Only Having A Balcony And A Window In The Direction Of The Neighbouring Parcel Does Not Alone Constitute A Violation Of The Neighbourhood Law
8th Civil Chamber 2018/15610 E. , 2021/2262 K.
“Case Law Text”
COURT :Civil Court of First Instance
TYPE OF CASE : Prohibition of Intervention, Kal
At the end of the trial held in the above-mentioned case between the parties, the Court decided to accept the lawsuit and upon the appeal of the judgement by the defendant …, the file was examined by the Chamber and the necessity was considered:
DECISION
In the main lawsuit, the plaintiff’s attorney stated that his client was a resident of … Province, … District, … Neighbourhood 227 block 18 parcel and the defendants are the owners of the immovable property numbered 227 block 16 parcel, while the defendants built a four-storey house on their immovable property, the balcony and window parts of the house were built within the boundaries of the immovable property belonging to his client, and the immovable property belonging to his client was unjustly seized, In addition, during the construction phase, the garden wall belonging to his client was demolished by the defendants without obtaining permission from his client, and he demanded and sued for the prohibition of the wrongful intervention of the defendants to the immovable property numbered 227 block 18 parcel,
and the demolition of the structures belonging to the defendant on the immovable property belonging to his client, and at the 16th hearing dated 15. In the 16th hearing dated 03.03.2018: Although they requested the demolition of the defendant’s flood structures together with the prohibition of the intervention, they stated that they did not want the demolition of the defendant’s immovable due to neighbourhood law, however, if it is not possible to close the glass and balcony made in violation of the zoning plan and license, the requests for the prohibition of intervention and the stay continue.
In the merged file, the plaintiff’s attorney requested and sued the defendants to prevent the intervention by closing the glass windows and balconies contrary to the zoning licence.
Defendants … defended the dismissal of the lawsuit by stating that the balcony and window part of the immovable subject to the lawsuit are within the boundaries of their own immovable in the title deed records, and that the demolition of the garden wall was done by the plaintiff himself.
At the hearing dated 17.07.2012, the defendant … defended the dismissal of the lawsuit, stating that the plaintiff saw the way the building was constructed and did not make any objection.
The Court, with its decision dated 05.02.2013 and numbered 2012/110 Main, 2013/75 Decision; accepted the plaintiff’s lawsuit, and decided that the immovable property registered in … Province, … District, … Neighbourhood, 227 block 16 parcel belonging to the defendants, and the immovable property registered in … Province, … District, … Neighbourhood, 227 block 18 parcel belonging to the plaintiff, shall be transferred to the immovable property registered in … Province, … District, … Neighbourhood, 227 block 18 parcel numbered, according to the report and sketch dated 16.10.2012 of the science expert Halil İbrahim Nurdoğan. 2012 dated 16.10.2012 dated report and sketch of science expert Halil İbrahim Nurdoğan, the decision on the prevention of the encroachment of 2,05 m2 painted in red and shown with the letter A and the demolition of the 2,05 m2 protrusion was reversed by the decision of the 1st Civil Chamber of the Court of Cassation dated 28.01.2014 and numbered 2013/18095 Main, 2014/1317 Decision.
In the reversal decision, “The lawsuit was filed with the requests for the prevention of encroachment and demolition.
The court decided to accept the lawsuit on the grounds that the flood construction was determined by discovery; the appeal request of the defendants was rejected with an additional decision by mentioning that the value of the case was below the appeal limit; the aforementioned additional decision was also appealed by the defendants.
It should be immediately noted that, considering that the case at hand arises out of the immovable property, it is clear that it is not subject to the finality limit in terms of the value of the case. In this case, the additional decision regarding the rejection of the appeal request is not justified.
On the other hand, in terms of the merits of the case, it cannot be said that the report prepared by the surveyor by applying the plan to the ground is sufficient for the judgement, and it is not correct not to dwell on the defendants’ defence of registration by assignment.
In this case, first of all, the survey record or records should be brought and all the evidence of the parties should be collected, and in the application to be made after the file is ready for discovery, the expert witnesses who have the title and ability of cadastral surveyor or engineer should be asked to determine the triangulation points set during the cadastre, If these are not available, measurements should be made in accordance with cadastral methods with sensitive instruments by using the fixed points available both on the plan and in the field,
and a sketch and report should be obtained from the experts reflecting the application, sufficient to ensure enforcement, and especially clearly showing whether there is an encroachment on the plaintiff’s immovable, and if so, its amount; Within the framework of the defendants’ defence of registration by assignment, it should be examined whether the conditions in Article 725 of the Turkish Civil Code No. 4721. It should be investigated whether the conditions in Article 725 of the Turkish Civil Code No. 4721 are fulfilled.
The appeal objections of the defendants are appropriate for the reasons explained.
1- The additional decision of the local court dated 30.07.2013 (regarding the rejection of the appeal request), which is contrary to the procedure and the law, shall be annulled,
2- It was unanimously decided on 28.01.2014 that the decision of the local court dated 05.02.2013 (regarding the acceptance of the case) shall be reversed in accordance with Article 428 of the Code of Civil Procedure No. 1086 with the reference to the provisional Article 3 of the Code of Civil Procedure No. 6100, and the advance fee shall be returned to the appellant.”
In the judgement held after the court complied with the reversal order;
1- With the acceptance of the lawsuit filed in terms of the main lawsuit; to prohibit the intervention of the immovable registered in … province … district … Mah. 227 block 16 parcel belonging to the defendants to the immovable registered in … province … district … Mah. 227 block 18 parcel numbered immovable belonging to the plaintiff … province … district … Mah. 227 block 18 parcel numbered immovable in the area of 2.09 m², which is shown in red colour and with the letter A in the report and sketch dated 13.04.2016, prepared by the science experts,
2- With the acceptance of the lawsuit filed in terms of the merged file; the decision on the prohibition of the defendants’ intervention by closing the balconies and windows in the direction facing the plaintiff’s … province … district … district … Mah. 227 island 16 parcel numbered 227 island 18 parcel numbered immovable belonging to the defendants was appealed by the defendants … in due time.
The lawsuit is related to the request for the prevention of seizure of the immovable property and the request for the stay.
1. According to the content of the file, the contents of the case documents and the minutes of the proceedings, the available evidence has been appreciated and decided by the court, and there is no inconsistency in the decision, it has been decided to reject the other appellate objections of the defendants …, which are not within the scope of the following subparagraph.
2. The acceptance of the violation of neighbourhood law depends on the condition of damage. Unless it is proved that the construction of a person in his own property area has caused damage to the neighbouring immovable property owner, this situation cannot be considered as a dispute and cannot be resolved. Violation of zoning and licence concerns the administration and administrative judiciary. Opening windows and balconies in the direction of the neighbouring parcel does not in itself constitute a violation of neighbourhood law. A construction in violation of the zoning plan is basically a behaviour that requires the administration and administrative sanction and cannot be interpreted as a violation of neighbourhood law in the abstract.
In this respect; at the end of the trial, according to the entire file scope, it is not correct to make a written decision since the existence of concrete damage to the plaintiff caused by the windows and balcony contrary to the zoning and licence cannot be proved.
CONCLUSION:
For the reasons written in subparagraph (1) above, the other objections of the defendants … for the reasons written above are rejected, and since the appellate objections are appropriate for the reasons shown in subparagraph (2), it is accepted and the decision is DISMISSED in accordance with Article 428 of the Code of Civil Procedure, the way of correction of the decision against the judgement is closed in accordance with subparagraphs 440/III-1, 2, 3 and 4 of the Code of Civil Procedure, the advance fee shall be returned to the appellant upon request, it was unanimously decided on 15.03.2021.
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