Property Rights Violations in Post-Earthquake In-Situ Transformation Processes
The in-situ transformation practices implemented following the earthquakes of February 6, 2023, constitute far more than a reconstruction process; they have created a multi-layered legal regime that directly affects the boundaries of property rights.
In this process, particularly with respect to commercial properties, severe consequences emerge: reduction of actual use areas, loss of economic value, deprivation of rental income, and the practical elimination of property rights.
This study addresses the legal issues arising in such processes in a systematic manner and aims to provide a concrete roadmap for both practicing attorneys and individuals who have suffered loss of rights.
Legal Framework and Statutory Limits
In-situ transformation practices are conducted primarily under Law No. 6306 on the Transformation of Areas Under Disaster Risk and Regulation No. 7452.
Limits Established by Legislation
These regulations protect the following fundamental safeguards:
● Do not eliminate property rights.
● Do not override the owner's will.
● Do not convert majority decision into unlimited authority.
The simple majority principle is directed solely at initiating the process. It does not grant direct disposal authority over owners' independent unit rights, actual use areas, or economic values.
Types of Property Rights Violations
The most frequently encountered violations in practice fall under the following headings:
1. Reduction of actual use area
2. Exclusion of mezzanines, additions, or commercial areas from the project scope
3. Actual reduction of land share
4. Biased preparation of valuation reports
5. Transfer of area in favor of the contractor
6. Physical interference without owner consent
These violations often do not occur in isolation but rather emerge together and in an organized manner.
In such disputes, damage is not merely physical. Three distinct dimensions must be evaluated together:
1. Physical Damage
Reduction of use area within the project scope.
2. Economic Damage
Decrease in the market value of the property.
3. Income Loss (Rental Deprivation)
Loss of rental income from a commercial property.
Without evaluating these three elements together, actual damage cannot be established and a sound compensation calculation cannot be made.
Critical Importance of Evidence Preservation
The greatest mistake made in practice is filing suit without evidence preservation. As time passes, projects change, physical conditions disappear, and the opportunity to prove facts weakens progressively.
For this reason, an application for evidence preservation must be filed immediately under Articles 400 et seq. of the Code of Civil Procedure (HMK) (Law No. 6100).
Matters to Be Established in Preservation
● Actual use condition before the earthquake
● Area envisioned in the project after the earthquake
● Square meter and value difference between the two conditions
● Current market value of the property
● Comparable rental income
Connection to Public Infrastructure Activities
In some cases, public infrastructure projects (for example, underpass excavations) may be a determining factor in property damage.
In such instances, the following steps should be followed without direct attribution of fault:
● Technical data must be compiled.
● Soil and excavation effects must be examined.
● Causality must be established through expert opinion.
This phase is determinative for future full jurisdiction lawsuits and must not be omitted.
The Unjust Enrichment Dimension
One of the most critical legal issues in in-situ transformation processes is that interference with property rights must be evaluated not only within the scope of tort or breach of contract, but also within the framework of unjust enrichment.
Typical Transfer Patterns
In concrete disputes, the following structure frequently emerges:
● The actual use areas of some owners (most often commercial space holders) are reduced,
● In return, the contractor firm and/or other owners are provided with additional independent units, square meter advantages, or economic value transfers.
In this case, the matter is not merely a property violation; it is also a situation where a decrease in one party's assets corresponds to an increase in another party's assets.
Elements Required Under Turkish Civil Code Article 77
Turkish Civil Code Article 77: "If a person becomes enriched from another's property or labor without just cause, that person is obligated to return the enrichment."
Three fundamental elements are required for application of this provision:
1. Enrichment: The contractor or other owners obtaining economic gain
2. Impoverishment: The plaintiff owners suffering loss of use area, value, or income
3. Causal connection: Direct linkage between this gain and the loss
Typical Indicators of Unjust Enrichment
● Reduction of the plaintiff's commercial area while that same area is converted into other independent units
● Mezzanines, storage areas, or commercial use areas being disregarded in the project but reflected as advantages to other owners
● Low-cost project structuring providing implicit financing through the plaintiff's property
● Artificial land share transfers being effected through valuation reports
The fundamental question should be formulated as follows: If the plaintiff owners had not suffered this loss, could the defendant have obtained this gain? If the answer is no, this gain cannot be legally protected.
Strategic Sequence of Lawsuits to Be Filed
Success in such files depends on following the correct strategy and the proper sequence of legal steps:
1. Evidence preservation (HMK Art. 400 et seq.)
2. Action to prevent interference
3. Damages action
4. Unjust enrichment action
5. Full jurisdiction action against the administration
Incorrect sequencing can result in loss of the case, forfeiture of rights, or elimination of the opportunity to prove facts.
Common Mistakes in Practice
● Incorrect and expansive interpretation of the simple majority concept
● Insufficient scrutiny of valuation reports
● Filing suit without technical examination
● Failure to include rental loss in damage calculations
These mistakes produce consequences that are extremely difficult or impossible to remedy.
Conclusion and Assessment
In-situ transformation processes, unless the limits provided by legislation and judicial review mechanisms are effectively implemented, can cease to be a tool for protecting property rights and instead become an interference mechanism that practically eliminates this right and produces consequences that are difficult or even impossible to reverse.
Particularly when the simple majority principle is interpreted incorrectly and expansively, technical review processes are conducted superficially, and valuation activities lose objectivity, area reductions, economic value losses, and income deprivations occurring contrary to owners' consent evolve into systematic rights violations.
For this reason, in such disputes, the classical litigation approach proves insufficient; technical data and legal analyses must be conducted simultaneously and in an integrated manner. Without evaluating the property's condition before and after the earthquake, its actual use, architectural projects, soil and structural characteristics, and economic value elements together, it is impossible to reach a sound legal conclusion.
The evidence preservation institution in this context is not merely an auxiliary tool; it is the fundamental phase that determines the fate of the case. Damage calculation, moreover, must not be based solely on a superficial square meter difference but rather must be conducted within the framework of a comprehensive economic analysis taking into account the property's location, commercial nature, comparable values, and potential rental income.
On the other hand, if the resulting situation not only causes damage but also creates a gain for other persons, invoking the provisions on unjust enrichment becomes a legal necessity.
This area has ceased to be one that can be addressed through classical dispute resolution methods. It has become a specialized litigation area requiring the joint work of law, engineering, and economics disciplines, with mandatory high expertise and strategic approach requirements.