A superficies is a right of easement in real estate law that allows a person or organization to build a structure on land owned by someone else or to use an existing structure under certain conditions. This right is established by an agreement between the real estate owner and the superficies holder for a certain period of time. The superficies are regulated in Articles 726, 826 and 836 of the Turkish Civil Code and are defined as one of the easements that can be used on a real estate. While the superficies protect the property rights of the land owner, it also grants the superficies holder the right to own the structure he/she has independently built on the land. This is an important legal regulation that can be used especially in commercial and economic projects. The superficies are not limited to the use of the land alone; it also ensures that the ownership of the constructed structure belongs to the superficies holder.
1. Historical Development and Origins of the Right to Superficies
The origin of the superficies dates back to Roman law. During the Roman period, landowners maintained certain rights over their own land, while regulations were made that granted ownership rights to third parties for structures built on these lands. This was advantageous, especially for those who wanted to invest in agricultural land but did not purchase the land. The superficies are a structured version of this traditional practice in modern legal systems. Over time, the importance of these rights has increased in line with economic needs in the real estate market. In Turkey, the superficies, which began to be used especially in commercial projects from the mid-20th century onwards, have become a frequently preferred practice by both individuals and public institutions.
2. What are the differences between the Right of Superficies and other easements?
Easement rights are arrangements whereby an immovable property owner grants another person or organization the right to use their immovable property for a specific purpose. Unlike other easements, the superficies have the feature of being independent and permanent. For example, while other easements such as right of way or resource rights grant the immovable property owner a specific use, this right generally does not include an independent property right. The distinguishing feature of the superficies from these other easements is that it allows the owner to independently transfer the ownership of the structure they have constructed. At the same time, the superficies can be recorded in the land registry as an independent immovable property, which provides the owner with security of ownership.
3. Characteristics of the Right of Superficies: Independent and Permanent Right
One of the most important features of the superficies is that it is an independent and permanent right. This situation grants the superficies owner the right to use and own a structure in the long term without having the ownership of the land. According to the Turkish Civil Code, the superficies are considered as “permanent rights” when they are established for at least 30 years. However, the superficies are established for a certain period of time and can be renewed when they expire. The feature of being independent grants the superficies owner the freedom to transfer or bequeath the structure they have constructed or the rights arising from this structure. This situation makes the superficies more preferred, especially in commercial projects.
4. Duration of Right of Existence: Maximum Duration, Renewal and Expiration
The term of the right of construction is determined as a maximum of 100 years in Turkey. This term is determined by mutual agreement of the parties and grants the right holder the right to construct or use a structure on the land for the specified period. When the term expires, the parties may re-determine the term with a new contract, if they wish, without harming the property rights of the right holder. When at least three-quarters of the term of the right of construction contract is completed before the term expires, the right holder may extend the term again for a maximum of 100 years by making a new contract. This situation provides the right holder with the opportunity to protect the term of use of the structure on the land and continue to own it.
5. Contract Terms and Official Procedure for Right of Construction
In order for the right of superficies to be established, an official contract must be made between the parties. This contract must be signed in the presence of a notary at the land registry offices where the real estate is located. This agreement between the parties is legally protected by being registered in the land registry. In terms of official procedure, a right of superficies that is not registered in the land registry is not considered legally valid. This situation does not provide the rightful owner with property rights and legal security. Therefore, there is a requirement for registration in the land registry in contracts to be made for the right of superficies.
6. Registration of the Right to Superficies in the Land Registry and Its Importance
In order for the superficies to be officially accepted and legally protected, it must be registered in the land registry. Registration in the land registry secures the superficies owner’s ownership of the structure they have constructed and ensures that the right of ownership is protected in the event of any legal dispute. Superficies that are not registered in the land registry do not have legal validity and do not provide any legal security to the right holder. Therefore, agreements between the superficies owner and the real estate owner must be registered in the land registry. Registration in the land registry not only increases the trust between the parties, but also ensures that this right can be asserted against third parties. Thus, the property rights of the superficies owner are provided with extensive legal protection. Registration in the land registry is also important in terms of clearly stating the superficies established on the real estate and preventing legal problems that may arise in the future.
7. Rights and Obligations between the Owner of the Right to Use and the Land Owner
The rights and obligations of the superficies and the landowner are based on the contract between the parties. The superficies must comply with the boundaries and conditions determined in agreement with the landowner while constructing the structure. However, the tax and maintenance expenses arising from the use of the structure belong to the superficies owner. The landowner, on the other hand, does not have the right to interfere with the ownership of the structure constructed by the superficies owner. This relationship grants the superficies owner freedoms regarding ownership, while also ensuring the landowner that his land is protected and his rights are respected. During the superficies period, the landowner does not interfere with the activities of the superficies owner, but may have the right to own the structure after the superficies end.
8. Transfer of Rights of Superficies and Inheritance
The superficies can be transferred by the right holder to another person or can be inherited. This is one of the important reasons why the superficies are preferred in commercial projects. The transferability of the superficies provides an economic advantage to the right holder and increases the value of the investment to be made on the real estate. In the event of the death of the superficies holder, the right passes to the heirs and the heirs take the place of the right holder for the remaining period of the superficies. In the transfer process, factors such as the records made in the land registry and the duration of the superficies are taken into consideration. This situation allows the superficies holder to find a wider area of action in long-term projects and to secure their commercial investments.
9. Advantages and Disadvantages of Right of Way
There are some advantages to the superficies. First, the right holder has the right to build a structure for a certain period of time without purchasing the land. This provides cost savings, especially for large projects. At the same time, the land owner can earn income from his land while maintaining his right of ownership. This provides economic benefits to both the land owner and the superficies holder. On the other hand, there are also disadvantages to the superficies. The time limitation may create some restrictions for investors and may cause uncertainties in long-term planning. In addition, when the superficies expire, the status of the structure and the agreements between the owner and the right holder may lead to legal disputes. If the structure is transferred to the land owner at the end of the superficies period, this may cause losses to the investor.
10. Economic and Commercial Aspects of the Right of Construction
The right of superficies is often preferred, especially in large projects and commercial areas. For example, large structures such as shopping malls, hotels, factories and production facilities can be established by establishing a right of superficies. In such projects, while the right of superficies owners are saved from the high costs that would arise from purchasing the land, the landowners evaluate their land economically. The right of superficies provides financial advantages for investors. While the investment made in the land creates special financing resources for the project, it also provides a continuous income flow to the landowner. The transferability of the right of superficies increases the commercial attractiveness of the projects and offers more options for investors.
11. Constructions Without Establishing Rights of Construction and Unfair Construction
If a person builds a structure on someone else’s land without a right of construction, this structure is considered “unfair construction”. In the case of unfair construction, the landowner has the right to demand the removal of the structure or compensation. In order to prevent unfair construction, a formal right of construction agreement must be made between the parties and this agreement must be registered in the land registry. In the case of unfair construction, the real estate owner may demand the prevention of unjust encroachment and may make demands such as demolishing the structure or restoring the land to its former state. Such situations may increase legal disputes and disagreements, so both parties must be careful about their legal obligations.
12. Termination of Right of Use and Cancellation Conditions
Termination of the right of superficies may be possible due to the expiration of the contract period, disagreements between the parties or under certain conditions. Upon the expiration of the contract period, the right of superficies automatically ends and the structure may be transferred to the landowner. When the right of superficies ends, the status of the structure may lead to legal disputes if there is no agreement between the parties. The right of superficies may also be cancelled by agreement between the parties, but this is subject to the consent of both parties. In the event of cancellation of the right of superficies, the records in the land registry are updated and the property rights of the rightholder are terminated.
13. Condition of the Building in Case of Termination of the Right of Construction
In the event of termination or cancellation of the superficies, the condition of the structure on the land is of critical importance. When the superficies expire due to termination or expiration, the structure must be evaluated according to the agreements determined between the landowner and the rightful owner. According to the Turkish Civil Code, when the superficies expire, the landowner has the right to own the structure. However, during this process, the rightful owner may request compensation for the structure. Such situations are especially important for commercial projects. Alternatives such as transferring the structure to a new buyer or removing it completely require the parties to negotiate and reach an agreement. Otherwise, the legal process comes into play and the status of the structure is determined by a court decision.
14. Right of Way Cases and Judicial Process
Right of construction lawsuits may arise for reasons such as termination of right of construction, unjust encroachment and the condition of the structure. In such cases, disputes between the rightful owner and the landowner may be brought to court. In right of construction lawsuits, the judicial process is based on the terms of the contract between the rightful owner and the owner, the land registry records and legal evidence. Lawsuits can generally be filed by the landowner or the rightful owner. The court makes a decision based on the existing contract, the land registry and legal regulations. The litigation process may take a long time and increase the financial liabilities of the parties in cases where the parties do not reach an agreement. Therefore, it is important to prepare right of construction contracts in detail and clearly in order to prevent disputes.
15. Common Problems Encountered in Right of Construction Cases
One of the most common problems in superficies cases arises from disagreements between the parties. Issues such as the condition of the structure after the superficies expire, the rights holder’s claim for compensation or the demolition of the structure often lead to legal disputes. Another common problem is that the superficies have not been registered in the land registry. In this case, the rights holder cannot protect their property rights because they do not have any legal security. In order to prevent such problems, it is important that superficies contracts are prepared in a detailed, transparent manner and clearly state the obligations of all parties. In addition, it is necessary to complete the registration procedures in the land registry in full in order to protect the rights of the superficies holder.
16. Right of Way and Taxation: Tax Liabilities
The right of superficies also brings with it various tax liabilities. The right of superficies owner has liabilities such as property taxes arising from the construction of the building. In addition, if the right of superficies owner rents out the building, he/she must pay income tax on the income earned. Tax liabilities are among the important factors affecting the economic return of the right of superficies. The landowner, on the other hand, is responsible for the taxes arising from the land ownership. This is an issue that both parties should consider when making financial planning. Getting support from an expert advisor on tax liabilities can help both parties optimize their tax advantages and liabilities.
17. Examples of Supreme Court Decisions Regarding Right of Supervision
There are various Court of Cassation decisions in Turkey regarding superficies. These decisions offer solutions to problems encountered in practice and show how courts approach superficies cases. For example, a Court of Cassation decision states that the agreements between the parties regarding the status of the structure will be taken into account when the superficies period expires. The Court of Cassation, in particular, considers superficies that are not registered in the land registry as invalid and makes land registry registration mandatory in order to prevent rights holders from suffering. Such decisions set precedents in superficies practices and guide the resolution of disputes that arise between the parties. Considering the Court of Cassation decisions provides an important resource in protecting the rights of the parties in superficies cases.
18. Use of Right of Construction by Municipalities and Public Institutions
The right of superficies is also frequently used by municipalities and public institutions. Especially in large infrastructure projects, social housing constructions and public service projects, the right of superficies is established, enabling the construction of structures on land owned by the state. This practice supports the effective and efficient use of public lands, while also allowing the state to protect its property rights. Municipalities can establish the right of superficies in these areas by cooperating with the private sector and make various arrangements to ensure the economic sustainability of the projects. The right of superficies projects implemented by public institutions are generally established with long-term contracts and consider social benefits.
19. Legal and Economic Evaluation
The right of superficies is an application that is gaining more and more importance in the real estate market in Turkey and the world. Increasing population, urban transformation projects and infrastructure needs are making the use of the right of superficies widespread. The development of the legal framework of the right of superficies determines the rights and obligations of the parties more clearly and ensures the security of real estate projects. From an economic perspective, it is expected that the right of superficies will attract more investors and create an economic opportunity for landowners. In this context, the development of the right of superficies with regulations that allow for more flexible and long-term projects will be to the advantage of both landowners and right of superficies.
20. The Impact of Right of Superficies on Future Commercial and Residential Projects
The right of superficies will have a wide range of uses in terms of housing and commercial projects in the future. Especially in big cities, the high cost of land may direct investors and construction companies to the right of superficies. In this way, while the property right remains with the landowner, investors can continue their economic activities by building on the land. This situation provides advantages especially in urban transformation projects and mass housing construction. At the same time, it is expected that the use of the right of superficies will increase in commercial projects such as business centers, shopping malls and hotels. The economic advantage of the right of superficies increases interest in such projects and encourages the development of more commercial areas with the right of superficies in the future.
21. The Importance of Legal Consultancy and Expert Opinion Regarding Rights of Construction
Getting help from an expert legal advisor for complex legal transactions such as superficies is of great importance for both landowners and superficies. Mistakes made during processes such as the establishment, registration, transfer and termination of superficies may lead to legal disputes between the parties. Therefore, getting legal advice and planning the process carefully before establishing superficies is essential in order to minimize potential risks. Legal advisors protect the rights of the parties while ensuring that the contract is prepared within the legal framework. In addition, getting expert support on issues such as the registration of the superficies in the land registry, the regulation of tax liabilities and support in the judicial process plays an important role in protecting the rights of both parties.
22. Innovative Uses of Rights of Construction and Alternative Investment Models
Today, the right of superficies has also begun to be used in innovative projects in addition to traditional real estate investments. For example, in projects such as power plants, wind and solar energy facilities, long-term investments can be made by establishing the right of superficies without transferring land ownership. Such projects provide a continuous income to the landowner and pave the way for environmentally sensitive energy investments. In addition, the short-term transfer of buildings established with the right of superficies creates opportunities for different investment models. In the tourism sector, the right of superficies can be used for holiday villages or seasonal rental structures. The flexibility provided by the right of superficies for different investment models will allow this type of right to be used in a wider area in the future.
23. The Role of Right of Way in Green Projects
The right of way can also play an important role in environmental projects. Especially in projects developed with the aim of sustainability and environmental protection, it becomes possible to develop green areas while preserving the ownership of the land. Energy projects established with the right of way offer opportunities in terms of protecting natural resources and building environmentally friendly structures. In addition, by establishing the right of way in environmentally sensitive projects by municipalities or public institutions, the protection of green areas and the sustainability of ecological projects can be ensured. In such projects, it is possible to invest in environmental projects without transferring the ownership of the land. Increasing the use of the right of way in environmentally friendly projects can increase social and ecological benefits.
24. The Place of the Right of Superficies in Real Estate Law
The right of superficies has an important place in real estate law today. This right, which provides the right to build a structure on someone else's land or to protect an existing structure, provides significant advantages for both landowners and investors. The right of superficies has a wide range of uses, from commercial projects to social projects, from energy investments to housing projects. Having a solid legal infrastructure for the right of superficies prevents disputes between parties and allows investors to take safer steps in long-term projects. In this context, proper management of the right of superficies and its implementation by receiving legal consultancy will increase the sustainability and reliability of real estate projects. The right of superficies will maintain its place as a frequently preferred easement right in the future thanks to the flexibility and economic benefits it offers in commercial and environmental projects. The right of superficies stands out as an important tool in the real estate sector with the advantages it provides for both investors and landowners and its efficient use opportunities.