When The Zoning Plan Is Cancelled, No Fault Can Be Seeked For Failure To Complete The Construction In Due Time
General Assembly of Civil Chambers 2017/845 E. , 2020/723 K.
“Case Law Text”
COURT :Civil Court of First Instance
1. At the end of the trial held due to the “compensation” lawsuit between the parties, the decision of Alanya 4th Civil Court of First Instance regarding the dismissal of the lawsuit was reversed by the 23rd Civil Chamber of the Court of Cassation upon the appeal of the plaintiffs’ attorney, and the Court resisted against the reversal decision of the Special Chamber.
2. The decision of resisting was appealed by the counsel for the plaintiffs.
3. 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 since the second paragraph of Article 438 of the Code of Civil Procedure No. 1086 (HUMK), which is being applied according to the Provisional Article 3 of the Code of Civil Procedure No. 6100 (HMK) as of the date of the decision of resistance, does not foresee a hearing in the appellate examination of the decisions of resistance, it was decided to reject the request of the plaintiffs’ attorney for a hearing and the documents in the file were read and discussed:
I. JUDICIAL PROCESS
Plaintiffs’ Counsel
4. In the statement of claim dated 22.11.2012, the counsel for the plaintiffs stated that a construction contract was concluded between the parties on 14.05. 2005, that at least 24 flats will be given to the landowners from the construction to be made in accordance with the contract, that although the production of the flats that will fall to the defendant contractor has been completed, the independent sections falling to the plaintiffs have not been completed, that the construction has not been completed although the construction should be completed within 18 months from the date of the licence in accordance with the construction contract in return for the share of land signed between the parties,
Therefore, the defendant should pay a delay penalty of 500TL per month for each flat, the construction is also defective, the foundation has shifted, although the defendant has been notified by the defendant to take delivery of the buildings, the buildings do not meet the delivery condition, and without prejudice to the rights related to the surplus, the plaintiffs have requested a decision to collect from the defendant a total of 729.000TL delay penalty, which is 500TL per month for each flat, from 17. 10.2007, the construction of the 24 flats falling to the plaintiffs should have been completed, without prejudice to their right to excess, and requested a decision to collect a total of 729.000TL delay penalty of 500TL per month for each flat, together with legal interest from the defendant.
Defendant’s Reply:
5. In the reply petition dated 17.12.2012, the defendant’s attorney stated that the construction could not be completed due to the economic crisis in the country and force majeure, the zoning obstacle still continues, the zoning application made in the region including the parcels where the construction is located was cancelled by the decision of the administrative court, therefore, the Municipality’s 18.03. 2008 dated 18.03.2008, it was stated that the request for the foundation visa of the construction was not taken into consideration, as a result of the determination made by his client, it was determined that the construction was completed before the aforementioned date, due to the cancellation of the zoning application, the occupancy permit of the construction could not be obtained due to force majeure, and the other reason for the actual delay was the landowners’ requests for changes after the completion of the construction,
Although the construction was actually completed, the landowners did not take delivery of their flats and did not transfer their land shares to his client, the plaintiffs actually took delivery of the flats, they or their tenants started to live in the flats, block A shifted during the road work carried out by the Municipality in the north of the blocks and it was decided to demolish block A with the decision of the council dated 22. 11.2012 dated 22.11.2012, it was decided to demolish Block A and the demolition process was carried out, and requested the dismissal of the lawsuit.
Court Decision
6. With the decision of Alanya 4th Civil Court of First Instance dated 15.01.2014 and numbered 2012/663 E., 2014/6 K.; the zoning plan in the neighbourhood where the parcels subject to the contract are located was approved by the decision of Antalya 2nd Administrative Court dated 05.04.2007 and numbered 2006/1919 E., 2007/527 K. dated 05.04.2007 and numbered 2006/1919 E., 2007/527 K., the said decision was approved by the Council of State and became final on 13.05.2010, the construction licence was obtained by the defendant on 17.04.2006, the 18-month construction completion period according to the contract from the date of obtaining the licence expired on 17.10.2007, since the zoning plan in the area where the immovables are located was cancelled by the administrative court during the construction period, all licence procedures regarding the construction in the said area were stopped by the municipality,
and the defendant’s request for a basic visa for the construction was rejected with the municipality’s reply dated 18.03.2008. 2008, despite the cancellation of the zoning plan in the area where the immovables are located, the plaintiff tried to build the construction illegally, within this framework, a number of buildings were built within the scope of the project, when all these issues are evaluated together, no fault can be attributed to the defendant in the cancellation of the zoning plan,
It was decided to dismiss the case on the grounds that the cancellation of the zoning plan could not have been predicted by the defendant beforehand, it was impossible to continue the construction since it was impossible to obtain a license in a place where the zoning plan was cancelled, and at this stage, the defendant could not be held responsible for the penalty clause due to the failure to complete the construction in due time.
Special Chamber Reversal Decision:
7. The plaintiffs’ counsel filed an appeal against the above-mentioned decision of Alanya 4th Civil Court of First Instance within the time limit.
8. With the decision of the 23rd Civil Chamber of the Court of Cassation dated 20.01.2015 and numbered 2014/6179 E., 2015/310 K;
“…Pursuant to the construction in return for land share agreement between the parties, it was agreed that the construction in question would be delivered to the landowners by obtaining a building licence within 6 months from the date of the agreement and by obtaining a pre-occupancy certificate within 18 months from this date. The building licence for the construction was obtained on 17.04.2006, and the plaintiff landowners, accepting that the construction period would start from this date, claimed that the independent sections were not delivered at the end of the 18-month period and demanded the collection of delay compensation.
In the article of the contract titled the duration of the construction, it is stated that the duration of the work can be added to the duration of the work provided that the construction is stopped by the municipality due to the tourism ban, and according to the municipality letter dated 22.11.2013 within the scope of the file, it is understood that no addition can be made to the duration of the work for this reason, since it is reported that no action has been taken by them to stop the construction at the place where the construction is carried out. In this case, the work should be delivered 18 months after the construction licence date, i.e. on 17.10.2007.
The court decided to dismiss the case by accepting that the time period was extended due to the cancellation of the zoning plan in the region where the construction was built, and therefore the contractor did not default in delivery. However, it was erroneous not to take these issues into consideration, while it was necessary to examine whether the time to be added to the delivery date of 17.10.2007, which was determined above, due to the overproduction claimed by the contractor in its defence, and to make a decision based on the date to be found by adding this period, if any, otherwise, based on the date of 17.10.2007, in case the zoning plan is cancelled after this date, that is, whether the cancellation of the zoning plan after the contractor’s default in delivery will affect its responsibility in accordance with Article 102/2 of the CO (119/2 of the TCO).
In addition, it has been agreed that 24 independent sections will be given to the plaintiff landowners on 1515 block 1 parcel pursuant to the contract, and it has been defended that these independent sections have started to be disposed of by the landowners by renting them out or living in them themselves. As a matter of fact, various lease agreements have been submitted to the file to constitute evidence in this regard. As it is known, the claim for delay compensation refers to the damage actually suffered in principle. In this case, if it is determined that the contractor has defaulted in delivery as a result of the research to be carried out in accordance with the above subparagraph, it is obligatory to investigate the date on which each independent section was delivered to the land owners and to reach a conclusion accordingly.
Likewise, it is understood from the information and documents in the file that Block A, which is also not disputed that it belongs to the landowners, was demolished, and it was defended that the blocks with other independent sections should be retrofitted and that they are uninhabitable, and it should be evaluated in this direction if it is determined that the contractor is at fault by examining the reason for the demolition of Block A and whether it is necessary to perform the retrofitting process in terms of other blocks and the reason.
It is contrary to the procedure and the law to make a decision without taking into account the aforementioned issues, and the judgement had to be reversed for these reasons…”.
Resistence Decision:
9. With the decision of Alanya 4th Civil Court of First Instance dated 10.07.2015 and numbered 2015/190 E., 2015/439 K. dated 10.07.2015 and numbered 2015/190 E., 2015/439 K.; the zoning plan in the location of the immovable subject to the lawsuit was cancelled by the decision of the administrative court, the decision was notified to the municipality on 31.05.2007, the decision was approved by the Council of State upon appeal and became final, in accordance with Article 28/1 of the İYÜK numbered 2577, the administration is obliged to implement the court decisions within 30 days from the notification,
the municipality must fulfil the requirements of the decision until 30.06.2007 from the notification of the decision. 2007, the date of the defendant’s completion of the construction was 17.10.2007 and before the expiry of the construction period, the zoning plan for the area where the construction in question was located was cancelled and the municipality had to implement the decision of the administrative court, according to Article 102/2 of the abrogated Code of Obligations (BK) numbered 818, the defendant did not have a defect in the default due to the failure to complete the construction in due time.
Appeal of the Resistence Decision:
10. The decision of resisting was appealed by the plaintiffs’ counsel within due time.
II. DISPUTE
11. The dispute that came before the General Assembly of Civil Chambers by way of resistance; in the concrete case, in accordance with the construction contract in return for land share signed between the parties, whether the defendant contractor defaulted in the delivery, and if it is accepted that the contractor defaulted, whether the investigations specified in the reversal decision of the Special Chamber should be made.
III. REASON
12. In order to resolve the dispute, firstly, it is useful to examine the relevant legal regulations.
Article 102 of the Code No. 818 entitled “Liability in case of accident” reads as follows
“A defaulting debtor is obliged to pay damages and losses due to delayed performance of the obligation and is also liable for accidental damage.
The debtor may be relieved from this liability by proving that he has been negligent without any fault on his part, or that even if the debt had been fulfilled on time and on time, the accident would have hit the thing to be paid to the detriment of the creditor.”
It is regulated as follows.
13. According to Article 102/I of the Code No. 818, the defaulting debtor is also held liable for “accidental damage”. Here, the term “accident” is used in a broad sense. All reasons that occur during default without the fault of the debtor and make performance impossible are also included in the concept of “accident” (Akman, S./ Burcuoğlu, H./ Altop, A.: Tekinay Obligations Law General Provisions, Istanbul 1993, p. 926).
14. As a rule, if performance becomes impossible due to a cause arising without the fault of the debtor, the debtor is released from his obligation (Art. 117 of the CO). However, this rule does not apply in the event that the faultless impossibility arises after default, and the debtor is held liable even for accidents.
15. Article 102/II of the Code No. 818 provides the debtor with two possibilities to be released from liability for accidents. The debtor may prove that he is in default through no fault of his own, or that even if the obligation had been performed on time, the thing owed would have been damaged by accident to the detriment of the creditor. Therefore, if the debtor has defaulted without fault, proving this is sufficient to eliminate liability for accident. The point to be considered here is whether the debtor is only defective in defaulting (Akman, S./ Burcuoğlu, H./ Altop, A.: p. 927).
16. Even if the debtor is at fault for defaulting, he may be relieved from liability by utilising a second means of proof. Indeed, the debtor has the right to prove that even if the debt had been fulfilled on time, the thing which is the subject of the debt would have been accidentally damaged to the detriment of the creditor.
17. In order for the said burden of proof to be deemed to have been fulfilled, it must be established that if the thing which is the subject of the obligation had been given to the creditor, it would have suffered an accident in his hands, and it must also be proved that the creditor would have suffered damage from the accident even if the performance had been made on time. If these two conditions are fulfilled, the debtor may be released from liability even if he is at fault in default (Akman S./ Burcuoğlu H./ Altop A.: p. 927).
18. When the concrete case is evaluated in the light of these principles and explanations; between the landowner plaintiffs and the contractor, the construction contract in return for land share was signed on 14.06. 2005, and it was agreed that the duration of the construction would be 18 months from the date of the licence, provided that the construction licence was obtained within 6 months from the date of the contract, that if the construction was stopped by the municipality due to the ban on tourism or if the construction was stopped due to unavoidable reasons such as war, earthquake, mobilisation, the time that would elapse would be added to the construction period, and that if the construction was not completed in due time, the contractor would pay a monthly rent of 500TL for each apartment to the landowners.
19. According to the letter of Alanya Municipality Directorate of Zoning and Urbanisation dated 21.01.2013 and the building licence included in the file, the construction licence was issued on 17.04.2006 and according to the contract, the construction should be completed on 17.10.2007.
20. In the letter of Alanya Municipality Directorate of Zoning Affairs dated 18.03.2008, it was stated that the contractor’s request for foundation visa for the construction subject to the lawsuit could not be evaluated due to the cancellation of the zoning application in the region by the decision of Antalya 2nd Administrative Court.
21. In the letter dated 16.07.2013 of the Alanya Municipality Directorate of Zoning and Urbanisation included in the file, it was stated that the certificate of occupancy could not be issued for the buildings built on the subject parcel due to the cancellation of the zoning application in the region.
22. With the decision of Antalya 2nd Administrative Court dated 05.04.2007 and numbered 2006/1919 E., 2007/527 K., it was decided to cancel the zoning application in the region where the parcels subject to the construction contract in return for land share are located, and upon appeal of the decision, it was approved by the decision of the 6th Chamber of the Council of State dated 09.02.2010 and numbered 2008/1143 E., 2010 1215 K. and the decision became final on 13.05.2010.
23. According to the construction in return for land share contract signed between the parties, the delivery date of the construction is 17.10.2007 and the decision of Antalya 2nd Administrative Court regarding the cancellation of the zoning plan was given on 05.04.2007. Upon the notification of the said decision to Alanya Municipality, it is not possible for the municipality to issue a certificate of occupancy for the construction on the parcel subject to the lawsuit.
24. Since the decision regarding the cancellation of the zoning plan is related to public order, it cannot be said that the contractor is in default since it cannot be expected from him to continue the construction in violation of public order.
25. For this reason, the local court’s decision to resist on the grounds that the zoning plan for the area where the construction is located was cancelled before the contractor’s deadline for completing the construction expired and the municipality had to implement the decision of the Administrative Court, and since the zoning plan for the area where the construction is located was cancelled, the defendant was not at fault for not completing the construction in due time.
26. During the discussions in the General Assembly of Civil Chambers, it was stated that the cancellation of the zoning plan may be considered as force majeure for the claimant, but it should be determined whether the defendant defaulted before the force majeure, even though the Administrative Court cancelled the zoning plan where the immovable property subject to the lawsuit is located,
Although it has been argued that the cancellation of the zoning plan after the issuance of the building permit will not affect the validity of the previously obtained building permit, and that the cancellation of the zoning plan after the issuance of the building permit will not prevent the right gained in terms of land owners, and therefore, the court’s decision to resist while the Special Chamber’s reversal decision should be complied with is not appropriate, this opinion has not been adopted by the majority of the Board for the reasons explained above.
27. As such, the decision of the local court to resist is in accordance with the procedure and the law and should be approved.
IV. CONCLUSION:
For the reasons explained;
The appeal objections of the plaintiffs’ counsel are rejected and the decision of resistance is upheld,
Since the necessary appeal decision fee has been received in advance, there is no need to charge any other fee,
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 decided by majority of votes on 06.10.2020, with the way of decision correction open within fifteen days from the notification of the decision.
VOTE AGAINST
The approval decision will have two deficiencies.
Firstly, as of the date of delivery, it will not be determined whether there will be a zoning cancellation or not. However, if a research and examination like the Special Chamber’s reversal had been made, the issue would have been clarified.
Secondly, it is obligatory to obtain a building licence for construction within the zoning plan. With the finalisation of the zoning plan, the right holders have the right to abstract construction. The abstract right to build transforms into a concrete right to build upon obtaining a building licence. In the work titled General Principles of Building Law, (Taner Ayanoğlu Istanbul 2014), obtaining a building permit, its cancellation and its consequences are examined together with the decision of the administrative court.
The administrative court’s decision of zoning cancellation due to the deduction of the regulation partnership share (DOP) related to Article 18 of the zoning law is a decision related to the abstract right of construction within the zoning plan. There is no decision taken by the administrative court regarding the cancellation of the building permit, which is the concrete construction right. The vested right dimension has views such as respect for vested rights and not being affected by changing rules, and the necessity and necessity of expropriation if it will be affected. For a detailed discussion of the administrative judiciary on the subject, see ibid. p. 195 et seq.
The Mecelle 22 introduced the general principle of “expropriation is appreciated according to the amount of necessities”. Although the zoning order has a mandatory character related to public order, I am of the opinion that the disposition on the subject related to the administrative jurisdiction has exceeded its purpose. I think that a transcendental evaluation error has been made in accepting and concluding an administrative court decision on zoning cancellation as if there was a building permit cancellation. Had there been a building licence cancellation decision, I would have no objection to the conclusion reached.
For the two reasons I have briefly explained above, I cannot agree with the majority opinion to uphold the decision to resist. I am of the opinion that the decision to resist should be reversed as in the Special Chamber’s reversal decision.
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