Right of way is a type of easement between immovable properties and is a frequently encountered issue in real estate matters. A passage easement may be more straightforward compared to other easements; But there are many issues that need to be known in depth about this right.
In this article, we will share information about what a passage easement is, what conditions it is subject to, and what right-of-way cases mean. To unravel the complexities of this topic, it is useful to have a general perspective. Therefore, we recommend that you read the information carefully and take a look. In the light of this information, you will have a more beneficial decision-making process in your potential cases with a lawyer who specializes in real estate cases.
What is the Definition of Right of Way?
The right of way is a right that the owner of a property who does not have a direct connection to the main road applies to request a passage over his neighbor's land. In order to obtain this right, the court decides on the most practical and appropriate means of passage.
While making this evaluation, a reconnaissance process is carried out for a detailed examination and support can be received from survey engineers or cadastral experts in this process. The right of way is a right considered within property rights.
Article 747 and the following articles of the Turkish Civil Code contain legal regulations regarding the right of way. In addition, the precedents established by the Supreme Court in right-of-way cases should also be taken into account.
It is worth noting that real estate-related cases are complex and it is necessary to adopt a careful and conscious approach to prevent such cases from taking longer than necessary. Therefore, the most rational step would be to consult an expert lawyer at the beginning of such a process.
What are the Requirements for the Right of Way?
According to the Turkish Civil Code, there are some basic conditions that must be met in order for the right of way to be based on a solid foundation. If the following conditions are met, it will be possible for the person requesting the right of way to exercise this right. These conditions required for the establishment of a passage easement are as follows:
1. The property owner requesting passage should not have a suitable passageway through which he can communicate via a public road.
2. Considering the location of the property and potential damages, there should be no request for passage through another neighbor.
3. It is essential that the requested passage is directed to a real estate owner where it can be carried out with the least inconvenience. This may mean restricting property rights.
4. The equalization fee must be paid. If an agreement has been made between the parties, this price is subject to mutual agreement. However, if an agreement cannot be reached, the court decides how much this fee will be.
If the conditions listed above are met, a right of way request can be made. However, even in the presence of these conditions, if the parties cannot reach an agreement, it will be necessary to seek a solution through legal means.
Passage Easement Request and Process
As mentioned before, the owner of a property that is not connected to the main road may request a road through neighboring properties. For such a passage easement request, the owner must pay a determined fee.
Property owners who do not have direct access to the main road are provided with the opportunity to obtain the right of way for a certain fee. This is a situation where ownership is subject to a certain limitation. Because, within the legal conditions, such an innovative right is granted to the real estate owner. While contractual easements are subject to the agreement of the parties, in this case the source is legal regulations.
Passage easement is a right that can be claimed through litigation within the scope of easement rights and can also be based on the mutual agreement of the parties. In other words, a contractual passage easement can be created for a price determined between the parties and recorded in the land registry. If the parties cannot reach an agreement, they can initiate litigation.
With the start of the litigation process, the court appoints an expert. The expert examines the passage needs of the property and prepares a detailed report. In this process, the expert panel; It consists of experts in their fields such as mapping, cadastre, civil and agricultural engineers.
The court may also take the statements of witnesses during discovery if deemed necessary. In the light of all these evaluations, the most appropriate right of way is established, taking into account the interests of both the plaintiff and the defendant.
Filing Process and Details of the Right of Way Case
1. First Step: Interviewing the Neighboring Owner
The person claiming the right of way must first convey his claim to the neighboring owner. At this stage, if the parties agree, this right can be established by making a contract through a notary, without resorting to litigation.
2. Petition
If the neighboring owner does not want to give up the right of way, a lawsuit can be filed. In this case, a petition is prepared and submitted to the relevant court. In the petition, the reasons for the right-of-way request, evidence, if any, and the nature of the request should be stated in detail.
3. Responsible and Competent Court
The right of way lawsuit must be filed in the civil court of first instance where the real estate is located.
4. Notification Tracking
Especially if the neighboring property has shares, all owners must be notified of the lawsuit. In this process, care should be taken to ensure that notifications are made accurately and completely.
5. Evaluation of the Case
During the court process, it is evaluated whether the request for the right of way is based on justified grounds and how much interference and damage the request will cause on the neighboring property. In the light of these evaluations, it is decided whether the requested right of way will be established or not.
6. Parties to the Litigation
According to the Turkish Civil Code, the owner who requests the passage easement is the plaintiff in the litigation process. The neighboring owner to whom the right of way request is made is the defendant. If there is more than one owner in the neighboring property (shared title deed situation), all owners take part in the lawsuit as defendants.
Things to Do and Points to Pay Attention to in Passage Easement Case
1. First of all, the way to reach an agreement
The passage easement request must first be presented to the neighboring owner in an amicable manner. If an agreement can be reached between the parties, a passage easement agreement can be prepared through a notary and registered in the land registry.
2. Responsible and Competent Court
Passage easement cases are within the jurisdiction of the civil courts of first instance. The place where the lawsuit will be filed is the court where the immovable property for which the passage easement is requested is located.
3. Petition
Details such as why the passage easement is required, under what conditions it is requested, the negotiations with the neighboring owner and their results should be clearly stated in the petition.
4. Presentation of Evidence
Evidence as to why the right of way is needed (photographs, sketches, expert reports, etc.) must be submitted to the court along with the petition.
5. In case of shared title deed
If the neighbor has a shared title to the property, the lawsuit must be notified to all owners. For this reason, the names and address information of all owners must be included in the petition.
6. Follow-up of the Case
During the litigation process, it is important to closely follow all hearing dates, expert examinations, and witness statements and act in accordance with these dates.
Points to Consider:
- When requesting the right of way, it is important that the request causes minimal interference with the neighboring property. Making an excessive request may result in the case being dismissed.
- In case of disagreement, it would be useful for the parties to specify issues such as how long the right of way request will be valid, terms of use, maintenance and repair, etc. during the litigation process.
- Since the litigation process can be long and costly, alternative dispute resolution methods (mediation, etc.) should also be considered beforehand.
What Should Be Included in the Petition?
The passage easement litigation process requires detailed and meticulous preparation. Therefore, carrying out the process with legal advice will help the requesting party protect its rights more effectively. In order to prevent the parties from suffering during the passage easement request process, such petitions must be written in the presence of an expert lawyer. Because mistakes made in this regard may cause the process to take longer than necessary or cause the passage easement not to be realized.
Generally, in a lawsuit petition;
(…) To the Civil Court of First Instance
Plaintiff / Attorney: Name Surname, Date
Defendant: Information should be given about who the defendant party will be in the right of way case. The owners of the real estate for which the right of way is requested must be stated in the petition as defendants. If the real estate in question belongs to more than one person (shared title deed) and even if a certain part of the real estate is allocated for the use of a certain person, all owners of the real estate must be included as defendants in this case. In summary, even if the use of a real estate is reserved for a certain owner, all owners have legal responsibility in shared title deed. For this reason, when a right of way is requested, all owners will be included as defendants in this case. This means that all owners of the real estate will be affected by the court decision on this issue.
The case: Referring to Article 747 of the Turkish Civil Code (TMK), it states that the request for the establishment of a passage easement is based on this article.
Article 747 of the Turkish Civil Code regulates that in cases where a property needs a neighboring property to access a public road, the owner of that property may request the establishment of a right of way to the neighboring property. This article is the basic provision regulating the passage easement that is mandatory for the immovable property to open to a public road.
For this reason, if a real estate owner needs a neighboring property to access a public road and wants to file a lawsuit based on Article 747 of the Turkish Civil Code, he must reference this article in his petition. This reference shows the legal basis of the case and that the request for passage easement is the exercise of a legal right.
Descriptions;
This section summarizes what kind of content should be created under the "Explanations" heading of the petition. In a lawsuit petition, the "explanations" section usually includes information, allegations and grounds on why the lawsuit was filed. In the passage easement case, this information is as follows:
1. Title Deed Information
First of all, it is necessary to determine exactly which real estate is the subject of the case. For this reason, information regarding the title deed records of the real estate (such as province, district, neighborhood, section number, island, parcel and independent section number) should be stated in this section.
2. Victimization
In this section, the plaintiff, that is, the person requesting the right of way, must clearly state the reason for making this request and the grievance he/she has experienced.
3. Current Gate Status
If the property currently has a passage, but this passage is insufficient, the reasons for this inadequacy should be stated.
4. Immovable Property That Will Not Be Damaged
The reasons why the property for which a passage is requested is the property that will be least damaged due to this passage must be clearly stated.
5. Negotiations Between the Parties:
Details of previous negotiations, agreements or disagreements made by the parties regarding the passage easement should be listed in this section. This information is important in terms of proving the previous communications between the parties during the litigation process and that this lawsuit was filed compulsorily.
This part of the lawsuit petition reveals in detail the cause of the lawsuit, its bases and the reasons that form the basis of the request. For this reason, writing this section clearly, clearly and completely is of great importance for the positive outcome of the case.
Attached List:
1. Copy of the title deed of the real estate in question
2. Correspondence containing the passage easement request (if any)
3. Photographs showing that the property has no access to the road or the existing exit is inadequate
3. Witness Evidence: Names and addresses of witnesses who can provide information about the subject.
4. Expert Examination: If the court needs an expert regarding the passage easement, an expert examination is requested.
5. Other Evidence: All correspondence, documents, agreements, etc. related to the subject.
For the reasons explained; It should be requested that it be decided to establish the easement of passage required to access the road from my real estate, that the necessary procedures be carried out to register this easement in the land registry, and that all litigation expenses and attorney fees arising from the opening of the case be charged to the defendant.
Important; This petition setup is only an example and aims to provide general information. Each concrete case has its own conditions and a petition must be prepared according to these conditions. It is recommended that people who will request the right of passage prepare a petition with the support of an expert lawyer.
Frequently Encountered Right of Way Lawsuit Questions
We focused on the legal framework we stated regarding the right of way, the court's approach to this issue and how it works in practice. However, we answer some frequently encountered and important questions in this field as follows:
1. What Does Right of Way Litigation Mean?
It is a legal process initiated to meet the transportation needs for real estate that does not have a direct connection to main roads, with a certain financial provision.
2. Against whom can a passage easement lawsuit be initiated?
This lawsuit is initiated against the owner or owners of the neighboring property. If the real estate has shareholders, it includes all shareholders, regardless of who controls which part of the land.
3. In which court can a right of way lawsuit be filed?
Such a lawsuit is filed in the relevant Civil Court of First Instance where the real estate for which the right of way is requested is located.
4. Who Can Initiate a Right of Way Case?
When a residence or workplace does not have a direct main road connection and there is a loss of rights due to this situation, the owners of this real estate can initiate this type of lawsuit.
5. How is a Price Determined in a Passage Easement Case?
If a passage easement has been created by making a separate agreement between the parties, this agreement between the parties determines the price. However, if it is a matter of establishing a passage easement through the court, the court judge determines the price based on an expert report. In this process, it is of great importance that the expert report is detailed and accurate.
Important Warnings and Reminders
We discussed in depth what the right of way is, how it was established, and tried to answer frequently asked questions regarding this subject.
The information we have presented is based on the provisions determined by law and in parallel with daily legal practices. However, each legal issue may have unique characteristics. Therefore, it is essential to examine the legal situation in detail rather than being satisfied with general information.
Establishing a passage easement is a technical process that includes many stages and points to consider. In this complex process, it is important to cooperate with expert real estate lawyers in order to achieve accurate and effective results. Otherwise, there is a risk of encountering unexpected and undesirable results due to inadequate or incomplete procedures.