According to Article 35 of the Constitution, the right to property includes the right of a person to benefit from something as he wishes, to dispose of it, to transfer it to someone else, to change the way of use and to use the development rights that can be obtained from the property. These rights can only be limited by law for the public good and their exercise cannot be contrary to the public interest. Nowadays, property rights can be violated on the grounds of public interest, and it is extremely important that this violation be compensated fairly and accepted by society.
In our country, in areas where public services such as schools, hospitals, places of worship and parks are located, determined by plan decisions, there are situations where the public cannot obtain these areas on time. For this reason, private property rights are restricted, but no benefit is provided to the public. With a decision made by the Supreme Court in 2010, it was ruled that the restrictions imposed by municipalities in such areas after five years should either be removed or compensated. Various implementation tools are used to find solutions to these problems, and one of them is expropriation. However, since expropriation requires a serious economic cost, new solutions need to be developed. In this context, a new implementation tool such as "Development Rights Transfer" (IHT) has emerged. This study aims to provide a method to partially or completely transfer the rights on private parcels to another area in order to obtain public access areas by using the Development Rights Transfer system.
What is Development Right?
Development right refers to the construction rights that can be built on a real estate (land or plot) within the framework and rules determined by the Zoning Law, relevant regulations and the zoning plan. These rights determine the use of the real estate and the nature of the structures to be built on it.
An important point is that development rights are not limited only to the development plan. In some cases, they have the right to build to a certain extent in areas where there is no zoning plan. For example, the Unplanned Areas Zoning Regulation contains rules regarding buildings to be built in areas without a zoning plan. According to these rules, more than one building can be built on a parcel, but each building must comply with certain conditions.
When Did Development Rights Transfer Appear?
The concept of development right transfer was introduced by Article 8/c of the Law on the Protection of Cultural and Natural Assets No. 2863 in order to limit the construction rights of immovable properties located in the protection areas of cultural and natural assets. This concept was later developed and updated with various legal amendments and new legal regulations. In addition, development right transfer regulations are included in projects such as the consolidation of risky urban areas.
What is Development Rights Transfer? What Does Real Estate Transfer Mean?
Development right transfer refers to the transfer of privately owned immovable properties intended for common use by the public to public use through an alternative method instead of expropriation. This method is considered an alternative to expropriation and generally aims to preserve and improve existing construction.
Although the concept of transfer has been included in different legal regulations, this method needs to be specifically defined and regulated in legal regulations such as the Zoning Law. The concept of development right transfer and the principles regarding its implementation should be clearly stated in the legal legislation.
In What Cases İs Development Right Transfer Made?
When development right transfer applications are examined, it is seen that this method has two different applications, mandatory or optional.
1. Mandatory Transfer: According to Article 18 of the Zoning Law No. 3194, in cases where zoning application cannot be carried out due to technical reasons and more than 40% of the parcel is acquired by the regulatory partnership share, precedent right transfer can be made to use this excess part in another zoning parcel.
2. Optional Transfer: In some cases, preservation of existing construction is allowed without making a decision for new construction in zoning plans. Property owners can use these rights if they wish, or they can give up construction by selling their certificates.
While the transfer of development rights is presented as an alternative for the protection and development of public spaces, it is carried out subject to the conditions and regulations specified in the legal legislation.
How to Transfer Development Rights?
Development right transfer is generally regulated by development plans. In this context, development rights on a parcel or group of parcels located in an area that is under development pressure and where construction is not desired are transferred to another area. This transfer process ensures that some or all of the existing development rights can be used in another area.
Two types of fields are important during this process. The first one is the parcels where the development rights are transferred to another area and these parcels are called "transportation plots". The other one is the areas where the development rights are transferred and these areas are called "development right transfer area".
What is the Development Rights Transfer Area?
The development right transfer area is the area where construction rights transferred from other parcels are collected. These areas are generally areas where there is no pressure for construction and at the same time there are no drawbacks to construction.
What is Transport Land?
Transfer land refers to parcels where construction rights are transferred to another area. These parcels are generally areas under construction pressure, and lower density construction is achieved by moving development rights from these areas.