The Owner Of The Illegal Building Should Obtain A Permit Certificate And Wait For The Result Of The Criminal Case Related To The Illegal Building
General Assembly of Civil Chambers 2017/503 E. , 2017/1190 K.
“Case Law Text”
COURT :
Commercial Court
At the end of the judgement held due to the original, combined and counter “receivable” lawsuit between the parties; Kadıköy 3rd Commercial Court of First Instance accepted the original lawsuit over 1.735.262,82 TL, dismissed the counter lawsuit, and deemed the combined lawsuit, which was not pursued by the parties, as not filed, on 27.12.2011, 2005/421 E.-2011 Upon the request of the decision numbered /882 K. by the defendant-counterclaimant cooperative’s attorney, the 15th Civil Chamber of the Court of Cassation, with the decision dated 16.01.2014 and numbered 2013/4701 E. 2014/354 K;
“…The main lawsuit is about the determination of the unfairness of the termination made by the defendant co-operative and the decision to collect the balance of the work price; the counterclaim is for the collection of the overpayment made to the contractor company and the collection of the cost of incomplete and defective works and compensation, and the combined lawsuit filed by the contractor company is for the collection of the cost of excessive works performed outside the contract. The court’s decision on the acceptance of the main lawsuit by taking into account the amount increased with the amendment, the rejection of the counterclaim, and the decision that there is no need to establish a judgement on the merits of the combined lawsuit has been appealed by the defendant and the counterclaimant business owner cooperative.
Parties have executed ordinary written contracts dated 02.02.1994 titled “Housing Construction Contract” and dated 12.07.1997 titled “This is an additional contract to the housing construction contract dated 02.02.1994” and these contracts are in the nature of a work contract as defined in Article 355 of the Code of Obligations numbered 818.
İn the main lawsuit, the plaintiff contractor company stated that it fulfilled its performance in accordance with the provisions of the main and additional contracts, and that the defendant co-partnership terminated the contract unfairly after completing 95% of the constructions subject to the contract, and requested a decision to determine the unfairness and invalidity of the termination and to collect the remaining work price. In order for the contractor to be entitled to the work price, the contractor must construct the construction in accordance with the contract, plan and project, zoning legislation and technical rules, and deliver it to the owner.
In the concrete case; in the expert report dated 02.06.2008, the court stated that “the buildings subject to the lawsuit are illegal structures since they do not have architectural, static, installation, heating and heat insulation projects approved by the municipality and the construction licence issued and approved by the municipality”.
Pursuant to Article 21 of the Zoning Law No. 3194, a building licence is obligatory for all buildings, except for the exceptions listed in Article 26. The conditions required for the issuance of a licence are shown in Article 22 of the Zoning Law. Unless otherwise stipulated in the contract, the obligation to obtain a building licence belongs to the owner. Since it has not been agreed that the obligation to obtain the building licence belongs to the contractor in both the original and additional contracts between the parties, the obligation to obtain the building licence belongs to the owner cooperative in accordance with Article 30 of the Zoning Law No. 3194. Construction without a building licence, or even if a building licence is obtained, construction that is not in compliance with the building licence is defined as “illegal construction”.
According to the established practice and jurisprudence of our Chamber, the construction made in violation of the provisions of the Zoning Law No. 3194, which includes mandatory legal rules, does not have economic value unless it is legalised, since it is in the nature of “illegal construction”. Since it does not have economic value, the contractor cannot demand the price of the work and production of this nature. However; if the work is legalised, the contractor may claim the work price he deserves.
As such, first of all, since it is within the scope of the performance of the defendant owner cooperative, it is necessary to give sufficient time and authority to the owner cooperative in order to legalise the constructions and obtain the building licence; in case the cooperative does not obtain the building licence and legalise the constructions, for the same reason, it is necessary to give authority and appropriate time to the contractor company, and in case the constructions are not legalised despite the authority and appropriate time, it should be decided to dismiss the main lawsuit filed by the contractor, since the economic value of the constructions cannot be mentioned.
In the case of legalisation of the constructions; it is understood from the scope of the file that with the indictment of the Üsküdar Chief Public Prosecutor’s Office dated 11.09.2006, a public lawsuit was filed against many defendants, including the contractor company official and cooperative officials, for the crimes of embezzlement and misconduct in office in the file of Üsküdar 2nd High Criminal Court registered under the main number 2006/272 and this case is still pending.
Pursuant to Article 53 of the Code of Obligations No. 818, the material facts established in criminal proceedings bind the civil judge. In other words, it is clear that the material facts established in the criminal case shall be taken into consideration in the civil case.The finalised determination of the criminal court regarding the determination of the event in dispute, in other words, the existence of the event and the fact that it was committed by the defendant, constitutes a final judgement in the civil court on the same issue.
In that case, since the results of the pending criminal case will affect the civil case subject to appeal, the court should wait for the outcome of the case pending before the Üsküdar Heavy Criminal Court, and after the decision to be rendered in the criminal case is finalised, it is necessary to conduct an on-site discovery with a 3-person expert expert committee to be assigned to reveal the truth by evaluating the material facts and all the evidence collected in the criminal case, to obtain a report that is suitable for inspection and reasoned, and to determine the amount of the work price deserved by the contractor within the framework of the result to be formed.It was not correct to make a written judgement with incomplete examination without considering the explained issues, and the decision had to be reversed…”
At the end of the retrial, the Istanbul Anatolian 4th Commercial Court of First Instance (to which the file was transferred) resisted the previous decision.
DECISION OF THE GENERAL ASSEMBLY OF LAW
After it was examined by the General Assembly of Civil Chambers and it was understood that the decision of resistance was appealed in due time and it was decided to reject the request for hearing of the attorneys of the plaintiffs of the main and combined cases who did not appeal the decision in accordance with the second paragraph of Article 438 of the Code of Civil Procedure No. 1086, which should be applied as of the date of the decision of resistance, and after the papers in the file were read, the necessity was discussed:
The main and counterclaims and the combined cases are related to the claims for the collection of the receivables arising from the work contract.
The plaintiff’s attorney claimed that he delivered the construction on the land belonging to the defendant in accordance with the original and additional contracts concluded between his client and the defendant, that the independent sections were started to be used, but some of the price was not paid by the defendant, and the determination of the unfairness and invalidity of the termination made by the defendant, the balance of the progress payments 1. 744.650,73 TL receivables, without prejudice to the right to claim and sue for more, for the collection of 60.000,-TL receivable together with the accrued and to be accrued rediscount interest.
In the merged case (on the date of filing of the present case), the receivable for the additional works was subject to litigation.
With the amendment dated 28.10.2010, the plaintiff’s attorney increased the case value to 1.735.262,82 TL.
The defendant’s attorney stated that the plaintiff could not complete the construction within the committed period, that the building was not in compliance with the General Specifications for Public Works, that additional expenses had to be incurred in order to eliminate this problem, that the plaintiff did not fulfil its tax and other legal responsibilities, that a financial burden was imposed on the co-operative due to the plaintiff’s failure to fulfil its tax and other legal responsibilities, that the defendant’s officials and the former managers of the client co-operative actually overpaid around 1.300. 000,-TL
and the previous management was not discharged, criminal proceedings were initiated against the relevant persons, the contract was terminated upon the failure of the counter party to fulfil its performance at the end of the period given with the warning for the elimination of the deficiencies, the provisional and final acceptance and final calculation were not made, and that the commencement of the use of the independent sections does not mean delivery, and requested the dismissal of the lawsuit;
In the counterclaim, the plaintiff requested and sued for the collection of 10.000,-TL for the time being of the overpayment of 1.300.000,-TL made to the plaintiff.
The court, considering the productions made by the plaintiff and the payments made by the defendant, accepted the main lawsuit over 1.735.262,82 TL, dismissed the counterclaim, and since the combined lawsuit, which was not pursued by the parties, was removed from the proceedings (Article 150 of the CCP), the Special Chamber, upon the appeal of the defendant-counterclaimant’s attorney, reversed the decision on the grounds shown above, and decided not to examine the other appellate objections for now.
The court resisted the previous decision on the grounds that the plaintiff contractor was not obliged to obtain a licence, that it was undisputed that the plaintiff completed and delivered the work, thus fully fulfilled its contractual obligation, and that the result of the criminal proceedings after this stage would not affect the case at hand.
Decision was appealed by the defendant-counterclaimant’s attorney.
The dispute that came before the General Assembly of Civil Chambers by way of resistance; in terms of the concrete case, whether the obligation of the contractor or the owner of the work is the obligation to connect the building to the licence in accordance with the work contract, whether it is possible to eliminate this deficiency and whether the compensation claim can be linked to this, and whether the criminal proceedings against the co-operative managers and the plaintiff company official have an effect on the case at hand.
The plaintiff of the main and the joined file … Construction … Taah. Tic. Ltd. is the contractor, the defendant and counterclaimant …. Akören Housing Construction Co-operative is the land owner. The main contract dated 02.02.1994 and the additional works contract dated 12.07.1997 were concluded between the parties and the contractor undertook to construct a building on the land in return for the price.
A contract in which the contractor undertakes to create and deliver a work in return for a price that the owner of the land is obliged to pay is called a “work contract” (Eren, F.: Law of Obligations Special Provisions, 2.b., Ankara 2015, p.584; Selimoğlu, E.: Istısnâ -Eser- Sözleşmesi, Ankara 2010, p.1).
As can be understood from its definition, a contract of work is a contract that imposes obligations on both parties. The main obligation of the contractor arising from the contract is to create a work and deliver it to the owner (818 p. BK.art.355; 6098 p. TBK.art.470). The work created and delivered to the owner must be “free of defects”. The law does not provide a clear definition of defect. However, it has made a ranking regarding the severity of the defect. According to the Law, it distinguishes the work being “…defective to the extent that the owner cannot use it or cannot be forced to accept it in equity” from the work being “repairable if it does not require excessive expense” (818 p. BK.art.360/I-II; 6098 p. TCO.art.475/1-3).
According to the definition predominantly adopted in the doctrine; if the work does not have the qualities specified in the contract or if it lacks the qualities that should be present in the work according to the rule of honesty, it is accepted that the work is defective (Eren, p.634; Turanboy, A.: According to the Decisions of the Court of Cassation, the Contractor’s Liability for Defects and Defects in the Construction after Delivery, AÜHFD, C.XLI (1989-1990), S.1-4, p.157 et seq.; Canpolat, F.: The Rights of the Owner of the Work arising from the Contract of Exception against Defects, Ankara 2009, p.65).
In both doctrine and practice, defects are classified as material, legal, economic and aesthetic defects. Within this classification, it is useful to focus on “legal defect”. Legal defect is the existence of limits on the subject of performance that prevent the buyer from benefiting from or disposing of it, affecting the value of the goods or the expected benefit from it and generally arising from public law (Aral, F./Ayrancı, H.: Law of Obligations, Private Debt Relations, 10th ed., Ankara 2014, p.119; Kahveci, N.: Rescission of the Contract by the Consumer due to Defective Goods in the Sale of Movable Goods, Ankara 2014, p.9).
As a matter of fact, pursuant to Article 21 of the Zoning Law No. 3194, a building (construction) licence must be obtained for all buildings falling within the scope of the said Law. According to Article 22 of the Law, in order to obtain a building licence, a petition must be applied to the municipality or governorate offices by the building owners or their legal representatives; only the title deed (in exceptional cases, a document that can be substituted for a title deed), architectural project, static project, electrical and installation projects, drawings and calculations, and a survey or, if not available, a dimensioned sketch must be attached to the petition.
If the building is unlicensed or constructed in violation of the licence and its annexes and cannot be brought into compliance with the licence, the building must be demolished (Article 32 of the Zoning Law). In addition, administrative sanctions are also imposed on unlicensed buildings (Art. 42).
It should be noted immediately that the provisions of the Zoning Law are related to public order and are ex officio observed by the courts and the Court of Cassation.
When the provisions on defects in the work and the articles of the Zoning Law are evaluated together, it is concluded that even if an unlicensed building is physically (materially) complete, it will be deemed defective in law and the contractor may be held liable for defects.
On the other hand, in the face of the contractor’s obligation to create and deliver the work, the obligation imposed on the owner by the contract of work is to “pay the price” (818 p. BK.art.355; 6098 p. TBK.art.470).
Unless there is a right to later performance according to the conditions or characteristics of the contract, in contracts involving reciprocal performances, the party requesting the performance of the contract must first have performed or proposed the performance of its own obligation (818 p. Code of Obligations Art. 81; 6098 p. TCO Art. 97). In a contract of work, the contractor’s request for payment of the price is conditional upon the contractor’s delivery of the work in a defect-free condition or notification of his readiness to do so. The owner cannot be forced to take delivery of the defective work; in this case, the owner’s obligation to pay the price is not due and payable. The owner may refrain from payment until the defect is eliminated (Baygın, C.: The Fee in the Exception Contract According to Turkish Law and the Provisions to which it is Subject, Istanbul 1999, pp.193-194).
In terms of works contracts whose subject of performance is construction (building construction), the building must comply with the contract and its annexes, principles of science and art, approved project, licence and other zoning regulations; otherwise, it is concluded that the work is defective and in this case, the contractor cannot be entitled to the work price.
Unless otherwise agreed in the contract, the obligation to obtain a building licence belongs to the owner of the work (land); fulfilment of this obligation cannot be expected from the contractor. However, a competent contractor, who has the title of a prudent businessman, should not start and continue the construction without a licence and project. If the contractor has acted contrary to this principle, in other words, if he has completed the building without obtaining the licence and necessary permits, he cannot be entitled to the work price. In such a case, the contractor’s entitlement to the work price depends on the elimination of the project and licence deficiencies, if possible. Likewise, the owner of the work cannot demand the compensation for the deficiencies and defective works in a construction without a project and licence.
When the concrete case is considered;
In the reply letter of the Üsküdar Municipality Zoning Directorate, it was stated that there is no project for the immovable subject to the lawsuit; In the letter of the same unit dated 30.09.2014 and numbered 6215-6311, it was reported that there is no zoning parceling related to the immovable, therefore, no zoning application can be made and many building holiday notices have been issued about the construction.
Again, in the expert report dated 19.10.2004 prepared as a result of the determination made in the file numbered 2004/55 D. İş of Üsküdar 5th Civil Court of First Instance and in the report dated 02.06.2008 prepared by the experts consulted in the case file, it was stated that the buildings subject to the lawsuit do not have architectural, static, installation, heating and heat insulation projects approved by the municipality” and that the buildings subject to the lawsuit, which are unlicensed, are in the nature of “illegal construction”. The contractor does not claim that there is a project and building permit (construction licence).
When the principles explained above and the concrete case are evaluated together, in principle, it is undisputed that the contractor cannot claim the work price due to the construction that is not subject to a licence. However, considering the recent practice of the Court of Cassation that the decision to dismiss the case for this reason alone has caused the contractor to be victimised, the court should first ask the relevant administrations whether it is possible to make the construction without an approved project and building permit in accordance with the zoning legislation and determine with an additional report to be obtained from the expert;
If it is understood that it will not be possible to connect the building to the project and licence in any way after this research and examination is carried out, in such a case, considering that the building that needs to be demolished has no economic value, it has been adopted that the lawsuit regarding the manufacturing cost filed by the contractor should be dismissed. If it is understood that it is possible to legalise the building (since the obligation to obtain a building permit belongs to the owner), firstly, the owner should be given time to prepare the necessary projects and have the construction licensed, and if the contractor fails to fulfil this requirement, the contractor should be allowed to provide this requirement, and if the building is legalised, the contractor can claim the manufacturing cost, otherwise it should be accepted that the contractor cannot claim the cost.
As for the reversal and the decision of resisting on the issue of making the file related to the criminal proceedings a matter of waiting in case the constructions are legalised in terms of the counterclaim;
At this point, firstly, it is useful to focus on the effect of the criminal court decisions on the civil case, in other words, which decisions of the criminal court will bind the civil courts:
The effect of the decisions of the criminal court on the civil court is regulated in Article 74 of the Turkish Code of Obligations No. 6098 (818 p. BK.art.53) and the civil judge is independent in principle against the finalised decisions of the criminal court. This principle is based on the principle that the criminal rules stipulate the sanction of a prohibition in terms of public interest, whereas the civil rules, which cover the same dispute, stipulate the regulation of personal relations in the field of civil law and especially the conditions of compensation.
Article 74 of the 6098 p. Turkish Code of Obligations regulating the subject:
“The judge, while deciding on whether the injured party is at fault or not, and whether he has the power of discernment or not, is not bound by the provisions of the criminal law on liability, nor is he bound by the acquittal decision given by the criminal judge.
Likewise, the decision of the criminal judge regarding the evaluation of the fault and the determination of the damage does not bind the civil judge”.
In the face of this clear provision, there is no doubt that the acquittal decision rendered by the criminal court, the fault and its degree, the amount of damage, the power of appeal and the sufficiency of attribution, and the principles such as causation will not bind the civil judge.
It should be noted immediately that this independence of the civil judge described above is not unlimited. Both in the doctrine and in the established jurisprudence of the Court of Cassation, it is accepted that the civil judge shall be fully bound by the material facts determined by the criminal judge and especially by the issue of “illegality of the act”. In other words, the decision of the criminal court, which determines the material facts and the existence of prohibited acts, is conclusive evidence for the parties (HGK, 10.01.1975 dated 1971/T-406 E., 1975/1 K.; 23.01.1985 dated 1983/10-372 E, 1985/21 K.; 27.04.2011 dated 2011/17-50 E, 2011/231 K.; 03.04.2013 dated 2012/19-873 E, 2013/433 K.).
Civil procedure is a law of form. The filing of the lawsuit, raising objections, notification of witnesses and other evidence are subject to certain time conditions, as well as certain restrictions such as the inability to provide a second witness list, the prohibition of expanding the claim and defence, etc. have been introduced with the aim of concluding the proceedings expeditiously. As a result, the civil judge will seek the formal truth and the material truth will not be the primary objective.
On the contrary, the criminal judge will try to reach the material truth as the primary objective. Therefore, Article 74 of the Turkish Code of Obligations does not prevent the civil judge from being bound by the finalised judgement of the criminal court determining the causal link (Çenberci, M.: Final Judgement in Civil Cases, Ankara 1965, p.22 et seq.; also HGK, 16.09.1981, 1979/1-131 E., 1981/587 K.; 27.04.2011, 2011/17-50 E, 2011/231 K.; 03.04.2013, 2012/19-873 E, 2013/433 K.).
According to the established practice of the Court of Cassation and the general acceptance in the doctrine, the decision of the criminal court regarding the determination of the material fact binds the civil judge. Despite the finalised acceptance of the existence or non-existence of a material fact in the criminal court, it is not possible to re-discuss the same issue in the civil court.
When the concrete situation is evaluated in the light of all these explanations;
The decision rendered at the end of the lawsuit filed with the accusation of “embezzlement and abuse of office” in the file registered under the number 2006/272 E. of the Üsküdar 2nd (now Istanbul Anatolia 6th) Assize Court (before the reversal) was reversed by the decision of the 5th Criminal Chamber of the Court of Cassation dated 04.12.2012 and numbered 2010/9570 E., 2012/12454 K. for the investigation of some defendants, including the defendant cooperative managers and the plaintiff company officials. As such, it is understood that the aforementioned case is still pending. It is indisputable that the judgement rendered in the trial to be held after the reversal will affect the case at hand.
In this case, it is necessary to wait for the outcome of the case being tried in the Serious Criminal Court, after the decision to be rendered in the criminal case is finalised, to make a discovery at the scene with a committee of 3 experts who are experts in their fields to be assigned to reveal the truth by evaluating the material facts and all the evidence collected in the criminal case, to obtain a report that is suitable for inspection and reasoned, and thus to eliminate the contradictions between the original and additional reports and the additional reports themselves (CCP.art.281 ) within the framework of the result to be formed, the amount of the work price that the contractor deserves should be determined.
Lastly, although it was decided to deem the combined case as not filed (Article 150 of the CCP), the judgement established as “…to take the 1.500,-TL. attorney fee for the defendant’s attorney from the defendant and give it to the plaintiff,” is contrary to Article 326/1 of the Code of Civil Procedure and required reversal.
According to the explanations made above, it is contrary to the procedure and the law to resist the previous decision, while the Special Chamber’s reversal decision, which was also adopted by the General Assembly of Civil Chambers, should be complied with.
Therefore, the decision to resist should be reversed.
CONCLUSION:
It was unanimously decided on 14.06.2017, with the acceptance of the appeal objections of the defendant-counterclaimant cooperative’s attorney, that the decision of resistance shall be reversed in accordance with Article 429 of the Code of Civil Procedure No. 1086 due to the additional reasons shown in the Special Chamber’s reversal decision and above, and that the pre-appeal fee shall be returned to the depositor upon request, with the way of decision correction open.
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