Article 32 of Law No. 3194 concerning the ‘Building Suspension Report’…”
(Council of State 14th Chamber, E:2017/4461, K:2018/8139, 26.12.2018)
In the decision of the Istanbul 2nd Administrative Court, it was stated that the construction in violation of the permit was determined and sealed with a report dated June 11, 1999, and that during an inspection on August 13, 1999, it was found that construction had continued and was sealed again. It was further stated that by the council decision in question, the demolition of parts of the buildings that were in violation of the project and permit was decided, and after an on-site inspection and expert examination, it was reported that the density exceeded the permitted level, and as a result, it was concluded that blocks 4 and 5 were not constructed in accordance with the permit and approved project. It was noted that Article 32 of Law No. 3194 refers to the “building suspension report” as a report that “determines” the current state of construction. Additionally, there is no provision in the law that states the building suspension report must be “arranged in such a way as to specify the violations concretely and in detail.” In the case at hand, the Administrative Court judge, using the power of ex officio investigation, conducted an on-site inspection to determine what the violations were, and the expert report specifically stated how much the construction floor area ratio was exceeded. Therefore, the court decided to dismiss the case, stating that there was no legal violation in the process of ordering the demolition of the parts of the building that violated the project and permit.
Article 32 of Law No. 3194 states: “Except for buildings that can be constructed without a permit according to this law; if it is determined by the relevant authority that construction has started without a permit or that construction is in violation of the permit and its annexes, and the technical responsibility for detection and notification is carried out, or if this situation is noticed in any other way, the municipality or governorate shall determine the construction status at that time. The building is sealed and construction is immediately stopped. The stop is considered to be notified to the owner when the building suspension report is posted at the site. A copy of this notification is also left with the muhtar. Within a maximum of one month from this date, the building owner may request the removal of the seal from the municipality or governorate by bringing the building into compliance with the permit or by obtaining a permit. If the violations have been resolved or a permit has been obtained and the building complies with the permit after the inspection, the seal is removed by the municipality or governorate, and construction is allowed to continue. Otherwise, the permit is canceled, and the building constructed in violation of the permit or without a permit is demolished by the municipality or governorate after a decision of the municipal council or the provincial administrative board, and the cost is recovered from the owner.”
As also stated in the decision of the Council of State’s Sixth Chamber, in order for a decision to be made to demolish buildings constructed in violation of the permit and its annexes in accordance with Article 32 of Law No. 3194, the building suspension report must detail the violations in a concrete and detailed manner. Without clearly and explicitly specifying the violations and without determining the nature of the violation, a demolition decision cannot be made. In the case at hand, no clear explanation was provided by the defendant authority on how the construction floor area ratio was exceeded, the issued building permit was not canceled, and the violations of the permit were not clearly identified before the demolition decision was made, which constitutes a failure to comply with the law.”
(Council of State Administrative Litigation Division, 2004/2530 E., 2005/1121 K., 05.05.2005)
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