- M. Ragıp ÇALIK
- Aug 14, 2025
- 6 min read
CONQUEST WITHOUT EXPROPRIATION
1. INTRODUCTION
Non-expropriatory seizure is the de facto seizure of privately owned real estate by the administration without proper expropriation. This constitutes a violation of property rights and violates Article 46 of the Constitution and Expropriation Law No. 2942. In cases of non-expropriatory seizure, various legal remedies exist to protect the rights of property owners.
Types of Non-Expropriatory Confiscation
De facto Confiscation: This is the administration's physical intervention in privately owned property without any expropriation process and without the owner's consent. This intervention may involve full or partial use of the property, construction of structures on it, or allocation of the property for public services such as roads, parks, or schools.
Legal Encroachment: This is the administration's restriction of the property owner's rights through legal procedures, without actually intervening in the property. This typically occurs through the designation of the property for public use in zoning plans (e.g., designating it as a green space, school, or road) or through annotations placed on the title deed. As a result of legal encroachment, the owner cannot use, sell, or dispose of the property. Therefore, the owner can pursue their rights without having to wait for the administration to intervene.
2. CONDITIONS OF THE NON-EXPROPRIATORY INTERCESSION CASE
1. The Administration Must Have Taken Control
Encroachment can be de facto (physical intervention on the property) or legal (zoning plan change, allocation, etc.). Encroachment must be carried out by the administration. Encroachments by private individuals are not included in this scope.
2. Expropriation must not have been carried out.
The administration must have taken the property into use without expropriation or agreement with the owner. If expropriation has been carried out, a valuation and registration lawsuit will be filed; a seizure lawsuit cannot be filed without expropriation.
3. Must be the Owner or Rightful Owner
The person filing the lawsuit must be the registered owner of the property or have real rights over it. Lawsuits can also be filed for untitled properties under certain circumstances.
4. Statute of Limitations
There is no statute of limitations for compensation and compensation claims based on non-expropriatory seizure. However, there is a 5-year statute of limitations for claims for unjust occupation.
5. There Must Be Actual or Legal Restrictions on the Property
The administration must have actually seized the real estate, constructed a structure, or allocated it for road or public service. In case of legal seizure, the property must be designated as a public area in the zoning plan and the owner must be unable to dispose of it.
3. TYPES OF LAWSUITS THAT MAY BE FILED AS A RESULT OF NON-EXPROPRIATORY INTERVENTION
1. Lawsuits That Can Be Filed as a Result of Actual Confiscation
Prevention of Intervention Case
It is requested that the administration's intervention on the real estate be stopped.
It can be opened if the real estate has not yet been allocated to public service or if the actual seizure has just taken place.
The Civil Court of First Instance where the real estate is located has jurisdiction.
Price Determination and Compensation Case
Due to the administration's actual seizure of the real estate, the price of the real estate is requested to be paid to the owner and registered in the name of the administration.
The value of the real estate is determined by expert reports.
According to the Supreme Court precedents, the market value on the date of the case is taken as basis.
The Civil Court of First Instance where the real estate is located has jurisdiction.
Ecrimisil (Unfair Occupation Compensation) Case
Retroactive rental fee is requested due to the administration's unfair use of the real estate.
There is a statute of limitations of 5 years.
The Civil Court of First Instance where the real estate is located has jurisdiction.
2. Lawsuits That May Be Filed as a Result of Legal Interception
Cancellation Case (Zoning Plan)
If the property right is violated due to the real estate being designated as a public area (green area, road, school, etc.) in the zoning plan,
If there is a violation of the Zoning Law No. 3194 and the provisions of the Constitution regarding property rights,
A lawsuit for the cancellation of the zoning plan can be filed in the administrative court of the place where the real estate is located.
The period for filing a lawsuit is 60 days from the date of the administrative action.
Full Remedy Suit (Compensation Suit)
If the property owner's right to ownership has been restricted due to legal seizure and the property has become unusable,
The owner may demand compensation for the price of the real estate by filing a full jurisdiction lawsuit in the administrative court where the real estate is located.
The period for filing a lawsuit is 1 year from the date of learning about the legal intervention and, in any case, 5 years.
3. Applications to the Constitutional Court and the ECHR
Individual Application to the Constitutional Court
Persons whose property rights have been violated due to legal seizure may apply individually to the Constitutional Court after domestic legal remedies have been exhausted.
Application to the European Court of Human Rights (ECHR)
When domestic remedies in Türkiye have been exhausted, an application can be made to the ECtHR, based on the protocols to the European Convention on Human Rights concerning property rights. Compensation can be sought on grounds such as violation of property rights and denial of the right to a fair trial.
4. MATTERS TO BE CONSIDERED IN THE NON-EXPROPRIATORY INTERCEPTION CASE
1. Persons with the Right to File a Lawsuit
Real Estate Owner : Real estate owners whose names are listed in the land registry may file a lawsuit against the administration's unjust encroachment.
Joint Ownership : If the real estate is owned by more than one person as a joint ownership, each shareholder can file a lawsuit individually or jointly.
Joint Owners of Property : In real estate acquired through inheritance, the heirs can act together and file a lawsuit.
Persons Using Unregistered Real Estate Through Possession : If a person has been using the real estate for many years and continues to do so as a lawful possession, the right to file a lawsuit may arise.
Persons in whose favor real rights have been established : Owners of real rights such as right of superficies and usufruct rights may also file a lawsuit in case their rights on the real estate are violated.
Who Cannot File a Lawsuit?
Those who are merely tenants cannot sue directly because they are not the owners. However, they can encourage the owner to file a lawsuit.
Those who temporarily use the real estate cannot file a lawsuit because they do not have ownership rights.
2. Condition of Compromise
In non-expropriatory seizure cases, conciliation is not a prerequisite for filing a lawsuit. In other words, property owners are not required to seek conciliation with the administration before filing a lawsuit.
However, pursuant to Article 8 of Expropriation Law No. 2942 , the administration must first attempt to reach an agreement with the property owners during the expropriation process. This applies to expropriatory transactions, but this requirement does not apply to non-expropriatory seizures .
3. Can the Expropriation Fee Decision be Enforced Before It Becomes Final?
After the conclusion of the non-expropriatory seizure case, you must first apply to the administration. The administration may make a payment to you based on the payment request submitted to the administration. However, if the result is negative or the administration does not respond, you can pursue your rights through enforcement within 30 days of the application date. This does not require the court decision to become final.
Another important point to note is that, although you may be seeking your rights through enforcement, an amendment in the Official Gazette dated November 26, 2022, stipulates that the administration will no longer be required to provide collateral if it requests a stay of execution pursuant to Article 36 of the Enforcement and Bankruptcy Law No. 2004, dated June 9, 1932. Therefore, while enforcement proceedings that can be initiated without waiting for a final decision speed up the process, administrations that have the right to request a stay of execution without providing collateral unfortunately slow down the process considerably.
5. CONCLUSION
The expropriation process requires extreme caution to prevent loss of rights for both the administration and the owner. While it may seem like a straightforward process from the owner's perspective, where property rights are violated and the administration expects compensation, for the administration, it represents a significant expense involving hundreds of properties and owners. Therefore, every step must be meticulously monitored, and legal assistance is essential to avoid any potential harm.
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