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Constitutional Court issues significant decision on violation of the right to property

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Real Estate

Recent development

The Constitutional Court decision on the violation of the right to property numbered 2018/2739 was published in the Official Gazette, dated 8 February 2022. The Constitutional Court ruled that the rejection of the full remedy lawsuit, initiated with regards to privately registered lands remaining within the shore-edge line, would constitute a violation of the right to property.

Background of the decision in question

Parts of the properties located in the Ayvalık district of the Balıkesir province, which were granted a construction permit in 1973, have remained within the shore-edge line by the Ministry of Environment and Urbanization in 1977. The lawsuit requesting the cancellation of the administrative decision regarding the determination of the shore-edge line was rejected, and the shore-edge line was finalized in 1983.

Since the real properties were within the shore-edge line, set forth in the 1/5.000 scaled master plan and the 1/1.000 scaled implementary development plan, the respective municipality stated that no construction is allowed on these properties. In addition, the applicants’ claim for the market prices to be paid for the properties was rejected, since there were no provisions related to the properties’ expropriation.

The applicants’ claim for damages on the grounds of legal confiscation was accepted by the first instance court. However, the Izmir Regional Administrative Court has reversed this claim on the grounds that the legal confiscation conditions have not been met, since the limiting conditions for the properties arose from the Constitution and the Shore Law.

Following this, the applicants applied to the Constitutional Court for the rejection of their full remedy lawsuits on the legal confiscation and for not being given a construction permit for their privately registered properties, which were formerly granted a construction permit and that later remained within the shore-edge line.

What does the decision say?

The Constitutional Court stated that these properties were under a dominion in accordance with Article 35 of the Constitution, as the properties remaining within the shore-edge line were registered in the applicants’ names. The Constitutional Court also drew attention to the fact that the registration records were not cancelled and the properties were still registered on behalf of the applicants, even though the applicants claimed to do so because the properties remained within the shore-edge line. The Constitutional Court also emphasized that the applicants have been virtually deprived of their properties since the finalization of the shore-edge line in 1983.

In its review, the Constitutional Court underlined that the administration is responsible for regulating the common use of the shores, facilitating the necessary decisions and precautions to benefit from the shores, while also being responsible for not putting an extreme and disproportionate burden on the property owners when taking these precautions. The Constitutional Court stated that a fair balance between protecting the applicants’ right to property and the public welfare in determining the shore-edge line could only be achieved by paying the properties’ worth.

The Constitutional Court ruled that the applicants’ right to property was violated, as (i) the administration did not fulfill its responsibility to pay compensation to the applicants; (ii) the administration acted passively by not attempting to cancel the registrations; (iii) a condition to cancel the registration was sought for, initiating a full remedy claim without taking into account the practical situation, which impossibly frustrates the applicants’ practical or legal disposal of their properties; and (iv) an extreme burden is put on the applicants personally.

Additionally, as the first instance courts also could not provide a remedy for the violation caused by the administration’s actions, the Constitutional Court pointed out that the violation also originated from the court decisions.

Conclusion

In its decision, the Constitutional Court provided guidance regarding the scope of the right to property and the limitations of the administration’s interference with the right to property, while drawing attention to the court and administration’s responsibility to prevent the violation of the right to property.