15.01.2024

Authors: Sema Çelebi, Oğuz Çerçi 

The majority of the population in Turkey is concentrated in earthquake-prone zones. Due to the earthquakes that occur, the seismic resistance of the structures in our country against earthquakes is constantly debated, and efforts are made to develop solutions to the issue. Currently, in Turkey, the  Determination Of A Risky Building  and urban transformation processes have become widespread for this reason. It can be said that tenants, like property owners, are also affected by the demolition processes of buildings. In this legal brief, the rights of tenants in the case of risky building determination, demolition, and evacuation decisions under the Law of Transformation of Areas under the Disaster Risks (Law No. 6306) ("Law") and the Regulation on the Implementation of Law of Transformation of Areas under the Disaster Risks ("Regulation") will be examined.

1.   Determination of Risky Building Process

The Law defines a risky building as follows: "A building, located inside a designated risky area or, even if outside, having completed its economic lifespan or has been determined, based on scientific and technical data, to be at risk of collapse or severe damage." Risk assessment examinations should be conducted by the institutions and organizations specified in Article 6 of the Regulation, and the results should be reported to the Administration. If the Administration determines that the building is not structurally safe, a risky building identification is carried out for the building. This situation is then reported to the relevant land registry office, and a annotation indicating the risky building is annotated on the property. After the determination of a risky building, this decision is notified to the real and personal rights holders by the administration. They are informed that they can object to the decision; otherwise, it is notified that the risky structure must be demolished by the relevants within the period determined by the administration or it will be demolished by the administration. The objection period is started with this notification.

a.   Objection Process Against Determination of Risky Building

It is necessary to determine who has the right to object to the determination of a risky building and whether tenants have the right to object to the identification of a risky building if they have current and legitimate interests. It can be said that, based on the explicit regulations in Article 3/1 of the Law and Article 7 of the Regulation, it can be said that tenants do not have the right to object. The purpose of notifying parties other than the owner and legal representatives about the determination of risky building is to inform the relevant individuals, take necessary precautions, and prevent potential hardships that may arise. Although there are opinions in doctrine suggesting that both real and personal right holders should have the right to object, the explicit provision in the legislation grants the right to object only to the owner and legal representatives. Therefore, we are of the opinion that, in the current legal framework, tenants do not have the right to object, even if they have current and legitimate interests. In conclusion, against the determination of a risky building, owners or their legal representatives can object within fifteen days from the date of notification by submitting a petition to the relevant Directorate mentioned in the Regulation, where the building is located.

b. Annulment Action Against the Determination and/or Demolition Decision of a Risky Building

The decision made by the Administration, following the examination report prepared by the institutions and organizations listed in the Regulation, which characterizes the building as a risky building, is also of an administrative act. So, it is possible to file an administrative lawsuit against the administrative act of risky building determination.  Indeed, Article 6, Paragraph 9 of Law No. 6306 refers to Law No. 2577, indicating that a lawsuit can be filed within 30 days from the notification of the rejection of objection or the risky determination against administrative measures taken under the law. Therefore, it is possible to file a annulment action against the risky building determination decision made by the administration and the eviction and demolition decision, which is executive complement to this decision.

Here, since there is no explicit provision on who can file a action for annulment, unlike the objection process, the question of whether tenants can file a annulment action should be discussed. As known, the principle in administrative law is that anyone with a current and legitimate interest can file a action for annulment. In doctrine, there is an opinion stating that tenants shall be able to file a lawsuit because they also affected from the risky building determination and they have a current and legitimate interest to file a lawsuit. However, no tenant's interest outweighs the property owner's effort to make the building earthquake-resistant and resilient to risks. Besides, since the Law and the Regulation designate property owners or their legal representatives as the authorized persons for objection, there are also opinions suggesting that individuals with the capacity for a action for annulment should likewise be only property owners or their legal representatives by analogy. Council of State decisions maintain that tenants do not have the legal capacity to file a action for annulment against the risky building determination decision. However, the Council of State and Regional Administrative Courts make a distinction when examining the legal capacity, distinguishing between lawsuits to be filed against the risky building determination and lawsuits to be filed against eviction and demolition decisions. Contrary to the opinion of the Council of State in lawsuits filed against risky building determination, it examines the legal capacity in terms of the specific case for annulment action against eviction and demolition decisions. In fact, in cases where lawsuits are filed for the simultaneous annulment of these two administrative acts, it separates its examinations into two. Council of State decides on the incompetence for the annulment request against the risky building determination, while it examines the annulment request against eviction and demolition decisions by entering into the substance of the matter.

You can take a look at the following decisions regarding the subject;

14th Chamber of Counsil of State, with number 2014/11276 & 2015/3850 on 13.05.2015 and 2016/8597 & 2017/438 on 01.02.2017

6th Chamber of Regional Administrative Courts, with number 2020/1062 & 2020/934 on 30.09.2020

2. Evacuation and Demolition due to Risky Building Determination, and Tenant’s Priority Right

Article 350, paragraph 2 of the Turkish Code of Obligations (“TBK”) No. 6098 regulates evacuation due to "Reconstruction and Redevelop" and Article 355 titled "Re-lease Prohibition" is subject to the provision of “Immovable properties evacuated for reconstruction and Redevelop purposes may not be rented to anyone else in its former condition unless three years have passed without just cause. The former lessee has the right of priority to lease the immovable immovables that have been reconstructed and redeveloped with the new condition and new rental price. This right must be exercised within one month following the written notification by the lessor; unless this priority right is terminated, the immovable cannot be leased to another person before three years have passed.”

The applicability of the provisions of Law No. 6098, which regulate the prohibition of re-leasing and the tenant's priority right, to buildings evacuated and demolished under Law No. 6306 is a subject of debate. Although there is no clear legal provision on this matter, the prevailing opinion in doctrine is that tenants also have a priority right in case demolitions arising from Law No. 6306. One opinion argues that, for the application of the priority right, the tenancy agreement must be annotated on the land registry. Contrary to these opinion, there are opinions asserting that, due to the absence of a specific regulation or reference in the law and the fact that the Law is a special regulation on this matter, the priority right and prohibition of re-leasing cannot be applied to properties that are evacuated and demolished under Law No. 6306.

You can take a look at the following decisions regarding the subject;

3rd Civil Chamber of The Court of Cassation with number 2017/4122 & 2019/282 on 17.01.2019

RESULT:

1. Against the determination of a risky building, only property owners and their legal representatives have the authority to object, and tenants do not have the right to object to the determination of a risky building.

2. Even though there is no explicit regulation in the law, it can be argued, both in line with Council of State decisions and by comparing authorized objectors, that only property owners and their legal representatives have the legal capacity to file a action for annulment against the determination of a risky building, and tenants do not have the legal capacity to file a annulment action. In lawsuits filed for the annulment of eviction and demolition decisions, the capacity to sue is evaluated based on the specific circumstances of the case.

3. In lawsuits filed for the annulment of eviction and demolition decisions, the capacity to sue is evaluated based on the circumstances of the concrete case.

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