Petition For Compensation Case Due To Expropriation
…………….. TO THE CIVIL COURT OF FIRST INSTANCE ON DUTY
DEFENDANT :A… B… (T.C.:………….)
ADDRESS
AGENT :Lawyer ……………..
ADDRESS
DEFENDANT :……….. Municipality
ADDRESS :……………………………….. Ankara
SUBJECT OF THE REQUEST :
…., located in Ankara Province, Yenimahalle District, …. Since the …. m2 immovable, which is within the scope of the parcel numbered …, has been seized by the defendant administration without expropriation, it is the request that the compensation of TL 000.00 be taken from the defendant administration and given to the client with the interest to be accrued from the date of this lawsuit, without prejudice to our rights regarding the excess.
CLAIM VALUE:
TL 000,00 for the price of the immovable property seized without expropriation, without prejudice to our rights regarding the excess
EXPLANATIONS
As can be understood from the title deed (ANNEX-1) we have attached, the client A…. B…. is the owner of the … share of the immovable property located in Ankara Province, Yenimahalle District, … Island … Parcel No. …, which has a floor easement with a … m² field.
Article 16 of the Condominium Law states that “The condominium owners own all common areas of the main real estate in proportion to their land shares, according to the provisions of common ownership. The floor owners have the right to use the common areas; the measure of this right in places such as general coal cellars, garages, terraces, terraces, laundry and laundry drying areas is proportional to the land share of each floor owner, unless there is an agreement to the contrary.” In accordance with this article, the client owns the common areas of the … Apartment in proportion to its share.
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The immovable property in question, of which the client is a condominium owner, is located on Batıkent …… Street, which is a very busy area of Yenimahalle district, one of the most populous districts of Ankara. The region where the immovable is located is extremely valuable. There are multi-storey buildings and business centres along the street, and the immovable is located in the middle of commercial and social facilities.
On the parcel of land on which the immovable in question is located, in the year 20…, the defendant municipality constructed a staircase by widening the road and building a pavement to be allocated to public use. This staircase was allocated to public use by the defendant administration without an expropriation decision, without establishing an easement right and without paying the price in order to provide a passage from Batıkent …… Street to … Park. In this way, at least … m² where the staircase was built cannot be used by the client.
ABOUT OUR COMPENSATION CLAIM
The administration, which occupied the immovable property where the client was a condominium owner, did not take an expropriation decision regarding this occupation, nor did it notify the client about this expropriation process. In this way, the administration has seized the part separated from the main real estate by widening the road and building a sidewalk and building a staircase without the client’s consent and without the client’s financial loss being paid to him, even without an expropriation decision.
Pursuant to Article 8 of the Expropriation Law No. 2942, which explains the purchase procedure, “The administration, without specifying the estimated price determined by the appraisal commission, notifies the owner with an official registered letter that it intends to purchase the immovable property, resource or easement rights on them, which are decided to be expropriated, by paying the price in cash or, if it is made according to the second paragraph of Article 3 of this Law, in instalments according to the procedures in this paragraph and by bargaining, or to take over by bartering with another immovable property belonging to the administration.” However, there is no decision or request letter duly notified to the client by the defendant administration.
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Pursuant to Article 46 of our Constitution, “The State and public legal entities are authorised to expropriate all or part of the immovable properties in private ownership and to establish administrative easements on them, according to the principles and procedures specified by law, provided that they pay their real value in advance, in cases where public interest requires it.” However, the respondent administration has not made any payment to the client for the loss of value from the date of expropriation until today. The section in question has been in public use as a staircase for years. Until this time, the client has not even been offered to pay the price. This situation is a violation of the client’s right and is a transaction that touches the essence of the property right.
As a result of the examinations to be made by your court, it will be understood how great the damage is when the values of other precedent immovables, the location of the immovable, its effect on transportation and other factors are taken into consideration. The immovable property, of which the client is a condominium owner, has been devalued by the administration.
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Pursuant to the established case law, the following elements must be met: the expropriation by the administration with the authority of expropriation without expropriation, the expropriation must have been made for public benefit, the expropriation must be unlawful and the expropriation must be permanent. In the case subject to the lawsuit, since no expropriation decision was notified to the client, the built staircase was allocated to the public, the expropriation was not notified to the client, his consent was not obtained and the price was not paid, the built staircase has been in public use for years and has become permanent, all the conditions sought by the procedure and the law have been met; it has become fixed that the defendant administration has encroached on the client’s right by expropriation without expropriation.
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The client’s right to claim is not subject to a 20-year deprivation of rights period. Article 38 of the Expropriation Law No. 2942 titled “Prescriptive Period” stipulates that: “The right of the owner, possessor or heirs of the immovable property, which has been expropriated, but the transactions have not been completed or the expropriation has not been carried out at all, and which has been allocated to public service or allocated to a need for public benefit and on which a facility has been built, to file any kind of lawsuit related to this immovable property shall expire after twenty years.
This period starts from the date of seizure of the immovable property.” However, the said decision was cancelled by the Constitutional Court’s decision dated 10/04/2003, numbered 2002/112 Main and 2003/33 Decision, published in the Official Gazette dated 04/11/2003 and numbered 25279. Consequently, it is clear that the present lawsuit is not subject to a period of 20 years.
The seizure in question does not fall within the scope of Law No. 221, does not fall within the scope of Article 18 of the Zoning Law, does not fall within the scope of Article 35 of the Expropriation Law and does not fall within the scope of urgent expropriation. Thus, the action of the administration subject to the lawsuit turns into an ordinary tort.
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Pursuant to Article 49 of the Turkish Code of Obligations, “Whoever causes damage to another by a defective and unlawful act is obliged to compensate for this damage. Even if there is no legal rule prohibiting the damaging act, the one who intentionally harms another by an immoral act is also obliged to compensate for this damage.” For the reasons explained and in accordance with the law, the defendant administration has the obligation to compensate the damage caused to the client.
As stated in paragraph 6 of the provisional article 6 added to the Expropriation Law No. 2942, there is an obligation to apply for reconciliation within the period between 1956 and 1983, and if reconciliation is not achieved, it is obligatory to apply for reconciliation first and if reconciliation cannot be achieved, it is obligatory to file a price determination lawsuit within three months from the date of the issuance of the disagreement report. However, neither the condition of filing a lawsuit for conciliation before filing a compensation lawsuit nor the limitation period of three months is required in compensation lawsuits for compensation for expropriation without expropriation to be filed after the period after 1983. The staircase built by the defendant administration through expropriation was built in the year 20… and is not subject to the condition of applying for conciliation and the three-month limitation period.
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During this period when the client was the owner of the immovable property in question, the expropriation process was not duly notified to him, the uncontested price was not paid and thus the expropriation process was not duly completed. As a result of this procedural and illegal act of the administration, the client, who is the landlord of the occupied immovable property, has the opportunity to claim compensation arising from expropriation without expropriation.
With the decision of the 5th Civil Chamber of the Court of Cassation dated 11/12/2018, 2017/15653 Main and 2018/24250 Decision, “1.389,06 m2 of the immovable was actually seized by passing a road, and in terms of project integrity, it should be accepted that the remaining part of the immovable was actually seized. For this reason, it is necessary to rule for the price of the entire immovable property and to establish a registration and cancellation judgement.” In this way, since the value determination should be made by taking into account the integrity of the project, we request your Court to first determine the damage suffered by the client.
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Since the defendant administration ……. Municipality has seized the parcel subject to the lawsuit without expropriation in order to avoid the expropriation price and my client’s right to benefit from the parcel has been eliminated, it has become necessary to file this lawsuit for the payment of the compensation of TL 000.00 to the client together with the interest to be accrued from the date of the lawsuit, without prejudice to our rights regarding the excess.
LEGAL GROUNDS : CCP, TMK, TCO, Expropriation Law, Law of Attorneys and other relevant legislation
EVIDENCE :
……. Asking the relevant information from the Expropriation Branch Directorate of the Municipality Real Estate and Expropriation Department, …… X City Municipality Department of Zoning and Urbanisation Department Zoning Directorate to be asked by the Court about the zoning status of the immovable, Yenimahalle Regional Land Registry Directorate to be asked by your Court for the title deed records that may be a precedent for the immovable, Yenimahalle Cadastral Directorate to be asked by your Court for the diameter and sketch of the immovable, Requesting the property tax values by the Yenimahalle Municipality Directorate of Financial Affairs, photographs of the immovable, land registry records, on-site discovery, expert examination, other documents before the official authorities, the documents listed and all other evidence
CONCLUSION AND REQUEST :
For all the reasons explained above and to be taken into consideration by your Court ex officio,
1- Located in Ankara Province, Yenimahalle District, …. Ada … No. …. m2 immovable in the possession of the parcel …… Municipality due to the seizure of the immovable …. m2 by the defendant administration …… Municipality Presidency without expropriation, without prejudice to our rights regarding the surplus, the compensation of 000,00 TL for the immovable value for now, with interest to be accrued from the date of this lawsuit, to be taken from the defendant administrations and given to our client,
2- We request and demand by proxy that the judicial expenses and attorney fee be decided to be charged to the other party. 30/12/2021
Representative of the Plaintiff A…. B…
Lawyer
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