Expropriation is the process of the state and public legal entities becoming entitled to privately owned immovable properties in cases where public interest requires it, within the framework of determined procedures and legislative provisions. This process operates according to the methods and procedures specified in the Expropriation Law. In the expropriation process, it is a legal requirement to first resort to the reconciliation method in order to ensure efficiency in terms of both time and cost. This method, which allows the parties to agree on the expropriation price without going to court, is called "consensus" and depends on certain procedures and conditions.
As a result of some important changes made in the Expropriation Law, reconciliation between the real estate owner and the administration has been determined as a prerequisite for filing an expropriation lawsuit for some special cases.
What is Expropriation?
Expropriation is the process of compulsory ownership transfer and establishment of easement rights by the State and Public Legal Entities, by paying the price in cash, on immovable properties and resources belonging to private individuals, considering the public interest, in line with legal procedures and decisions of authorized bodies.
The basic elements of the expropriation process are as follows:
1. Existence of public interest,
2. The decision has been taken by the competent body,
3. Carrying out expropriation in accordance with the procedures and principles specified in the law,
4. Payment of the expropriation fee in advance (Article 46 of the Constitution and Article 3 of Law No. 2942 specify in which cases the fee can be paid in installments),
5. The expropriated property is in private ownership,
6. Taking or restricting property without the consent of the owner.
How Does the Reconciliation Process Work in Expropriation?
The Expropriation Law obliges the administration to first resort to the purchasing method in the expropriation of immovable properties in order to carry out expropriation transactions quickly and effectively. The point that should be emphasized here is that the purchase method or reconciliation in expropriation is a procedure that is valid only for immovable properties included in the land registry records.
The purchasing method is basically based on the mutual agreement of the parties. In this context, in certain expropriation cases, the administration is obliged to first try to reach an agreement with the owner through the purchase method. If an agreement cannot be reached with the owner, the administration may apply to the court and request the price of the real estate to be determined and its registration in its name.
Reconciliation Method and Procedures in Expropriation
In accordance with Article 8 of the Expropriation Law No. 2942, when carrying out the expropriation process for immovable properties registered in the title deed, it is necessary to first apply the "purchase" method. In the expropriation of immovable properties registered in the land registry, if a lawsuit is filed directly requesting the determination and registration of the expropriation price without using the purchasing method called "conciliation", this lawsuit will be rejected due to the lack of a "suit condition".
The expropriation process begins with the administration's decision to expropriate a privately owned property in line with the public interest and needs. After this decision is taken, the land registry office where the real estate to be expropriated is registered is informed and an expropriation annotation is added to the land registry record.
After the expropriation decision is made, the administration establishes a valuation commission to determine the value of the real estate to be expropriated. This commission determines its value by collecting all information about the real estate. Valuation commissions can obtain the necessary information from public institutions and local real estate buying and selling offices. In addition, they are authorized to have reports prepared by expert persons or organizations for value determination.
Reconciliation, also known as the purchase transaction, must be achieved through negotiation over the price determined by the valuation commission. In order to carry out bargaining, sales and exchange transactions and reconciliation negotiations, the administration will establish a reconciliation commission within its own structure, in addition to the valuation commission.
Previously, it was a legal obligation for owners whose real estate was confiscated without expropriation due to changes in zoning plans to reach a compromise with the administration before filing a lawsuit. However, the Constitutional Court's decision 2016/181E., 2018/111K published in the Official Gazette No. 30736 dated 05.04.2019. With the decision no., the requirement for the owner to "first apply to the administration and apply for conciliation" in compensation cases based on legal seizure was abolished.
Compromise Offer to Owners in Expropriation
After establishing the previously mentioned commissions, the administration officially initiates the reconciliation process by contacting the owner. In practice, this process is called "invitation to compromise".
The administration will communicate with the owner through an official and registered letter. Official and registered notification will be made in accordance with the provisions of the Notification Law No. 7201 for cases for which there is no provision in the Expropriation Law, and in accordance with the Decision of the General Assembly of Civil Court of the Supreme Court of Appeals. The owner will have the right to file a lawsuit against this decision in the administrative court upon notification of the expropriation decision and the purchasing procedure, and this period will begin with the notification.
In the official registered letter, it will be proposed to purchase the immovable property to be expropriated through bargaining for its price or to exchange it for another immovable property belonging to the administration. "This notification of the administration will not include the estimated real estate value previously determined by the valuation commission.
Duration of the Reconciliation Process in Expropriation
The owner or his representative may request to sell or exchange (barter) the immovable property subject to expropriation through negotiation and agreement within fifteen days from the notification of the letter sent by the administration. After the owner's application is made, reconciliation negotiations begin.
As a result of compromise negotiations, an agreement may be reached on a price or exchange that will not exceed the estimated value determined by the valuation commission. In this case, a report containing the terms of the agreement is prepared and signed by both the commission members and the owner.
It is important to note that, according to the established decisions of the Supreme Court, the prices offered and accepted in the negotiation between the conciliation commission and the owner are not binding on the parties. That is, if the parties file a lawsuit, the court will not accept the prices stated in the settlement negotiations as a criterion when determining the value of the real estate. Similarly, it is not possible for the administration to file a registration lawsuit against the owner based on the agreement minutes, or for the owner to force the administration by filing a lawsuit demanding payment of the price.
The administration must make the price specified in the minutes ready for payment within 45 days from the signing of the reconciliation minutes and notify the owner or his authorized representative in writing of this situation. In this letter, the owner may be asked to transfer (waive) the title deed on behalf of the administration on the specified date. When the transfer is made by the owner or his authorized representative, the expropriation fee is also paid to them.
Results of Reaching a Consensus on Expropriation
The most important result of the parties reaching a compromise is that the relevant immovable property is deemed to have been acquired from the owner through expropriation, and no objection lawsuit can be filed against the expropriation process or price carried out in this way. For this reason, it would be beneficial for real estate owners to comprehensively research the value of the real estate.
Consequences of Failure to Reach a Consensus in Expropriation
In cases where an agreement cannot be reached between the administration and the owner or if the owner is not ready for the transfer in the land registry, if the immovable property cannot be acquired through purchase, action is taken in accordance with Article 10 of the Expropriation Law. In other words, when an agreement cannot be reached, the administration can apply to the Civil Court of First Instance where the real estate is located, requesting that the expropriation fee be determined by the court and the real estate be registered in the name of the administration.
As a result, if the parties reach an agreement as a result of compromise negotiations, an objection lawsuit cannot be filed against the expropriation process and its cost. However, if the parties cannot agree, the expropriation fee will be determined by the court and the immovable property will be registered in the name of the administration.