ABSTRACT
In the article, the process of obtaining a building license in accordance with the zoning law and the responsibility of the owner in case of not obtaining the license or acting contrary to the license are mentioned, and in this direction, the obligations of the owner arising from administrative law and private law are touched upon according to the structures built or being built.
I. INTRODUCTION
Building a structure within the framework of the rules in the legislation is of great importance in terms of protecting the environment, especially human health, and establishing an orderly urbanization life. In order to carry out urban planning and regulate construction regimes within the city, it is necessary to ensure construction within the boundaries set by the Zoning Law No. 31941(“Zoning Law”). In this regard, lawful construction, which is the cornerstone of urban development, emerges as a requirement of public interest. Therefore, in order to prevent the risk of damage to the environment or third parties, the Zoning Law imposes certain limitations on the right of ownership. If the building owner fails to fulfill the legal obligations while exercising the powers arising from the property right, he/ she may face criminal sanctions such as demolition and fines in accordance with the Zoning Law. In addition, if the building owner fails to construct the building in accordance with the law, the responsibility arising from the law of obligations and criminal law will also arise. In this study, firstly, the concept of building license will be emphasized, then what is an illegal construction will be examined, and finally, the responsibility of the building owner arising from the illegal construction will be evaluated.
II. BUILDING LICENSE ACCORDING TO LEGISLATION
A. Building License Concept
Article 56 of the Constitution, entitled “health services and protection of the environment”, stipulates that “everyone has the right to live in a healthy and balanced environment”. This article serves the purpose of protecting, improving and developing the environment2. In this framework, the main purpose of the Zoning Law is to ensure the construction of healthy and orderly structures that are sensitive to the environment and that will ensure the maintenance of a humane life.
Obtaining a building license as an administrative act gives the right holder permission to build a building in accordance with the zoning and construction conditions. The legal basis of the building license is the zoning plan3. The concept of building permit is clearly regulated in Article 21 of the Zoning Law. For all structures falling within the scope of this law, it is obligatory to obtain a building permit from the municipality or governorships, with the exception of the exceptions specified in Article 26 (According to Article 26 of the Zoning Law, the relevant public institution is responsible for obtaining permits for public buildings and facilities and industrial facilities). Even if a change is made in the licensed buildings, in some cases, it may be necessary to obtain a license again. It is not necessary to obtain a building permit only for renovations and repairs that do not create a fundamental change in the structure. This ensures that the owners of immovable property must seek permission from the appropriate authority before exercising their right to build, and it also prevents construction without the authority’s knowledge or consent.
B. Conditions for Obtaining a Building License
Article 22 of the Zoning Law regulates in detail the conditions and procedures for obtaining a license. The reason for this regulation is that it is mandatory to obtain a license when starting a building or making extensive repairs and renovations.
1. License Application Process
First of all, the place to apply for a building license is the municipality or governorship. The application must be made by the building owners or legal representatives of the building owners. However, before this application, those who request a building license must request that the zoning right of the parcel where they will build is determined and notified to them by the competent administration4. In line with this request, a zoning status certificate is issued by the administration and then the zoning status certificate is attached to the building license application. The purpose of adding the zoning status certificate to the building license applications is to accurately determine the location and boundaries of the zoning parcel5. After obtaining the zoning status certificate, an application is made to the municipalities or governorships with other documents in addition to the petition. These documents include title deed, architectural project, static project, electrical and installation projects, machinery installation project, drawings and calculations, sketch with relief or if not, dimensional sketch, construction site supervisor certificate6. An application is made to the relevant municipality with these documents. From the date of application, if the license and its annexes are examined and found to be complete and correct, a building license is issued by the municipality within 30 days at the latest from the date of application.
C. Starting Construction After Obtaining a Building License
In order to commence construction in accordance with the permit obtained from the competent authority, certain deadlines stipulated by law must be complied with. Pursuant to Article 29/1 of the Zoning Law, the commencement date is limited to two years and the completion date is limited to five years from the commencement date. A building that is not completed within five years will be deemed unlicensed. In practice, it is important to determine when the moment of “commencement of construction” occurs.
It has been a matter of debate in practice whether “starting construction activities in terms of building inspection” and “starting construction in terms of building license” have the same meaning7. In this case, it is necessary to explain the definition of construction activities in terms of building inspection and what should be understood from this definition.
According to Article 1 of the Building Inspection Law No. 47088 (“Building Inspection Law”), it is necessary to ensure project and construction supervision and to determine the procedures and principles regarding building inspection in order to ensure that the building is constructed in accordance with the standards. The purpose of the inspection here is to inspect both the building itself and its construction in order to ensure the safety of life and property.
The implementation of some procedures for the building to pass the inspection is important for the construction process of the building. One of these is the process of obtaining a foundation visa, which is the process that approves the quality of the concrete poured into the foundation and the iron used in the concrete. For the building for which a license has been obtained, it is a condition to obtain the foundation visa permit before starting construction. This visa is a document that certifies that the construction of the “building” subject to the building license has started after the building license is obtained and has various functions. Such that, just as the legal completion of the construction depends on a permit, the legal commencement of the construction also depends on a permit (permission to obtain a foundation visa)9. If the foundation visa is granted, the 2- year period given for the construction of the building according to the zoning law will be deemed to have started. However, in some cases, it is observed that the commencement of construction is delayed or not realized at all after obtaining the building license. In such cases, as stated in Article 29 of the Zoning Law, the building permit becomes null and void.
D. Legal Nature and Judicial Review of Building Permit
Obtaining a building permit is a unilateral individual administrative act. An individual administrative act is defined as an administrative act that affects, changes or terminates the legal status of individuals with the unilateral will of the administration and is exhausted by being applied once. In other words, these are actions that create a unique situation only for these elements by applying general regulatory acts to a specific person, object or event10.
Likewise, since the procedure of not granting a license is a unilateral conditional negative procedure of the administration, an action for annulment can be filed against the administration within 60 days. When the annulment decision is given, the transaction is retroactively annulled as of the date of its execution. However, in the lawsuit filed against the cancellation of the building license, the decision of the court does not replace the license, it is necessary to apply for a license again11.
III. BUILDING CONTRARY TO ZONING LEGISLATION
In terms of its content, the Zoning Law is regulated in order to ensure that settlements and constructions in these places are formed in accordance with the plan, science, health and environmental conditions. As a matter of fact, Article 20 of the same law mentions that the zoning plan must be made in accordance with the regulations, license and annexes. For this reason, if one of the three conditions is not complied with, the building will be deemed as an ‘illegal structure’. In case of detection of the contrary construction, the construction will be sealed and the construction will be stopped immediately in accordance with Article 32 of the Zoning Law.
The term “building in violation of the Zoning Law” is defined in detail in Article 4, paragraph 4 of the Regulation on the Implementation of Law No. 2981, Some Articles of which were Amended and Some Articles were Added by Law No. 329012 “Unlicensed buildings are the buildings that are contrary to the license and its annexes, science and health rules, floor layout, floor area, neighboring distances, zoning road, front line, building depth, zoning plan zoning principles, encroachment to the neighboring parcel or areas reserved for public services and facilities such as roads, green areas, parking lots in the zoning plans, and are built in places where there is an absolute construction ban.” In addition, Article 4 of the Unplanned Areas Zoning Regulation13 (“Unplanned Areas Zoning Regulation”) also defines the definition of a building in violation of the Zoning Law. According to this regulation, a building in violation of the Zoning Law is defined as “Structures built without permission from the mukhtar, structures without a license, structures that are contrary to the license and its annexes, science and health rules, structures that do not comply with the provisions of the legislation on floor layout, floor area, neighboring distances, front line, building depth and similar issues, and structures that encroach on the neighboring parcel, road, areas reserved for public services and facilities or are built in places where construction is prohibited”14.
A. Unlicensed Structures
Structures built in violation of the relevant provisions of the Zoning Law are not considered “legal structures”15. Structures constructed without obtaining a building license or without meeting the conditions specified in Article 27 of the Zoning Law are classified as unlicensed structures. In practice, such structures are also referred to as “illegal construction”.
There are two possibilities for an unlicensed building to exist. Either there is a building that was started to be constructed without a permit from the beginning, or there is a building that was initially permitted in accordance with the law, but later became contrary to the zoning law for various reasons. There is no difference in terms of legal characterization between the construction of the building completely without a license and the construction of the building with a license but in violation of the license and its annexes. Both situations are considered as unlicensed construction16.
Structures whose licenses are revoked are also considered as unlicensed structures. When their licenses are revoked by a court decision or by the administration, these buildings cease to have a building license and become unlicensed structures17.
B. Structures Contrary to License and Annexes
Structures contrary to the license and its annexes may occur in two ways: contradiction to the project in the internal dimensions of the building and contradiction to the project in the external dimensions of the building. Changes in the width and height of skylights and staircases can be given as an example of contradiction to the project in its internal dimensions. On the other hand, in the external dimensions of the building, the increase or decrease of the length and height of the building in a way that was not foreseen in the project. Therefore, as stated before, in the event that changes are made to the building after obtaining a building license, it will be necessary to obtain a new license18.
C. Buildings Contrary to Other Zoning Rules
1. Structures Contrary to Science and Health Rules
According to the Unplanned Areas Zoning Regulation, structures built without observing the rules of science and health are considered to be in violation of the Zoning Law. Within the scope of zoning integrity, it is obligatory to create a uniform whole with the environment. Likewise, as a requirement of a safe environment, it is a basic requirement of proper construction that the structures are robust and regular19. In this framework, it means taking into account the structural quality of the building to be built, its type, the construction technique to be applied, the conditions such as the characteristics of the materials in the building, and taking into account the rules of science and health.
2. Buildings Violating Floor Regulations, Floor Area, Neighbor Distances, Front Facade Line, Building Depth and Similar Rules
Law No. 634 on Condominium (“Condominium Law”) stipulates that the construction must be completed and usable in order to establish a condominium20. If these conditions are violated, a building that violates the Condominium Law is formed.
Floor area refers to the area covered by the projection of the part of the structures, including the annexes and outbuildings built in the garden, on the natural ground or leveled ground, provided that it does not violate the building approach limit. In the event that the said projection area violates the building approach limit, an illegal structure occurs. In the rules related to neighboring distances, detached building is another zoning rule that should be taken into consideration. The distance of the building to the neighboring parcel boundary is important in the discrete building layout. The neighboring distance is measured by the height and width of the building and the number of dwelling or usage units. In the event that a building overflows into the neighboring parcel, a flood structure is formed21.
3. Structures Started without Notification to the Mukhtar’s Office
Article 27 of the Zoning Law and the Regulation on Unplanned Structures also stipulate the requirement to notify the mukhtar’s office. However, even though this is valid for the structures in question, the Unplanned Structures Regulation categorizes structures built without notification to the mukhtar’s office, without a special building condition, as structures in violation of the Zoning Law.
IV. OWNER’S LIABILITY DUE TO CONTRARY STRUCTURES
It is clear that sanctions should be imposed if it is determined that an unlawful construction has occurred. The sanctions to be imposed due to the unlawfulness in question are divided into two as judicial and administrative sanctions. Administrative sanctions are divided into two as administrative fines and revocation of the contracting certificate22.
A. Administrative Sanctions
Article 32 of the Zoning Law stipulates that if the administration determines that the construction violates the zoning law, the construction shall be stopped immediately, the building shall be demolished or a building holiday report shall be issued. However, pursuant to Article 42/2 of the Zoning Law, the Administration may also impose an administrative fine on the owner of the building in case of unlawful acts and situations.
In a decision regarding unlicensed buildings, the Council of State authorizes the imposition of a fine on the building’s owner, deeming it adequate for the administration to identify the unlicensed building or the building constructed in violation of the license23. The validity of the fine is unaffected by the fact that the building owner was not given the full one-month period required by law to eliminate the license non-compliance, or that the period was not given at all.
1. Immediate Suspension of Construction and Demolition Order
Administrative sanctions, which are listed as immediate suspension of construction and demolition of the building, are included in Article 32 of the Zoning Law. It should be highlighted as a significant point that the legislator has provided the building owner with the opportunity to remedy these zoning law violations with this article and has anticipated progressively harsher penalties for failure to do so24.
As soon as the administration learns about the illegal construction ex officio or upon notification, it seals the construction and decides to stop it immediately. In addition, pursuant to Article 32/3 of the Zoning Law, the relevant administration notifies the land registry office in writing within 7 days at the latest that the building is in violation of the Zoning Law. Thus, it is recorded in the declarations section of the title deed records. The owner of the building may request the relevant administration to remove the seal by obtaining a license within 1 month at the latest from the notification or by bringing the building into compliance with the license. If it is concluded that the contradiction to the license has been eliminated or the building has been licensed, or the building has been brought into compliance with the license, the municipality and/or governorship shall lift the seal and allow the construction to continue.
If the previous decision to stop the construction is not complied with, the license will be canceled and the building will be demolished. Therefore, the administration must first warn the building owner and give a deadline for the elimination of the contradiction. If the non-compliance with the license and its annexes is not corrected even though 1 month has passed since the determination and building holiday report, the demolition decision will come to the agenda. As a matter of fact, in a decision of the Council of State, “While the building owner must be given the necessary warning to bring the building in compliance with the legislation, it is against the law to cancel the construction license and occupancy permit and to issue a demolition decision in a way that will directly lead to the demolition of the building25. “Likewise, in order to decide on the demolition of the building in violation of the license, the occupancy permit must first be canceled. In another decision of the Council of State, “In order to decide on the demolition of the parts of a building that is in violation of the license, the occupancy permit must be canceled”26. Thus, the Council of State found it unlawful to decide to demolish the building without the necessary warning to the owner.
The building owner is responsible for demolishing the building for which a demolition order has been issued by the administration. If the building owner fails to demolish the building, the demolition is carried out by the administration and the demolition costs are collected from the building owner27. In addition, the legislator has not regulated that the relevant person should be given a deadline after the demolition decision. The time period to be determined for demolition is decided by taking into consideration factors such as the condition of the structures, their location, public order and negative effects on the surrounding people28.
2. Revocation of Building License
If the construction is not started within 5 years or if it is built in violation of the Zoning Law and the Unplanned Areas Zoning Regulation, the building permit shall be canceled. In this case, the permit shall be canceled and the construction shall be sealed and the construction shall be stopped. If this violation is not corrected within 30 days from the date of sealing, the building permit shall be canceled.
a. Owner’s Rights Against Revocation of License
If the administration has issued a building license to the owner as a result of the examination and there is a construction in accordance with the existing building license, the level reached by the building owner will give rise to a vested right29. In a decision of the Council of State; “In the event that it is determined that the building was built in accordance with the construction license before the judicial decisions, it should be accepted that the construction has been completed for the building or parts of the building and the acquired right has arisen”30. According to the approach of the Council of State, if the parts of the building completed in accordance with the construction license become illegal as a result of changes in the zoning status, the building will not be protected and cannot be put into use by granting occupancy permit. However, the owner of the building who continues the construction by relying on the decision of the administration will have the right to collect the expenditures from the administration. In the event that the parts contrary to the redetermined construction rights are demolished, a full judicial action may be filed.
3. Administrative Fine
The legislator has imposed an administrative fine, which is one of the administrative sanctions against those responsible for unlawful construction. In fact, Article 42 of the Zoning Law contains a regulation on this matter: “Administrative fines of not less than 1,000 Turkish Liras shall be imposed, depending on whether it threatens the safety of life and property and the magnitude of the violation”. The calculation of the administrative fine is found by determining the amount based on the square meter calculation of the contrary construction, depending on the intensity of the violation. The decision of the administration to impose a fine must be taken within 10 working days after learning about the violation. After this period, it is not possible for the administration to implement this decision31.
4. Criminal Sanction
Pursuant to Article 184 of the Turkish Criminal Code No. 523732 (“TCC”), within the scope of the crime of causing zoning pollution, a person who constructs or has constructed a building without a building license or in violation of a building license shall be sentenced to imprisonment from one year to five years. If the building constructed without a building license or in violation of the building license is later brought into conformity with the zoning plan, no public prosecution will be initiated against the persons who constructed or had the building constructed and the persons who allowed the construction sites to be connected to electricity, water or telephone. If there is an existing public case, it will be dismissed and the convicted penalty will be completely eliminated. This provision can be considered as a special effective remorse provision33.
a. Criminal Sanctions in Case of Death and Injury Due to Earthquake
In the event of death or injury as a result of the demolition of illegal structures, it is of great importance to determine the criminal law responsibility in a fixed manner. It is one of the primary and indispensable conditions in terms of compliance with the law that a constructed building complies with the 1/5000 and 1/10000 scale master development plan, which is defined in Article 5 of the Zoning Law, which is prepared by each municipality every five years in order to determine its own environmental order and approved and put into force by the municipal council.
In a scenario where the contractor constructs a building in violation of the legislation and then a possible earthquake disaster occurs, it is inevitable that loss of life will occur. Since more than 50,000 lives were lost and more than 100,000 injured as a result of negligent and/or negligently constructed illegal buildings in the Kahramanmaraş earthquake that occurred on February 6, 2023, the extent to which the building owner, the contractor and the persons who have the authority to supervise will be responsible is in need of explanation. Therefore, in order to determine the moral element for which the perpetrators will be held responsible in cases of death and injury in earthquakes, the act must first be determined. In order to make this determination, samples should be duly taken from the destroyed buildings and these samples should be subjected to technical analysis and examined by an expert. This process is both a legal and a de facto obligation34.
In a decision made by the 12th Criminal Chamber of the Court of Cassation as a result of the death of two people under the cave-in of a building in an earthquake, “The defendant, who caused the complete collapse of the apartment building and the death of two people under the cave-in, should be sentenced by moving further away from the lower limit by considering the principle of proportionality in punishment in accordance with the rules of justice and equity. At this point, it is understood that the defendant did not fulfill his obligations at every stage of the collapsed building, and that the conditions of conscious negligence have occurred against him by acting against the obligation of attention and care in terms of this foreseeable result”35. As a result of this decision, the Court of Cassation ruled that the crime of manslaughter with conscious negligence was committed in respect of the building owner, the contractor and the construction supervisor.
However, in an individual application to the European Court of Human Rights (“ECtHR”) following the damage to the building caused by the earthquake and the inadequacy of the relief activities and loss of life afterwards, the court accepted that the administration knew that there was an earthquake risk in the area in question and that the local authorities were directly responsible for issuing building permits and regulating land use36. In the continuation of the judgment, the ECtHR stated that the destroyed buildings in the disaster area did not comply with construction and safety standards and that this destruction had severe consequences on human life and ordered the applicant to pay material and moral damages37.
B. Private Law Sanctions
1. Responsibility of the Building Owner
In addition to the responsibility of the building owner arising from the Zoning Law, the responsibility arising from private law will also be in question. Pursuant to the provisions of the Turkish Civil Code No. 472138 (“TCC”) and the Turkish Code of Obligations No. 609839 (“TCO”), the building owner may be held liable under strict liability for damages caused by structures contrary to the zoning law. In this context, the building owner is liable for the damages caused by structures contrary to the zoning law pursuant to Article 69 of the TCO and Article 730 of the TCC.
The strict liability regulated under Article 69 of the TCO refers to the legal liability arising from the damage suffered by a third party due to construction defects or maintenance deficiencies in a building or other construction work40. At this point, defects in the construction of the building and maintenance deficiencies indicate a duty of care. However, failure to fulfill this obligation does not mean being at fault41. This is because, according to Article 69 of the TCO, in order for the building owner to be held liable, it is not necessary for the lack of care to reach the quality of fault42. At this point, the careless behavior may be an act arising from the building owner, or it may be caused by the careless act of the third party.
The owner of the work of construction may be released from liability only in the presence of reasons that break the causal link. In this way, the liability foreseen for the owner of the building and construction work is characterized as “aggravated strict liability” unlike other cases of strict liability43.
However, in one of its decisions, the Court of Cassation stated that the owner cannot be held liable if the causal link is severed due to force majeure, gross negligence of the victim or third party; however, in case of “additional fault” of the owner, the severing of the causal link will not eliminate the liability44 Subsequently, he mentioned that the liability of the owner of the building and structure may be imposed in the presence of circumstances arising from the breach of the objective duty of care.
2. Conditions of Liability
a. Deterioration or Lack of Maintenance of Building or Construction Work
If a building or structure is not suitable for its function and intended use, or if it is not constructed in accordance with legal and technical requirements, it may be said that there is a defect in the construction of the structure. However, not all construction deficiencies should be taken into account, especially deficiencies that are significant enough to seriously impede the intended use45.
b. Completion of the Building or Construction Work
According to Article 69 of the TCO, it is controversial whether strict liability arises for buildings and structures that have not been completed or are under construction. According to an opinion put forward, the building or structure does not need to be completed in order for the liability of the building owner arising from Article 69 of the TCO to arise46. The owner of the building may also be held strictly liable for structures that are still under construction and incomplete47. According to the opposing opinion, in order for the liability to arise against the owner due to the deficiency arising from the construction or maintenance, the building must be completed and started to be used in accordance with the purpose of allocation48.
During the construction phase of the building or construction work, when the building owner and the contractor are not the same person, the control of the work largely belongs to the contractor. It will be difficult to analyze whether the deficient work arising in this part is due to the construction phase or the lack of construction or maintenance. In a situation where the contractor is actually responsible, it may be unfair to attribute responsibility to the owner of the building49. As a matter of fact, in a decision of the 3rd Civil Chamber of the Court of Cassation, a completed building or construction work was sought in order to be able to go to the responsibility of the building owner by saying “ruhs”50.
c. The Damage Has Occurred
It is unquestionably accepted that all kinds of damages fall within the scope of Article 69 of the TCO. This includes the physical damages suffered by people in terms of health, as well as the damages suffered in terms of property. For example, the collapse of a balcony in a building or work of construction due to lack of maintenance or defect is a damage to property.
d. Presence of a Connection of Causation
In order for the owner of the building or work of construction to be held liable, the damage must be caused by a construction defect or lack of maintenance. What is important here is the existence of an appropriate causal link. The causal link can be defined as the causal relationship between an unlawful act and the resulting damage. Although there are various theories in the doctrine, the generally accepted theory is the appropriate causal link theory51. According to this theory, it is evaluated as a bond based on the possibility of the occurrence of the damage according to the ordinary course of events and general life experience or increasing the probability of the damage52.
In the appropriate causal link, it is not required that the faulty building or construction work directly causes a damage. However, if the fault of the injured party is of such intensity that the causal link is severed, the injured party shall be liable together with the owner of the building.
3. Consequences of Liability
a. Right to Compensation
Pursuant to Article 69 of the TCO, even if the defects in the construction of a building or a work of construction are not the result of the owner’s act (defect, carelessness, failure to comply with technical conditions or plans), the owner is held liable and obliged to pay for the damage caused. According to the said article, the owner of the building or work of construction is obliged to compensate for the damage caused by the existence of damage, appropriate causal link and deficient or defective building or work of construction, which are the conditions of strict liability. The injured party, after filing a lawsuit for compensation, bears the burden of proof regarding the liability of the owner of the immovable property. However, this lawsuit may also be filed by persons who have a neighborly relationship. As a matter of fact, with the regulation introduced in Article 69/2 of the TCO, it is mentioned that the usufruct and residence right holders will be jointly and severally liable together with the owner for the damages arising from the deficiencies in the maintenance of the building.
b. Right of Recourse of the Building Owner
Pursuant to Article 69 of the TCO, the building owner who compensates the damages of third parties has the right of recourse to other persons responsible for this damage. For example, after the owner compensates the damages caused by a collapsed building, he may have recourse to the building inspection company, architect, engineer or the person he purchased the building from, who are responsible for the occurrence of this damage53. However, if the building’s violation of the zoning law is caused by the owner’s own actions, the owner cannot use the right of recourse.
Those who have suffered damages are not entitled to sue for compensation directly against the persons to whom the building owner may have recourse. If the damages suffered by the occupants of the building are caused by the failure of the administration to fulfill its duty of building supervision, the injured parties may prefer to file a lawsuit against the administration instead of the liability of the building owner54.
V. CONCLUSION
Zoning law stipulates that the building must be constructed in accordance with the license and its annexes and regulations in order to ensure construction. However, it is important that the license application procedures are duly carried out beforehand. The construction must be started within 2 years following the permission granted by the administration after the license application process duly made.
Structures built without complying with the rules of zoning law are subject to criminal, administrative and private law sanctions under the Zoning Law. Such structures include structures without a license and in violation of the annexes to the license, structures contrary to the rules of science and health, structures in violation of the floor layout, floor area, neighbor distances, front line, building depth and similar rules, and structures started without notification to the mukhtar. Any building started without complying with these rules shall be deemed to have entered the status of a building contrary to the zoning law. The illegal construction may need to be stopped immediately. In the event that the construction is stopped, the building permit is canceled by the administration if this contradiction is not corrected within 30 days from the date of the decision. In fact, if the building is not brought into compliance with the law within the given period, a demolition decision may be taken by the administration. In the event that third parties are harmed by the construction, they have the right to claim compensation from the owner of the building in accordance with Article 69 of the TCO.
BIBLIOGRAPHY
ALİ RIZA İLGEZDİ/ GÖKHAN BATAK, Yapı Ruhsatı – İnşaat İzni, İstanbul, 2. Baskı, 2024.
Çevre ve Şehircilik Bakanlığı, “İnşaat Ruhsatı Almak İçin Gerekli Belgeler” https://webdosya.csb.gov.tr/db/burdur/menu/insaat_ruhsati_almak_icin_gerekli_belgeler_20230103034858.pdf (Access Date: 29.07.2024).
DANIŞTAY 14. D., E 2014/5573, K. 2015/7307, 08.10.2015.
DANIŞTAY 6. D., E. 2002/3582, K. 2004/394, 23.1.2004.
DANIŞTAY 6. D., E. 2010/9076, K. 2011/469, 09.06.2010.
DANIŞTAY 6.D., E. 2004/3982, K. 2006/4919, 20.10.2006
DOLUNAY KARAÇAY, Yapı Malikinin Tazminat Sorumluluğu, Ankara, 1. Baskı, 2021.
EDA ÖZER, İmar Hukukunda Ruhsatsız Yapı, Ankara, 6. Baskı, 2024.
FATİH YURTLU, “Mevzuata Aykırı İnşa Edilen Yapıların Depremde Yıkılması Nedeniyle Meydana Gelen Ölüm ve Yaralanmalar Bakımından Ceza Hukuku Sorumluluğu,” Ankara Barosu Dergisi Deprem Özel Sayısı, 1. Cilt, Kamu Hukuku 2023.
FERHAT CANBOLAT/ DİLA OKYAR, “Kat Maliklerinin Yapı Maliki Sıfatıyla Hukuki Sorumluluğu”, Ankara Barosu Dergisi, 2023/2.
FİKRET EREN, Sorumluluk Hukuku Açısından Uygun İlliyet Bağı Teorisi, Ankara, 1975.
HALİL KALABALIK, İmar Hukuku Dersleri, Ankara, 12. Baskı, 2017.
HALUK TANDOĞAN, Borçlar Hukuku Cilt II, 2008.
İ. GÜNEŞ GÜRSELER, “İnsan Hakları, Çevre, Anayasa”, TBB Dergi, S 75, 2008.
NUSRET İLKER ÇOLAK, İmar Hukuku, İstanbul, 2. Baskı, 2014.
OĞUZ SANCAKDAR, İmar Hukuku, Ankara, 2. Baskı, 2024.
ÖMER KÖROĞLU, İmar Hukukunda Yapı Kavramı ve Temel Yapı Belgeleri, İstanbul, 1. Baskı, 2017.
SELMAN ÖZDEMİR, “Mukayeseli Bir İnceleme: Yapı Denetiminde “İnşaata” Başlama ve Yapı Ruhsatında “Yapıya” Başlama”, HKÜHFD, Ocak, 2023 Cilt: 13, Sayı: 25.
SEVDA GÜLTEKİN GÖKTOLGA, “Yapı Ruhsatları Açısından Kazanılmış Hak”, İstanbul Üniversitesi Kamu Hukuku Ana Bilim Dalı Doktora Tezi, 2014.
SİMGE SARAÇOĞLU, Türk Borçlar Kanunu Kapsamında Yapı Malikinin Sorumluluğu, İstanbul, 1. Baskı, 2018.
SİNAN ÇINAR, Belediyelerde Yıkım Hukuku, Ankara, 1. Baskı, 2018.
SUAT ŞİMŞEK, “İmar Durum Belgesi Nedir? İmar Durum Belgesi Nereden ve Nasıl Alınır?” https://gayrimenkulmevzuati.com/imar-durumu-belgesi-nedir-nereden-ve-nasil- alinir/ , (Access Date: 29.07.2024).
TANER AYANOĞLU, Yapı Hukukunun Genel Esaslar, İstanbul, 1. Baskı 2014.
TUFAN ÖĞÜZ/ KEREM ÖZ, Sorumluluk Hukuku Sempozyumu Bildiri Kitabı, İstanbul, 1. Baskı, 2022.
YARGITAY 12. CD., E. 2020/4862, K. 2023/3148, T. 20.9.2023.
YARGITAY 3. HD., E. 2013/15721, K. 2014/961, 27.01.2014.
YARGITAY 3. HD., E. 2022/6997, K. 2023/2043, 6.7.2023.
YASEMİN GÜLLÜOĞLU, Hüseyin Hatemi’nin 85. Yaşına Armağan ‘İyiniyet’, İstanbul, 1. Baskı, 2023.
YASİN SEZER/ RECEP EMRE KALKAN/ MUSTAFA EMRE ŞAHİN, İmar Hukuku Dersleri, Ankara, 6. Baskı, 2020.
YASİN ULUSOY/ ŞEBNEM M. YALÇIN/ SENAR Ç. TUNCER, Borçlar Hukuku Genel Hükümler, İstanbul, 2019.
FOOTNOTE
1 İmar Kanunu, Resmi Gazete (RG) dated 9.5.1985 and numbered 18749.
2 İ. Güneş Gürseler, İnsan Hakları, Çevre, Anayasa, TBB Dergi, Issue 75, 2008, p. 200.
3 Ali Rıza İlgezdi/ Gökhan Batak, Yapı Ruhsatı - İnşaat İzni, Ankara, 2024, p. 56.
4 Suat Şimşek, İmar Durum Belgesi Nedir? İmar Durum Belgesi Nereden ve Nasıl Alınır?” https:// gayrimenkulmevzuati.com/imar-durumu-belgesinedir-nereden-ve-nasil-alinir/ (Access Date: 29.07.2024).
5 Sevda Gültekin Göktolga, Yapı Ruhsatı Açısından Kazanılmış Hak, Istanbul University Department of Public Law PhD Thesis, 2014 p. 61.
6 Çevre Şehircilik ve İklim Değişikliği Bakanlığı, “Documents Required to Obtain a Construction License”,https:// webdosya.csb.gov.tr/db/burdur/menu/ insaat_ruhsati_almak_icin_gerekli_belgeler_20230103034858.pdf (Access Date: 29.07.2024).
7 Selman Özdemir, Mukayeseli Bir İnceleme: Yapı Denetiminde “İnşaata” Başlama ve Yapı Ruhsatında “Yapıya” Başlama HKÜHFD, January, 2023 Vol. 13, No: 25.
8 Yapı Denetim Hakkında Kanun, 29/6/2001 dated, 24461 numbered Resmi Gazete (RG).
9 Özdemir, p. 91.
10 Göktolga, p. 55.
11 Oğuz Sancakdar, İmar Hukuku, 2. Baskı, Ankara, 2024, p. 484
12 3290 Sayılı Kanun İle Bazı Maddeleri Değiştirilen ve Bazı Maddeler Eklenen 2981 Sayılı Kanunun Uygulanmasına Dair Yönetmelik, Resmi Gazete (RG) dated 23.07.1986 and numbered 19173.
13 Plansız Alanlar İmar Yönetmeliği, Resmi Gazete (RG) dated 2/11/1985 and numbered 18916.
14 Sinan Çınar, Belediyelerde Yıkım Hukuku, 1. Baskı, Ankara, 2018, p. 7.
15 Halil Kalabalık, İmar Hukuku Dersleri, 12. Baskı, Ankara, 2023, p. 694.
16 Yasin Sezer/ Recep Emre Kalkan/ Mustafa Emre Şahin, İmar Hukuku Dersleri, 4. Baskı, Ankara 2020, p. 172.
17 Kalabalık, p. 694, Yıldırım, İmar Hukukuna Aykırı Yapılar Üzerine İdarenin Yetki ve Yaptırımları, p. 57
18 Eda Özer, İmar Hukukunda Ruhsatsız Yapı, Ankara, 6. Baskı, 2024, p. 38.
19 Ömer Köroğlu, İmar Hukukunda Yapı Kavramı ve Temel Yapı Belgeleri, 1. Baskı, Istanbul, 2017, p. 165.
20 Kat Mülkiyeti Kanunu, Resmi Gazete (RG) dated 2/7/1965 and numbered 12038.
21 Crowded p. 696.
22 Nusret İlker Çolak, İmar Hukuku, İstanbul, 2. Baskı, 2014, p. 612.
23 Danıştay 6. D., 2004/3982 E, 2006/4919 K, 20.10.2006.
24 Sezer, Kalkan, Şahin, p. 173.
25 Danıştay 6. D., 23.1.2004, E. 2002/3582, K. 2004/394.
26 Danıştay 14. D., 08.10.2015, E. 2014/5573, K. 2015/7307.
27 Sezer, Kalkan, Şahin, p. 175.
28 Çolak, p. 611.
29 Çolak, p. 558.
30 Danıştay 6. D., E. 2010/9076, K. 2011/469, 09.06.2010.
31 Çolak, p. 620
32 Türk Ceza Kanunu, Resmi Gazete (RG) dated 26/9/2004 and numbered 25611
33 Sezer, Kalkan, Şahin, p. 191
34 Fatih Yurtlu, Ankara Barosu Dergisi Deprem Özel Sayısı, Volume 1, Public Law, p. 385.
35 Yargıtay 12. CD., T. 20.9.2023, E. 2020/4862, K. 2023/3148.
36 European Court of Human Rights, M. zel and Others Application Nos. 1435/5, 15245/5 and 16051/05.
37 Melike Çolakoğlu, Deprem Nedeniyle İdarenin Kusur Sorumluluğu, 1. baskı, Ankara, 2023 p. 64.
38 Türk Medeni Kanunu Resmi Gazete (RG) dated 2/11/2001 and numbered 24607.
39 Türk Borçlar Kanunu, Resmi Gazete (RG) dated 4/2/2011 and numbered 27836.
40 Ferhat Canbolat/ Dila Okyar, Kat Maliklerinin Yapı Maliki Sıfatıyla Hukuki Sorumluluğu, Ankara Bar, Association Journal, 2023/2.
41 Simge Saraçoğlu, Türk Borçlar Kanunu Kapsamında Yapı Malikinin Sorumluluğu, Art. 69, 1st Edition, Istanbul, 2019, p. 24.
42 Fikret Eren, Borçlar Hukuku Genel Hükümler, 2017, Istanbul p. 666.
43 Eren, p. 670.
44 Yargıtay 4. HD., T. 24.02.1997, E. 1996/11374, K. 1997/1191
45 Dolunay Karaçay, Yapı Malikinin Tazminat Sorumluluğu, 1st Edition, Ankara, 2021 p. 68
46 Haluk Tandoğan, Borçlar Hukuku Cilt II, 2008, p.174.
47 Yasin Ulusoy/ Şebnem M. Yalçın/ Senar Ç. Tuncer, Borçlar Hukuku Genel Hükümler 9, p. 98.
48 Eren, p. 677.
49 Karaçay, p. 52.
50 Yargıtay 3. HD., E. 2013/15721, K. 2014/961, 27.01.2014.
51 Fikret Eren, Sorumluluk Hukuku Açısından Uygun İlliyet Bağı Teorisi, Ankara, 1975, p. 234; Tufan Öğüz/ Kerem Öz, Sorumluluk Hukuku Sempozyumu Bildiri Kitabı, Istanbul, 2022, p. 4; Oğuzman / Öz, Vol. II, p. 151.
52 Yasemin Güllüoğlu, Hüseyin Hatemi›nin 85. Yaşına Armağan ‘İyiniyet’, Istanbul, 2023, p. 77.
53 Ulusoy/ Yalçın/ Tuncer, p. 98-99.
54 Taner Ayanoğlu, Yapı Hukukunun Genel Esasları, 2014, p. 357.
