Building Registration Certificate Does Not Remove The Property From Being An Illegal And Illegal Building
General Assembly of Civil Chambers 2020/168 E. , 2020/394 K.
“Case Law Text”
COURT :Civil Court of First Instance
1. At the end of the trial held due to the “receivable” lawsuit between the parties, the decision of the Istanbul Anatolian 28th Civil Court of First Instance regarding the dismissal of the lawsuit was reversed by the 15th Civil Chamber of the Court of Cassation upon the appeal of the plaintiff’s attorney, and the Court resisted against the reversal decision of the Special Chamber.
2. The decision of resisting was appealed by the plaintiff’s attorney.
3. After the documents in the file were examined by the General Assembly of Civil Chambers, the necessity was discussed:
I. JUDICIAL PROCESS
Plaintiff’s Petition
4. In his petition dated 05.02.2016, the plaintiff’s attorney stated that a construction in return for land share and sales promise agreement was signed on 06.09.1995 between his client and İzzet Önel, the murisi of the defendants, that his client completed the construction in 1997 and delivered the flats, then a dispute arose between them in 2009, that in the lawsuit filed by the land owner on the grounds that the building was contrary to the zoning, the Istanbul Anatolian 15th Civil Court of First Instance decided to terminate the contract and cancel the land share in the name of his client with the file numbered 2009/343 E. No. 2009/343 E. of the Istanbul Anatolian 15th Civil Court of First Instance,
it was decided to terminate the contract and cancel the land share in the name of the client and the decision was approved by the Court of Cassation, the land subject to the lawsuit was shared 1/2 between the client and the land owner, 4 flats and 1 shop were used separately by the land owner and the client, claiming that the landowner became the owner of the entire building due to the cancellation of the share in the name of his client, and that the legal relationship between them should be liquidated according to the provisions of unjust enrichment due to the retroactive termination of the contract, and requested and sued for the collection of 10. 000TL from the defendants together with the interest to be accrued as of 25.03.1997 when the building was delivered.
Defendant’s Reply:
5. In his petition dated 02.03.2016, the Defendants’ attorney stated that the lawsuit should be dismissed due to statute of limitations, that there was a building on the land subject to the lawsuit, which belonged to his client’s grandfather, that this building was demolished and the building subject to the lawsuit was built, that in the lawsuit filed by his client with the request for termination of the construction contract in return for land share, Istanbul Anatolia 15. Civil Court of First Instance with the file numbered 2009/343 E.,
it was decided to terminate the contract and cancel the land share in the name of the defendant, the decision was finalised after passing the Supreme Court of Appeals, the building built by the plaintiff was built in violation of the zoning, the plaintiff defended the dismissal of the lawsuit by stating that the plaintiff is trying to collect the price of the construction that has no value.
Decision of the Court of First Instance:
6. Istanbul Anatolian 28th Civil Court of First Instance dated 21.06.2016 and numbered 2016/52 E, 2016/185 K. dated 21.06.2016 and numbered 2016/52 E., 2016/185 K.; in the file numbered 2009/343 E. and 2013/553 K. of Istanbul Anatolian 15th Civil Court of First Instance, it was determined that the construction for which compensation was requested was built without a licence, that it was in the nature of an illegal building, that it was on the road in the zoning application plan, that it was not possible to connect it to the licence,
and that the decision was finalised on 26. 02.02.2015, according to the practices of the Court of Cassation, it was decided to dismiss the lawsuit on the grounds that the building, which is illegal and on the road according to the zoning plan, has no economic value since it is not possible to connect it to the licence by eliminating its contradiction with the zoning, and compensation cannot be requested for the building that has no economic value.
Special Chamber Reversal Decision:
7. The plaintiff’s attorney filed an appeal against the above-mentioned decision of the Istanbul Anatolian 28th Civil Court of First Instance.
8. With the decision of the 15th Civil Chamber of the Court of Cassation dated 29.05.2018 and numbered 2018/927 E., 2018/2226 K;
Provisional Article 16 added to the Zoning Law No. 3194 is a regulation that is envisaged to be applied retroactively in terms of its content, since it will be applied for illegal and illegal structures built before 31.12.2017, and since it is a retroactive legal regulation whose procedure is an exception to the vested right, the aforementioned provision will be applied by the courts for the cases at hand, as well as the new regulation should be considered by the Court of Cassation at the appeal stage, accordingly, when the concrete case is evaluated, 18. When the concrete case is evaluated, the temporary article 16 added to the Zoning Law No. 3194 with Article 16 of the Law No. 7143 on the Restructuring of Taxes and Some Other Receivables and Amendments to Certain Laws, which entered into force on 18.05.2018.
In this case, since it is possible to rebuild the building by obtaining a building registration certificate for illegal and illegal buildings, or to make it legal, albeit temporarily, to be valid until the urban transformation application, it is stated that the dispute should be re-evaluated by the court by determining whether the building has been made legal by applying within the period in the aforementioned regulation and completing the necessary procedures and obtaining a building registration certificate, and it has been decided that the decision should be reversed, and according to the reason for reversal, the other appellate objections of the plaintiff’s attorney are not examined for now.
Decision on Resistence:
9. Istanbul Anatolian 28th Civil Court of First Instance dated 05.09.2019 and numbered 2019/177 E, 2019/274 K. dated 05.09.2019 and numbered 2019/177 E., 2019/274 K.; In accordance with the provisional Article 16 added to the Zoning Law No. 3194 with Article 16 of the Law No. 7143, which entered into force in addition to the previous grounds, it has been decided that the zoning violations that were built before 31.12. 2017, the building registration certificate was obtained for the illegal and illegal buildings built before 31.12.2017, and the building was made legal, albeit temporarily, to be valid until the reconstruction of the building or urban transformation application,
but the building subject to the lawsuit is on the public road in the zoning plan, Since it is not possible to issue a building registration certificate, as well as the building registration certificate will not remove the property from being an illegal and illegal building, it is possible to demolish it at any time by converting it into a road by implementing the zoning plan, even if the zoning plan is not implemented, the building must be demolished until the reconstruction and urban transformation is implemented at the latest, and the plaintiff cannot be enriched due to the building.
Appeal of the Resistence Decision:
10. The resisting decision was appealed by the plaintiff’s attorney within the time limit.
II. DISPUTE
11. In the concrete case, the issue is whether it is necessary for the court to investigate whether the building has been legalised by obtaining a building registration certificate pursuant to the provisional Article 16 added to the Zoning Law No. 3194 with Article 16 of the Law No. 7143 regarding the building, which is undisputed to be illegal and contrary to the zoning.
III. REASON
12. In terms of the solution of the dispute, firstly, it is deemed useful to make general explanations regarding the status provided by this document in case of obtaining a building registration certificate in accordance with the provisional Article 16 added to the Zoning Law No. 3194 with the Law No. 7143.
13. Provisional Article 16 was added to the Zoning Law No. 3194 with the Law No. 7143, and the first paragraph of the article stipulates that a building registration certificate can be issued for the structures built before 31.12.2017 in order to register the structures without a licence or in violation of the licence and its annexes within the scope of preparation for disaster risks and to ensure zoning peace, if the application is made to the Ministry of Environment and Urbanisation and the institutions and organisations to be authorised by it until 31.10.2018, the conditions in this article are fulfilled and the registration fee is paid until 31.12.2018.
14. The term “building registration certificate” was first introduced to our law with the provisional Article 16 added to the Zoning Law No. 3194. Justification of the provisional Article 16 added to the Zoning Law No. 3194 is as follows: “In order to register the buildings without a licence, contrary to the licence and its annexes or contrary to the zoning legislation within the scope of preparation for disaster risks and to provide financing for transformation projects and to make the transformation faster and more effective,
the buildings built before 31.12. 2007 to be registered in the building registration system to be prepared upon the applications of the building owners and according to their declarations, to reduce the workload in the judiciary and municipalities in order to connect water, electricity and natural gas to these buildings, to waive the demolition decisions and uncollected fines, and to establish a change of type and condominium ownership without seeking a certificate of occupancy in case of the consent of half of the owners”.
15. When the aforementioned article is evaluated together with its justification as a whole, it is understood that by issuing this document as a result of the application, an authorisation is given to the owners regarding the use of the building and an administrative status is provided regarding the use and possession of the building. This status provided by issuing a building registration certificate provides protection to the owner of the building by the administration regarding the use of a structure that is not protected due to its violation of the zoning legislation and which should actually be demolished.
16. Provisional Article 16/3 of the Zoning Law No. 3194 clearly states that the building registration certificate is for the purpose of use of the building. When these points are taken into consideration, it is understood that the regulation allows the use of structures that are contrary to the zoning and should be demolished, and that the administration allows the owner of the building to use the building.
17. In addition, in the provisional Article 16/10 of the Zoning Law No. 3194, it is clearly stated that the building registration certificate is valid until the reconstruction of the structure or urban transformation application, and that the provisions of the zoning legislation in force will be applied in case of the renewal of the structures for which the building registration certificate is issued. This provision, in particular, provides that the building registration certificate provides a temporary status regarding the use of the building, the building is allowed to be used by the administration despite the fact that it is contrary to the zoning with this status, but in case the building is renewed, it is understood that the provisions of the zoning legislation in force will be applied.
18. Provisional Article 16/1 of the Zoning Law No. 3194 grants the owner of the immovable property the right to obtain a building registration certificate if the conditions specified in the provisional Article 16/1 of the Zoning Law No. 3194 are met, and there is no mandatory statement here regarding the exercise of this right by the owner of the immovable property. Considering this situation, no one will be forced to apply for a building registration certificate against his/her will. In a construction contract in return for land share, the contractor cannot force the landowner to obtain a building registration certificate for the building he has constructed in violation of the zoning.
19. When the owner of the immovable property obtains a building registration certificate for the building in violation of the zoning, the use of the building will be ensured, but the building registration certificate will not make the building in compliance with the zoning so that it can be occupied, as stated above.
20. When the concrete case is evaluated in the light of these principles and explanations; it is understood that the construction contract in return for land share signed between the plaintiff and the murisi of the defendants was decided to be terminated by the decision of the Istanbul Anatolian 15th Civil Court of First Instance dated 06.11.2013 and numbered 2009/343 Main, 2013/553 Decision due to the fact that the building constructed by the plaintiff was built in violation of the zoning and it was not possible to obtain a settlement licence.
21. Considering the regulations in the provisional Article 16 added to the Zoning Law No. 3194 with the Law No. 7143, the building registration certificate is related to the use of the building contrary to the zoning and does not make the building conform to the zoning. The building registration certificate is valid until the reconstruction of the building or urban transformation application and provides a temporary status regarding the use of the building. In this case, determining whether the defendant immovable owners have received the building registration certificate will not affect the result.
22. For the reasons explained, the decision of resistance that it is not necessary to investigate whether the defendant immovable owners applied to the administration to obtain a building registration certificate is appropriate.
23. However, since the appeal objections regarding the merits of the case were not examined by the Special Chamber, the file should be sent to the Special Chamber for the examination of the appeal objections regarding these aspects.
IV. CONCLUSION:
For the reasons explained;
The decision of resisting is appropriate and the file should be sent to the 15th LAW CHAPTER for the examination of the appellate objections regarding the merits of the case,
However, due to the fact that the way of correction of the decision is open, these procedures shall be fulfilled by the court, and if the decision is applied for correction of the decision, the file shall be sent to the General Assembly of Civil Chambers, and if not, the file shall be sent directly to the Special Chamber by the court,
Pursuant to Article 440 of the Code of Civil Procedure No. 1086, which is being applied according to the Provisional Article 3 of the Code of Civil Procedure No. 6100, it was unanimously decided on 10.06.2020, with the way of decision correction open within fifteen days from the notification of the decision.
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