Expropriation of private property

Hello,

can anybody tell me what rights I have as property owner in Turkey if the council plans to expropriate some of my land in order to expand the public road?

Would I be entitled to receive cash compensation for the value of my land?

Apparently there is a new law allowing councils the right to offer 'shared ownership' instead of cash compensation. They call this 'article 18' (property law). This would mean that somebody else might be entitled to joint-ownership of my property. Sounds rather bizarre!

Is this really true?

Many thanks for your advice,
Isabel
Would appreciate highly if anybody

Hi,

If the council takes a decisioin of expropriating your land, you are offered current market value of the land that is similar other lands around your real estate. But if you think that the offered pay is so lower, you can fill a suit about incresing the pay at civil court of first instance.
The most importantly, and the most debated subject is article 18 of Zoning Law (İmar Kanunu). And unfortunately this artisle is still in force. According to that " If the municipality consider it necessary, it can use private's land until up to %40 of each land to construct roads, parks and etc.
But of course there are some other conditions to apply that article. I advise you to consult an zone-expert lawyer if you face that kind pf problem. Because of the difficulty and complexity of that matter, you will need a knowledgeable attorney.

Best Regards,
Av. Oktay

Greetings,

I want to verify something about the last post.According to the expropriation Act, amended as of year 2001, the authority initiates the expropriation procedure; initialy determines the value and notifies this to the property owner. In case of controversy as regards the value, as opposed to the preceding provisions of the Act, the state body files the suit instead of the property owner so as to have the actual value specified by the Court.

The Zoning Act stipulates in the Article 18 that for the purposes of planning and the housing requirements, the municipalities, for the contiguous zones, or the governers office, for the rural areas, without the requirement of a consent of the property owners, are entitled to join the terrains or areas whether involving premises or not with eachother or road surpluss or the immovables belonging to state , to seperate them as parcels or blocks consistent with the development plans , to allocate and distribute them to the property owners as sole or joint or commonhold ownerships.

Many thanks for your responses.

This article 18 doesn't seem to make sense whatsoever. Doesn't the individual have any ownership rights - human rights? And what about the value of the property - can they just separate parcels and allocate joint-ownership as they please?

I didn't know that such dictatorship existed in Turkey. Can the absurdity of this 'article 18' be challenged at high court or European court? Who would have to pay for the court costs?

Kind regards,
Isabel

Isabel,

Alıntı: Doesn't the individual have any ownership rights - human rights?

Article 35 of the Turkish Constitiution :" Everyone has the right to own and inherit property.These rights may be limited by law only in view of public interest.
The exercise of the right to own property shall not be in contravention of the public interest."

Article 12 : Everyone possesses inherent fundamental rights and freedoms which are inviolable and inalienable.

Article 16 : The fundamental rights and freedoms of aliens may be restricted by law in a manner consistent with international law.

Alıntı: I didn't know that such dictatorship existed in Turkey

Your concerns as regards the legality of the Art. 18. are considerable. Notably, Article 18 confers the state authorities a comprehensive power regarding zone development and planning. One may call this application, in a sense, as a gratutious expropriation of private property. However, Turkish Constitutional Court dismissed the claim of unconstitutionality of Art. 18 in a decision on these grounds: "Article 18 of the Zone Development Act envisages not a cessation but a fair limitation of private property in line with the public interest.Additionaly, the restriction applied is compensated by the valuable improvements of the property."

European Convention On Human Rights stipulates that " No one shall be deprived of his possessions except in the
public interest and subject to the conditions provided for by law and bythe general principles of international law."

As you can see, the enjoyment of a fundamental right may be restricted upon "general interest" and several specific grounds, not only in Turkish but also in the international law. Turkey is not a "dictatorship" but a country ruled by a secular and democratic law. You may seek judicial observation of legality of official acts in Courts(Courts of Administration). You may also recourse to the European Court Of Human Rights in case you are not pleased with the judgement rendered in Turkey, in the six months after the last domestic remedy here is exhausted.

Hi there,

Can anybody give me any advice on how much the lawyers are allowed to charge and when I am expected to pay their fees. In England I can expect an invoice clearly stating the exact fees, whereas in Turkey this doesn't seem to be the case.
Also, can a lawyer request the full sum before the courtcase and the verdict?

Thanks for any advice.

Alıntı: Yazan isabel Hi there, Can anybody give me any advice on how much the lawyers are allowed to charge and when I am expected to pay their fees. In England I can expect an invoice clearly stating the exact fees, whereas in Turkey this doesn't seem to be the case. Also, can a lawyer request the full sum before the courtcase and the verdict? Thanks for any advice.

I would say a lawyer would only and should ask the fees in advance if he has some doubt that he may not be able to collect the fees from the client in the future. This may be due to client's residing abroad, not having sufficient funds, etc. Actually, fees usually agreed by a written agreement but even if there is none, the fees are calculated according to Lawyers' Minimum Fee List announced by the Unuion of Turkish Bars every year and/or according to Lawyers Act. It is possible to get into a fee arangement different from the amounts prescribed in the above mentioned fee list but there are restrictions by law. Please feel free to raise all your questions in detail so that we may give you a better advice.

''fees are calculated according to Lawyers' Minimum Fee List announced by the Unuion of Turkish Bars every year and/or according to Lawyers Act...''


Here are a few questions, I hope someone might be able to answer....

1. In regards to the above mentioned 'Lawyers Mininum Fee List', does anyone know how I could get hold of this list to verify whether I am charged the appropriate fee? And what is this list called in Turkish?

2. Is there a set fee for taking my case through the different courts or can the lawyers charge whatever they like?

3. What is the chance of success, if I wish to question the legality of article 18 in court and try for this to be re-considered by the turkish parliament? The end of the day, if private property is needed for road development, then surely the appropriate fee should be paid for this by the relevant council. It is not right to be confronted with joint-ownership instead.


4. Should I wish to take my case to the European Court, how binding would their rulings be in Turkey?


This case is rather complex and I have so many questions. I appreciate any response.

Many thanks,
Isabel

Alıntı: Yazan Isabel 1. In regards to the above mentioned 'Lawyers Mininum Fee List', does anyone know how I could get hold of this list to verify whether I am charged the appropriate fee? And what is this list called in Turkish?Isabel

This list is called "Avukatlık Asgari Ücret Tarifesi." You can find this list at Istanbul Bar's website with the following link:

http://www.istanbulbarosu.org.tr/Doc...retcizelge.htm

You should bear in mind that a lawyer is not obliged to get into a fee agreement according to this list. In other words, this list does not set criteria to assess whether you are charged the appropriate fee. Then what is this list for? Firstly, this list will be taken into account when the judge calculates the lawyer fees attributable to the parties of the action when it comes to an end. Assume you claimed 50,000 TL in the action and the judge approved only 20,000 TL. In this case, you will be awarded lawyers fees for the approved part of your claim, and the defendant will be awarded fees for the refused part of your claim according to this list. According to the calculation formula in Section 3 of this list, for the above example, you would be awarded 2.400 TL for the approved 20,000, and the respondent would be awarded 5.400 TL for the refused 30,000, VAT included for both. Please bear in mind that the fees decided by the court as above will belong to lawyer (not set off from the fee you agreed with your lawyer) unless you agreed to the opposite in writing with your lawyer. Secondly, this list will be taken into account while calculating the fees you have to pay to your lawyer if there is no written fee agreement. Actually in such case, the fees are to be calculated according to art. 164 of Lawyers Act between 10 to 20 % of the amount awarded in the final judgment. (In this context, the final judgment means local court’s judgment approved by the Appeal Court, or the appeal procedure is closed.) However, this amount in any case can not be less then the fees mentioned in Section 3 of this list. On the other hand, the lawyer and the client may agree on a fee based on percentage not exceeding 25 % of the amount related with the action, or of the amount to be awarded to the principal. If the parties agreed on a percentage fee higher than this limit, the fee agreement is not invalid but the percentage is reduced to 25 %. Where the parties did not agree on a percentage basis but a fixed amount, this fixed fee is valid even if it exceeds 25 %. The only exception is the fixed fee being against morals and good faith according to art. 19 of the Turkish Code of Obligations, for example the amount payable to the lawyer is more than what the client would get in the end of the action.

Alıntı: Yazan Isabel 2. Is there a set fee for taking my case through the different courts or can the lawyers charge whatever they like?

Isabel, please explain what you mean by different courts. The lawyers can not charge whatever they like. According to art. 171 of Lawyers Act, the lawyer must finalise the lawsuit even if there is no written agreement. That is to say, once your lawyer initiated the action, he can not stop following it by claiming that you did not pay him the fees. In order to do that, there must be a written agreement indicating when and how the fees will be payable. No doubt that he can resign but in that case he is not entitled to fees if resignation is not due to just reasons, for example his fees are not paid in due time as stipulated in the written fee agreement. If there is no written fee agreement, he can not claim the fee unless he finalised the action. According to art. 173 of Lawyers Act, the lawyer fee agreed by the principal and the attorney is specific to that particular action. Any other lawsuit, even if it is related with the main action is subject to additional fee.

Hi I.C.H,


Many thanks for the detailed explanation in regards to lawyers fees. I suppose I will have to wait and see what happens next and act accordingly.

However, I am considering taking this case as far as it takes. How binding are European court rulings in Turkey?
Any ideas or suggestions on this matter would be appreciated?

Thank you,
Isabel