Violation Of The Right To Property Due To The Municipality’s Exercise Of The Pre-Purchase Right On The Immovable Property Of Which It Is A Stakeholder As A Result Of The Court Decision Given Due To Legal Seizure
Events
The immovable property is identified as urban recreation area in the zoning plan and parcelisation plan.
H.Y., one of the shareholders of the immovable, filed a lawsuit due to expropriation without expropriation; the civil court of first instance determined that the municipality had expropriated the immovable without expropriation and awarded compensation in favour of the plaintiff and also decided to register the immovable share in the name of the municipality. The decision was upheld by the Court of Cassation. However, in the upholding decision, it was accepted that there was a legal expropriation in the case, not an actual expropriation. Upon the finalisation of the decision, a partial share of the immovable was registered in the title deed in the name of the municipality on 1/8/2013. The immovable in question was transformed into a commercial recreation area in the implementation zoning plan dated 11/12/2013.
Applicants purchased some shares of the said immovable from M.A. on 31/7/2013. The Municipality filed a lawsuit for cancellation and registration of title deed due to the pre-emption right arising from this sale. As a result of the lawsuit, it was ruled that the title deed regarding the shares purchased by the applicants be cancelled and the said shares be registered in the name of the municipality, and the amounts deposited in the bank be paid to the applicants.
Upon the applicants’ application for appeal against this decision, the regional court of appeal assessed that there was no procedural or legal violation in the first instance court’s decision. The applicants appealed the decision and the Court of Cassation upheld the decision of the regional court of first instance.
Allegations
The applicants claimed that their right to property was violated due to the municipality’s exercise of the right of pre-emption on the immovable property in which they were a shareholder as a result of the court decision issued due to legal seizure.
Turkish Civil Code No. 4721 regulates the relations between civil law persons. In this respect, there may be hesitation as to whether it is possible for public authorities, which are equipped with public power and have superior powers such as expropriation, to benefit from the right of pre-emption under Articles 732 and following of Law No. 4721. However, since the authority to interpret the legal rules to be applied in the dispute primarily belongs to the courts of first instance, it is not deemed necessary to make a further evaluation regarding the conclusion reached by the courts of first instance that the municipality is the subject of the right of pre-emption pursuant to Article 732 of the Law No. 4721.
The purpose of granting the right of pre-emption to the joint owners is to provide the shareholders with the opportunity to prevent the entry of outsiders into the shared property association and to avoid being shareholders with the persons they do not desire, and also to ensure the liquidation of the unusable shared property relationship over time.
When the concrete case is examined, it is understood that on 31/7/2013, when the pre-purchase right of the municipality arose, the immovable property was one of the places allocated for public service in the zoning plan. Since it cannot be considered that an immovable allocated to public service by the municipality can be left in private ownership subject to the provisions of civil law, in other words, since the other shares of the immovable in private ownership will also have to be expropriated, it cannot be said that the purpose of preventing foreigners from entering the joint ownership association and ensuring the liquidation of the joint ownership partnership over time is valid on the date of the right of pre-emption.
However, it can be said that the right of pre-emption has become a favourable tool in terms of achieving the above-mentioned objectives after 11/12/2013, when the immovable was converted into a commercial recreation area.
In the concrete case, since the municipality’s shareholding was registered on the title deed one day after the sale, the applicants were not in a position to foresee that the right of pre-emption could be used by the municipality when they purchased the immovable property.
On the other hand, the municipality became the owner of some of the shares of the immovable not through purchase, acceptance of donations or similar procedures, but on the basis of a court decision finding that it had violated the Constitution and the legal regulations on expropriation by not expropriating an immovable allocated for public service for a long time. It has been stated in the previous decisions of the Constitutional Court that the failure to expropriate an immovable allocated for public service for a long time constitutes a severe interference with the right to property and disrupts the fair balance that must be observed between the public interest and the owner’s right to property to the detriment of the owner. Therefore, putting the municipality on the same footing with other stakeholders would not be in accordance with equity under the circumstances of the concrete case.
A contrary approach may open the door for public institutions to avoid fulfilling their constitutional obligations regarding expropriation, and may encourage public administrations to act more reluctantly in complying with their constitutional obligations, seeing that practices that clearly circumvent Article 46 of the Constitution will provide more advantages. Expropriation without expropriation is a practice that is clearly contrary to Article 46 of the Constitution, and in cases where the right to property is interfered with in this way, evaluations and interpretations that would derive rights in favour of the wrongful acts of public administrations or lead to the conclusion that these practices are legitimate cannot be reconciled with the principle of the rule of law.
In addition, since the subjection of an immovable, which is obligatory to be expropriated, to the right of pre-emption by the administration liable for expropriation is incompatible with the purpose of the right of pre-emption in Law No. 4721, it is also not possible for the municipality to subject the immovable to the use of the right of pre-emption when it was reserved as an urban recreation area in the zoning plan.
The municipality’s use of its authority to change the zoning plan to make the right of pre-emption, which is a private law institution regulated under Law No. 4721, available, has provided a serious advantage to the municipality. It is concluded that making the right of pre-emption, which was not legally possible to be used at the time of its birth, assertable in the courts through the exercise of a public authority that is not available to private law persons, has led to the emergence of a significant imbalance against the applicants.
For the reasons explained above, the Constitutional Court decided that the right to property was violated.
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