ABSTRACT
The administration should conduct expropriation and, in exceptional cases, urgent expropriation of privately owned properties required for public services, in a manner that minimizes interference with individuals’ property rights and only when public interest is present, in accordance with the law and procedure.
I. INTRODUCTION
The primary duty of the administration is to maintain public order and provide public services to ensure public interest. To fulfill its duties, the administration needs certain movable and immovable properties. These properties, which are privately owned, can be acquired by the state and public entities with the consent of their owners. However, in some cases, owners may not be willing to relinquish their properties to the administration. In such situations, the administration can use its public power to acquire the necessary properties or easements without the owner’s consent, citing “public interest” as the reason1. This is where the administration resorts to expropriation or, in urgent cases, urgent expropriation, to transfer the necessary properties to public ownership, thereby ensuring public interest.
Expropriation is a significant restriction on the right to property. Since the right to property is a constitutional right and its restriction is exceptional, the administration that resorts to expropriation must strike a balance between the public interest it aims to achieve and the freedoms and interests of individuals2. When the administration carries out expropriation and urgent expropriation procedures, it seizes the owner’s property right; therefore, these procedures must be conducted in accordance with the law, in a manner that is procedurally correct, and with minimal interference with the owner’s rights.
This article will examine the administration’s authority to seize privately owned immovable properties based on its public power, in terms of expropriation and urgent expropriation procedures. The legal basis and elements of expropriation and urgent expropriation procedures will also be evaluated.
II. EXPROPRIATION
Expropriation is the process of seizing a privately owned immovable property without the owner’s consent and converting it into a public asset3. When the administration expropriates a privately owned immovable property, there are certain procedures that must be followed.
Expropriation has been defined in various ways in doctrine and court decisions. According to Kutlu Gürsel, expropriation is “An administrative transaction that terminates the property right of a private law person over an immovable property, based on the public power that derives its legitimacy from the public interest”4. According to the Constitutional Court, expropriation is “A process by which the State terminates private ownership without the owner’s consent, for the public interest”5.
A. Legal Basis of the Expropriation Process
1. Constitution
Article 46 of the Constitution arranges that “The State and public corporate bodies are authorized to expropriate and establish administrative easements on privately owned immovable properties, in whole or in part, in cases where the public interest requires it, provided that the actual compensation is paid in advance, and in accordance with the principles and procedures specified by law”. Accordingly, expropriation can be carried out by the state or public corporate bodies in cases where the public interest requires it, by paying the price of a privately owned immovable property in cash and in advance.
Article 35 of the Constitution regulates the right to property. The right to property is a constitutional right and everyone has this right. According to this article, the right to property can only be limited by law in cases where the public interest is present. The expropriation process eliminates the property right of the immovable property owner.
2. Expropriation Code No. 2942
Although the basis of expropriation is the Constitution, the Expropriation Law No. 294266. (“Expropriation Law”) regulates the stages of expropriation, the calculation of the price of the immovable property to be expropriated, the retrieval of the expropriated immovable property, the registration of the immovable property and easement right in the name of the administration, the transfer of immovable properties between administrations, and the methods of resolving disputes that may arise regarding expropriation.
B. Elements of the Expropriation Process
Expropriation is a mixed-natured transaction, defined in doctrine as both an administrative and executive transaction7. As an administrative transaction, the expropriation process should be evaluated in terms of the five elements of an administrative transaction.
1. Authority
Expropriation, as it involves direct interference with the right to property and leads to the termination of private property rights, can only be carried out by the state and public corporate bodies in accordance with Article 46 of the Constitution and Article 1 of the Expropriation Law. Furthermore, the administration that will carry out the expropriation can only do so for the public services it is responsible for, as stipulated in Article 3, paragraph 1 of the Expropriation Law.
The legislator has introduced an administrative control mechanism to prevent arbitrary actions by the administration in expropriation, by determining the competent authorities that will decide on the public interest and approve this decision.
2. Reason and Purpose
In the expropriation process, the reason is the provision of public services by the administration with the aim of public interest, including administrative, social, economic, cultural, scientific and similar services, as well as infrastructure services related to these activities. As with all public services, the purpose of the expropriation process is also public interest.
3. Subject
The subject of the expropriation process is the transfer of privately owned immovable properties, in whole or in part, to the ownership of the administration, thereby converting them into public property. The administration can also acquire the easement rights of immovable properties owned by private individuals through expropriation8. Therefore, the subject of the expropriation process can include not only immovable property ownership but also easement rights.
4. Form and Procedure
The procedure and stages of the expropriation process for privately owned immovable properties are regulated in the Expropriation Law.
a. Securing sufficient funds for the expropriation price
The administration must first secure sufficient funds to expropriate a privately owned immovable property. According to Article 3 of the Expropriation Law, expropriation proceedings cannot be initiated without securing sufficient funds for the immovable property. Therefore, the administration will secure sufficient funds before starting the expropriation process for a privately owned immovable property.
b. Obtaining a public interest decision
As stated in the Constitution, a privately owned immovable property can only be expropriated if there is a public interest9. After the administration has secured sufficient funds for expropriation, a public interest decision must be made for the expropriation of the immovable property. The authorities that will make the public interest decision are listed in Article 5 of the Expropriation Law.
c. Determination of the property to expropriated
After the general and objective public interest decision is made, the immovable property to be expropriated is determined. The determination of the immovable property to be expropriated is regulated in Article 7, paragraph 1 of the Expropriation Law. According to this, the administration that will carry out the expropriation prepares or has prepared a scaled plan showing the bound aries, area, and type of the immovable properties or resources to be expropriated or on which an easement right will be established. It also identifies the owners of the expropriated property, or if there is no title deed, the possessors, through documents.
d. Taking the expropriation decision
After the immovable property to be expropriated is determined, the expropriation decision is made. According to Article 7, paragraph 3 of the Expropriation Law, after the expropriation decision is made, the administration notifies the land registry office where the immovable property is registered to annotate the expropriation in the land registry.
e. Attempting to apply the purchase procedure
After the expropriation decision is made, the applicability of the purchase procedure must be tried first. Accordingly, the administration will first attempt to purchase the privately owned immovable property. Indeed, Article 8 of the Expropriation Law states that the purchase procedure should be applied as a priority.
If the administration and the owner of the immovable property agree on a price or exchange that does not exceed the estimated value of the immovable property subject to expropriation, a record of this agreement is drawn up. The administration shall, within forty-five (45) days from the date of the record, prepare the price specified in the record and, based on a written statement that the immovable property has been cleared of all encumbrances and rights, ensure that the immovable property is registered or cancelled in its own name in the land registry10.
f. Determination of the expropriation price by the court and registration of the immovable property in the name of the administration
If the immovable property cannot be acquired through the purchase procedure, the administration applies to the civil court of first instance in the location of the immovable property, together with the valuation report and other relevant information and documents. After the determination of the expropriation price, the administration requests the court to decide on the registration of the immovable property in its own name, in exchange for the payment of the expropriation price.
III. URGENT EXPROPRIATION
Urgent expropriation is the administration’s seizure of an immovable property in extraordinary situations or when there is an urgent need for the property in the public interest, with the intention of completing the expropriation procedures specified in the Expropriation Law at a later time11.
Urgent expropriation is an expedited expropriation procedure that has similarities with and differences from ordinary expropriation. The urgent expropriation process begins similarly to ordinary expropriation. The expropriation procedures up to the appraisal of the immovable property’s value in ordinary expropriation are also carried out in the urgent expropriation procedure.
In Türkiye, urgent expropriation has been used to rapidly implement projects such as hydroelectric power plants, electricity transmission and distribution activities, road construction and repair activities, urban transformation projects, largescale irrigation activities, and the construction of dams, natural gas, thermal power plants, and other similar projects12.
A. Legal Basis of Urgent Expropriation Procedure
Article 27 of the Expropriation Law regulates the urgent expropriation procedure:
“In the implementation of the National Defense Obligation Law No. 3634, in cases where the President decides on the need or urgency of national defense, or in extraordinary situations foreseen by special laws, the necessary immovable properties may be expropriated, and the procedures other than the valuation may be completed later, upon the request of the relevant administration, the court may, within seven days, determine the value of the immovable property in accordance with the principles of Article 10 and by experts selected in accordance with Article 15, and the administration may deposit this value in the bank specified in the summons and announcement to be made in accordance with Article 10, in the name of the property owner, and take possession of the immovable property.”
According to Article 27, in cases where the need for national defense arises under the National Defense Obligation Law No. 363413, or in cases where the President decides on the urgency, or in extraordinary situations foreseen by special laws, the urgent expropriation procedure may be applied exceptionally. This special provision regarding urgent expropriation, which applies in more specific situations compared to the ordinary expropriation procedure, provides the legal basis for the administration to take possession of immovable properties without delay in cases where public interest is present.
In the justification of the article, it is stated that the urgent expropriation procedure has been introduced in order to prevent serious damages that may arise from complying with the procedures for expropriation set out in the Expropriation Law in urgent and exceptional cases, considering that such compliance may give rise to certain drawbacks14.
B. Elements of Urgent Expropriation Procedure
1. Authority
According to Article 27 of the Expropriation Law, in the event of extraordinary circumstances, the President is authorized to make a decision on urgency in any matter not regulated by a special law. There is no legal basis for the transfer of this authority, either explicitly or implicitly.
In the urgent expropriation process carried out based on a special law, if the administration authorized to decide on the urgent expropriation is not explicitly specified in the special law, it should be understood that the administration that will carry out the expropriation has this authority15.
2. Reason and Subject
In terms of urgent expropriation, the reason for the urgency decision is the extraordinary situation, condition, and need that requires the administration to take possession of the immovable property subject to expropriation without delay. In the ordinary expropriation process, the reason is the administration’s need for privately owned immovable properties for the purpose of carrying out public services; whereas in urgent expropriation, it is the special and extraordinary circumstances that require this need to be met immediately, without losing time16.
For the urgency decision to be applicable, a prior expropriation decision must have been made regarding the immovable property. Without an expropriation decision, it is not possible to implement the expropriation urgently.
As with every administrative transaction, the purpose of the urgency decision is also to ensure public interest. The justification of Article 27 of the Expropriation Law explains what public interest is aimed at in the urgency decision. In this context, it is considered that in some urgent and special situations, following the procedures for expropriation may lead to various difficulties, and the aim is to prevent the public from suffering serious harm. The administration’s need for an immovable property in an urgent manner and the necessity to expropriate it without delay essentially demonstrates the existence of public interest.
3. Subject
The subject of the urgency decision is the immovable properties that are subject to expropriation and need to be taken possession of urgently17. The legal consequence of the urgency decision is different from the legal consequence of the expropriation decision. While the expropriation process transfers the ownership of privately owned immovable properties to the administration, the urgency decision grants the administration the authority to take possession of the immovable property before the court’s registration decision.
4. Form and Procedure
Although the procedures related to the urgent expropriation process are set out in Article 27 of the Expropriation Law, there is no provision regarding how the urgency decision, which is necessary for the application of this procedure, should be made.
The President is authorized to make the urgency decision. Prior to the 2017 constitutional amendment, this authority belonged to the Council of Ministers, but after the amendment, the phrase “by the Council of Ministers” in Article 27, paragraph 1 of the Expropriation Law was changed to “by the President”. Accordingly, the urgency decision can only be made with the signature of the President. The President’s decision regarding the urgent expropriation of immovable properties is published in the Official Gazette.
a. Securing sufficient funds for the expropriation price
As in the case of ordinary expropriation, the administration must first secure sufficient funds to carry out urgent expropriation of privately owned immovable properties. Article 3 of the Expropriation Law states that expropriation procedures cannot be initiated without securing sufficient funds for the immovable property to be expropriated.
b. Obtaining a public interest decision
After the administration has secured sufficient funds for the expropriation of the immovable property, it is necessary to obtain a public interest decision for the expropriation of the property, just like in ordinary expropriation, and this is also mandatory in urgent expropriation. After securing sufficient funds for urgent expropriation, the next step is to obtain a public interest decision.
c. Determination of the property to expropriated
After the public interest decision is made, the administration determines the immovable property subject to expropriation. The procedure for determining the immovable property to be expropriated is regulated in Article 7, paragraph 1 of the Expropriation Law.
d. Taking the expropriation decision
After securing sufficient funds, making a public interest decision, and determining the immovable property subject to expropriation, the administration makes an expropriation decision. According to Article 7, paragraph 3 of the Expropriation Law, after making the expropriation decision, the administration notifies the land registry office where the immovable property is registered to annotate the expropriation in the land registry.
e. Transition from ordinary expropriation procedure to urgent expropriation procedure
The urgent expropriation process diverges from the ordinary expropriation procedure just before the attempt to purchase the property, as specified in Article 8 of the Expropriation Law. The procedures that must be followed up to this point must be followed even in extraordinary circumstances. After this stage, the administration is responsible for taking possession of the property without delay and taking the necessary steps to exercise control over it. The completion of the purchase procedures, which are subject to certain time limits in the Expropriation Law, may cause delays in the urgent expropriation process due to extraordinary and urgent circumstances. Therefore, the purchase method and subsequent process should be skipped and completed later, and the procedure specified in Article 27 of the Expropriation Law should be applied.
f. Obtaining an urgency decision
According to Article 27 of the Expropriation Law and the principles of urgent expropriation, the President examines the immovable properties for which urgent expropriation is requested and, if the urgency is confirmed, makes a decision to that effect.
g. Applying to the court, determining the value, and depositing it into the bank
After the “urgency” decision is made to expedite the expropriation process, the relevant administration must apply to the civil court of first instance in the location of the immovable property to be expropriated, requesting that the court appoint experts to determine the value of the property in accordance with Article 10 of the Expropriation Law.
After the value of the immovable property is determined by the court and deposited into the bank by the administration in the name of the property owner, the court decides to seize the property. Since the court’s proceedings are in the nature of evidence determination, the decision is not subject to appeal. The determined amount is not considered the actual expropriation price18.
h. Urgent seizure decision and allocation of the property
With the urgent seizure decision, which is a decision that allows for the seizure of the immovable property without the need for registration, the administration acquires a right to use the property19.
i. Conversion to ordinary expropriation procedure and completion of expropriation
After the administration takes possession of the immovable property under the urgent expropriation procedure, it should return to the ordinary expropriation process as soon as possible, complete the stages that were skipped, and ultimately determine the real and net value of the property, register it in the land registry in the name of the administration, and transfer its ownership to the administration. The Council of State has also emphasized in one of its decisions that the ordinary expropriation procedures should be completed after the urgent expropriation process has achieved its purpose20.
j. Determination of the expropriation price by the court and registration of the immovable property in the name of the administration
The administration that made the decision to seize the property must, after this stage, file a lawsuit in accordance with Article 10 of the Expropriation Law to determine the expropriation price by the court and to register the expropriated property in the name of the administration.
If the determined value of the property is higher than the amount determined and deposited into the bank in the previous lawsuit filed in accordance with Article 27 of the Expropriation Law, the administration must pay the difference to the owner, including interest. If the amount determined by the court is lower than the previously determined amount, the owner must pay the difference to the administration, including interest21.
After the determined expropriation price is deposited into the bank and the receipt is submitted to the court, the court writes a letter to the relevant land registry office where the property is registered, requesting that the property be registered in the name of the administration. In cases where expropriation is made in favor of private individuals, the registration is made in the name of the Treasury, unless otherwise specified in special laws22.
IV. COMPARISON OF EXPROPRIATION AND URGENT EXPROPRIATION
There is essentially a difference in process and speed between urgent expropriation and expropriation procedures. Apart from this, both procedures aim to expropriate the immovable property by the administration and make it a public asset, and the transactions made in this context are the same, but their order is different. In urgent expropriation, the stages other than the determination of the value of the immovable property are carried out later, and the immovable property is seized23.
Expropriation is the process of transferring the right of private property to the relevant administration by paying the real value determined by experts, based on public power and for the public interest. In cases where the expropriation process should not be delayed, i.e., where the public interest is urgent, the urgent expropriation procedure is different from the ordinary expropriation procedures, and the expert report is prepared first, and the other transactions are completed after the expropriation process. This procedure is called urgent expropriation.
After the value of the immovable property is determined, this amount is deposited into the bank. After the payment receipt is submitted to the court, an urgent seizure decision is made, and this decision is notified to the owner of the immovable property. If the owner of the immovable property accepts the deposited amount and transfers the title, this amount is considered as the expropriation price, and the expropriation is deemed to be finalized. Urgent expropriation also differs from ordinary expropriation in terms of authority. While the authority to expropriate is given to the state and public legal entities in ordinary expropriation, only the President is authorized to make the urgency decision required for urgent expropriation, which is foreseen to be applied in special and exceptional cases.
V. CONCLUSION
The primary duty of the administration is to maintain public order and provide public services to ensure public interest. To fulfill these duties, the administration needs certain movable and immovable properties. The administration can acquire these properties without the owner’s consent through expropriation and urgent expropriation procedures.
Expropriation is the process of the administration taking possession of privately owned immovable properties for public interest. Article 46 of the Constitution and the Expropriation Law provide the legal basis for this process. Expropriation is an administrative and executive transaction that involves the elements of authority, reason, purpose, subject, and procedure. The administration obtains sufficient funds, makes a public interest decision, identifies the property to be expropriated, and attempts to purchase it. If an agreement cannot be reached, the administration applies to the court to determine the expropriation price and register the property in its name.
Urgent expropriation is the process of taking possession of immovable properties in extraordinary situations or when there is an urgent need for public interest. Article 27 of the Expropriation Law regulates this process. Urgent expropriation is carried out by the President’s decision, and the court-determined price is deposited into the bank to take possession of the property. The process is then completed by reverting to the ordinary expropriation procedure.
Both expropriation and urgent expropriation procedures aim to acquire immovable properties by the administration and make them public assets. In urgent expropriation, the stages other than determining the value of the property are completed later, and the property is taken possession of. Urgent expropriation is applied in extraordinary and exceptional situations where the expropriation process cannot be delayed.
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FOOTNOTE
1 Tayfun Akgüner, Administrative Law, İstanbul 2021, 9. Edition, p. 838.
2 Turgut Tan, Administrative Law, Ankara 2019, 8. Edition, p. 625.
3 Akgüner, Administrative Law, p. 839.
4 Meltem Kutlu Gürsel, Expropriation Law, Ankara 2019, 3. Edition, p. 25.
5 Constitutional Court GK., T. 09.04.2003, E. 2002/79, K. 2003/29.
6 Expropriation Law, 08.11.1983 dated, 18215 numbered Official Gazzette.
7 Kutlu Gürsel, Expropriation Law, p. 25.
8 İsmet Giritli/ Pertev Bilgen/ Tayfun Akgüner, Administrative Law, İstanbul 2008, 3. Edition, p. 851.
9 Constitution, Act 46.
10 Akgüner, Administrative Law, p. 861.
11 Ahmet Nohutçu, Administrative Law, Ankara 2024, 31. Edition, p. 465.
12 Mehmet Ali Gölcüklü, Urgent Expropriation, Ankara 2017, 1. Edition, p. 47.
13 National Defense Obligation Law, 16.06.1939 dated, 4234 numbered Official Gazzette.
14 DİDDK, E. 2010/979, T. 13.01.2011.
15 Cenk Şahin, Urgent Expropriation, İstanbul 2018, 1. Edition, p. 98.
16 Şahin, Urgent Expropriation, p. 99-100.
17 Şahin, Urgent Expropriation, p. 100.
18 Ali Rıza İlgezdi/ Cem Güçlü/ Eren Sönmez, Urgent Expropriation Step by Step, Ocak 2019, 1. Edition, p. 25.
19 Supreme Court 12. HD, T. 03.05. 2012, E. 2011/29006, K. 2012/14929.
20 Council of State IDDK, T. 18.01. 2016, E. 2015/4842, K. 2016/9.
21 Supreme Court 18. HD, T. 16.04.2015, E. 2014/15497, K. 2015/6166.
22 Kutlu Gürsel, p. 277.
23 İlgezdi/ Güçlü/ Sönmez, Urgent Expropriation Step by Step, p. 25.
