Unlawful Construction

Scope and Types of Unauthorised Construction

In legal doctrine and scholarship, unlawful construction is examined in three different forms: construction on another’s land with one’s own materials, construction on one’s own land with another’s materials, and construction on another’s land with another’s materials.

• Construction on another’s land with one’s own materials
• Construction on one’s own land with another’s materials
• Construction on another’s land with another’s materials

By virtue of the way it is regulated and its spirit, the institution of unauthorised construction has an extensive field of application. Owing to this broad field of application, the range of judicial decisions is also very wide. In our study, after giving a general definition of the concept of unauthorised construction, we will examine the types of unauthorised construction as addressed in legal doctrine and scholarship, namely construction on one’s own land with materials belonging to another, construction on another’s land with one’s own materials and, finally, construction on another’s land with another’s materials, in the light of settled and recent Court of Cassation decisions.

In General: Movable and Immovable Structures

Pursuant to the second paragraph of Article 718 of the Turkish Civil Code No. 4721, ownership of land extends to the things built on that land. What is meant by “things built” cannot be understood directly from Article 718 of the TCC. The notion of a thing built (a structure) can be resolved by reference to Article 728 of the Code. According to that article:

“Light structures such as huts, kiosks, arbours, sheds and the like built on another’s land without the intention of permanence belong to their owners. Such structures are subject to the provisions on movable property and are not shown in the land register.”

Turkish Civil Code, Art. 728

Such structures are referred to as movable structures. Ownership of a movable structure does not follow the ownership of the land on which it stands but belongs to the person who built it, and the provisions on ownership of movable property apply.[1] As is clear from the wording of the Code, the definition of a movable structure has been drafted without setting a precise boundary and is open to interpretation. This matter has also been debated in doctrine; however, in broad terms all views have converged within the following framework: what gives a construction the character of a movable structure is, first and foremost, the intention of its builder as to the temporary nature of that construction. This intention can be inferred from certain facts. By way of example, a site office set up for a construction project, or a lane built in a café for bowling, are examples of movable structures.[2]

For a structure to be subject to immovable property ownership, it makes no difference whether it was built by the owner or by a third party. For this reason, the fact that a structure has been built with materials belonging to the owner or to someone else does not prevent the structure from belonging, in material terms, to the owner of the land. The first paragraph of Article 722 of the TCC reads: “– Where a person uses another’s materials in a structure on his own land, or his own or another’s materials in a structure on another’s land, those materials become an integral part of the land.” as provided above.

The only valid condition for structures to be subject to immovable property ownership is that they have been built to remain more or less permanently and durably. The condition that structures must be built with the aim of remaining permanently in order to fall within the material scope of immovable property ownership derives from the a contrario reading of Article 728 of the TCC. Whether a structure was built with the purpose of remaining permanently will be determined by the motive of the person who built it. Since motive is a subjective criterion, its existence must be inferred from external facts. Whether the structure was built permanently or temporarily must be established on the basis of external facts and the circumstances of the specific case. Such external facts and circumstances may generally include the degree of attachment between the land and the structure, the quality and type of materials used, and the purpose for which the structure is allocated.[3]

• Degree of attachment between the land and the structure
• Quality and type of the materials used
• Intended purpose of the structure

As with movable structures, the Turkish Civil Code does not clearly state what is to be understood by structures falling within the ownership of immovable property. The legislator regulated structures forming the subject of immovable ownership in the provisions of Articles 684 and 722 et seq. of the Turkish Civil Code, and expressed this more clearly in Article 726 in particular.

As can be understood from the provisions listed; a structure, is any kind of construction built into, under or on the land, intended to remain there more or less permanently, and fixed to the land by artificial and technical means.

The Concept of Unauthorised Construction

The Turkish Civil Code “unlawful construction (structure)” . By contrast, the TCC regulates the fact that, in a structure on a plot of land, materials belonging to a person other than the landowner have been used on the basis of a legal relationship that is not valid between the parties, together with the legal consequences of that fact.

The matter regulated under Articles 722–724 of the Turkish Civil Code is described in practice and in doctrine “unlawful construction (structure)” . This characterisation encompasses three different situations. Accordingly, a structure built without a valid legal relationship with another’s materials on one’s own land, with one’s own materials on another’s land, or with another’s materials on another’s land is referred to as “unlawful construction” or “unlawful structure” is the term used.[4] In this case, unlawful construction arises in three different forms: first, construction on one’s own land with another’s materials; second, construction on another’s land with one’s own materials; and finally, construction on another’s land with another’s materials.

Rights of the parties by type of unauthorised construction

Construction on One’s Own Land with Materials Belonging to Another

In accordance with the accession (integral part) rule of the Turkish Civil Code, where construction is carried out on one’s own land with another’s materials, the conclusion in principle will be that the construction belongs to the landowner. However, this resolves the matter only from the landowner’s perspective and confers no right on the owner of the materials, which have lost their movable character. For this reason, the matter is regulated in Articles 722 et seq. of the TCC. This regulation provides for the right of the owner of the materials to demand that the construction be dismantled and the materials returned, the right of the owner of the materials to compensation, and the right of the owner of the materials to demand the transfer to him of ownership of the land together with the construction on it.

1. Request for removal of the construction and delivery of the materials
2. Compensation
3. Request for transfer of ownership of the land together with the construction on it

Right of the Owner of the Materials to Request Removal of the Construction and Delivery of the Materials

The owner of the materials may request that the materials be removed and delivered to them at the landowner’s expense. This claim is not in the nature of a vindication action but in the nature of a personal action. For this reason, the owner of the materials can neither remove the materials themselves nor directly seize the materials. This is because the materials built in have become an integral part of the land and, therefore, the property of the landowner. For these reasons, the owner of the materials may only request the landowner to remove the materials and return them.

However, where the landowner fails to perform the act despite having been requested to do so, the owner of the materials may, under the general provisions of the Code of Obligations, request the judge to authorise the owner of the materials to remove them. Apart from such authorisation, they may also bring an action for damages on account of non-performance of the obligation.

In addition to these explanations, for the right to be claimed, the materials must have been used without the consent of their owner and the dismantling of the construction must not cause excessive damage.

Conditions of the Request for Removal

The first condition for the owner of the materials to be able to demand that the construction be dismantled and the materials returned to him is that the owner of the materials has not given consent. This is expressly regulated in the third paragraph of Article 722 of the TCC.

Where there is express or implied consent, the owner of the materials will have no such right. Indeed, an owner of the materials who is aware, while construction is ongoing, that a structure is being created and who impliedly consents by remaining silent without reasonable excuse, or at least by failing to issue a warning for it to be stopped, will not be able to demand that the materials be removed and returned to him. However, the silence of an owner of the materials who learns of the situation only after the structure has been completed will not give rise to implied consent.[7]

The second condition for the owner of the materials to be able to demand that the construction be dismantled and the materials returned to him is that the dismantling of the construction must not cause excessive damage. Refraining from ordering the dismantling of a construction where its removal would cause excessive damage is linked to the principle of preserving created value. The key issue here is what is to be understood by excessive damage. In doctrine, three different approaches have generally been considered in determining such damage: the view assessing it from the parties’ perspective, the view assessing it from the perspective of the general economic interest, and the determination of damage by way of a comparative assessment.[8]

• View assessing it from the perspective of the parties
• View assessing it from the perspective of the general economic interest
• Determining the damage by way of comparative assessment

In practice, however, a uniform formula has been developed for this determination according to the settled case law of the Court of Cassation. Decision of the 1st Civil Chamber of the Court of Cassation dated 12/05/2004, Docket No. 2004/5095, Decision No. 2004/5584:[9] “…It should be stated at the outset that the concept of ‘excessive damage in demolition’ is not defined in the law. Moreover, there is no consensus on this concept either in scholarship or in judicial practice. However, there is no doubt that, in applying Article 722/2 of the Civil Code (Article 648/2 of the former Civil Code), the general interest in preserving the building that has been created cannot be disregarded. Nevertheless, the building must also be assessed (subjectively) from the perspective of the claimant landowner, and a fair result must be reached by striking a balance of rights (interests). As a rule, the assessment of whether removal (demolition) would cause exorbitant damage lies with the judge. In exercising this discretion, the judge will of course make use of the technical information and opinions provided by the expert or experts. However, the conclusion they reach in this respect (as to whether exorbitant damage would arise) is not binding on the judge.” The decision reads as above.[10]

Right of the Owner of the Materials to Compensation

A landowner who builds on his own land with another’s materials must compensate the owner of the materials for the loss suffered as a result of the materials leaving his possession. Where the owner of the materials does not wish to exercise the other two rights granted to him, or where the legal conditions required for their exercise are not met, he may claim fair compensation from the landowner. The compensation will in principle be equal to the sale value of the materials used. However, the judge will determine the amount of compensation primarily according to whether the landowner acted in good faith and the circumstances of the specific case.

Paragraph two of Article 723 of the Turkish Civil Code regulates the determination of the amount of compensation depending on whether or not the landowner acted in good faith. Good faith in this provision means that the landowner did not know that the materials did not belong to them or could not have known it in the circumstances. Where the owner of the materials knew that their materials were being used or impliedly consented to this, the landowner will be considered to be in good faith. Where the landowner, in bad faith, carries out construction on their own land using materials belonging to another, they are obliged to compensate all the losses suffered by the owner of the materials as a result. In addition, the increase in value of the land resulting from the construction also falls within the scope of the compensation.

To summarise the content of the compensation: it includes the value of the materials used, the time lost by the owner of the materials in procuring new materials, the amount of compensation and contractual penalty that they had to pay to others because they were unable to fulfil their commitments as a result, and the increase in value of the land resulting from the construction. This action is subject to the limitation period for unjust enrichment and, depending on the circumstances, for tort.[11]

• The value of the materials used
• The time lost by the owner of the materials in procuring new materials
• The amount of compensation and contractual penalty they had to pay to others because they were unable to fulfil their commitments
• The increase in value of the land resulting from the construction

Right to Request Transfer of Ownership of the Land Together with the Construction

Where the owner of the materials builds with his own materials on another’s land without any contractual relationship with the landowner, Article 724 of the TCC will apply. Under that provision, if the value of the structure clearly exceeds the value of the land, the owner of the materials acting in good faith may, against appropriate compensation, demand that ownership of the whole of the land or of a sufficient part of it be transferred to him. This option has also been granted to the landowner acting in good faith. Granting this option to the landowner as well is an appropriate provision, because the construction has been carried out by the owner of the materials on the land of a landowner acting in good faith. As a result, ownership of the materials, which have become an integral part of the land, has passed directly to the landowner. It is the owner of the materials, whether in good faith or not, who has brought about this situation, and granting such an option solely to the owner of the materials would hardly be a fair approach.

Once the conditions of Article 724 of the Turkish Civil Code, namely good faith and a clear excess in value, are fulfilled, a formative right (yenilik doğuran hak) arises in favour of the requesting party for the transfer of ownership of the land to the owner of the materials. In order to exercise this right, the removal of the materials must not previously have been requested, or such a request must not have been rejected, and the requesting party must not have claimed compensation under Article 723 of the TCC. When the requesting party exercises this right by means of a unilateral declaration of intent addressed to the other party, a contractual relationship arises between the landowner and the owner of the materials concerning the transfer of ownership of the land. The owner of the materials becomes obliged to pay appropriate compensation, while the landowner becomes obliged to transfer ownership of the immovable property to the owner of the materials.[12]

If the reciprocal obligations cannot be performed by agreement of the parties, the requesting party will bring an action for ownership of the land to be granted to the owner of the materials. The court will determine the appropriate compensation to be paid to the landowner and, following payment of the compensation, ownership of the land will be transferred to the owner of the materials. This judgment is a formative judgment, and the owner of the materials will acquire ownership upon the judgment becoming final, prior to registration. Registration here will serve a declaratory function.[13]

The process described in the article consists of the following stages:

1. Fulfilment of the conditionsOnce good faith and a manifest excess in value are established, a formative right arises in favour of the requesting party.
2. Declaration of intentThe requesting party exercises this right by a unilateral declaration of intent addressed to the other party; an obligational relationship arises concerning the transfer of ownership of the land.
3. DavaIf the reciprocal obligations cannot be performed by agreement of the parties, the requesting party brings an action.
4. Payment of compensationThe court determines appropriate compensation; ownership of the land is transferred after payment of the compensation.
5. Finality and registrationThe owner of the materials acquires ownership upon the judgment becoming final, before registration; registration is declaratory.

Construction on Another’s Land with One’s Own Materials

Where a person unlawfully builds on another’s land with his own materials, both the landowner and the owner of the materials have certain rights. The landowner has the right to demand the removal of the materials and compensation for the losses arising from this unlawful construction. The owner of the materials, for his part, will have the right to claim compensation and to demand that ownership of the land be transferred to him.

Right of the Landowner to Request Removal of the Construction

Under the third paragraph of Article 722 of the Turkish Civil Code, where construction is carried out by the owner of the materials without the landowner’s consent, the landowner may demand removal of the materials at the expense of the owner of the materials, provided that such removal does not cause excessive damage.[14]

Where the dismantling and removal of the materials would cause excessive damage, the landowner cannot demand their removal. The damage arising from the dismantling and removal of the materials is determined as follows: if the loss of value that would occur in the land and the materials exceeds the benefit the landowner would obtain from the removal of the materials, it must be concluded that removal would cause excessive damage. In other words, the damage that removal of the materials would cause to the owner of the materials and to society must be weighed against the benefit the landowner would obtain from the removal, and if the outcome is that the structure should not be removed, removal of the materials will cause excessive damage.[15]

Right of the Landowner to Claim Losses Arising from the Unauthorised Construction

We mentioned above that, where the owner of the materials builds without obtaining the express or implied consent of the landowner, the landowner has the right to demand the dismantling and removal of that construction. If, after the materials have been removed at the landowner’s request, the landowner still has a loss, he may claim compensation for that loss under the rules on tort or agency without authority (vekaletsiz iş görme). Furthermore, under Article 995 of the TCC, he may also claim the fruits and, where there has been use, compensation for unlawful occupation (ecrimisil).[16]

Right of the Owner of the Materials to Claim Compensation

Where the landowner does not request the removal of the construction, or where this request is rejected because it would cause excessive damage, the construction will become an integral part of the land. In that case, the landowner will be unjustly enriched. On the basis of this enrichment, the landowner will be required to pay a certain amount of compensation to the owner of the materials. Under the third paragraph of Article 723 of the TCC, it is stated that the amount of compensation will vary according to whether or not the owner of the materials acted in good faith.

An owner of the materials who did not know, or was not in a position to know, that the land on which the construction was carried out did not belong to him is in good faith. Accordingly, where express or implied consent is considered to have been given in respect of the construction concerned, this person is also deemed to be in good faith.[17] This compensation is based on unjust enrichment. In determining this compensation, the value of the materials on the date of the action is taken as the basis in particular. Where the owner of the materials acted in bad faith, however, under the second paragraph of Article 723 of the TCC the amount awarded by the judge may not exceed the minimum value that the materials have for the landowner. Since the provision is not clearly worded, it is open to interpretation. According to the Court of Cassation, however, it may not exceed the minimum value that the construction represents for the landowner.[18]

Where both the owner of the materials and the landowner acted in good faith, the amount of compensation to be paid by the landowner must be fair compensation. The determination and assessment of fair compensation fall within the discretion of the judge. Although at first glance the wording of the Code suggests that fair compensation is to be determined solely for the materials, the compensation must also include expenses incurred other than for the materials, construction costs and the value of the labour.[19]

Where the owner of the materials acted in bad faith, the compensation to be paid by the landowner will be the minimum value of the materials. In this case, the compensation to be assessed by the judge may not exceed the subjective value that the construction represents for the landowner. Pursuant to this provision, the objective increase in the value of the land will not be taken into account.[20]

Compensation payable to the owner of the materials depending on good faith

Right to Request Transfer of Ownership of the Land and the Construction

A person who builds on another’s land with his own materials may demand the transfer of ownership of the land together with the construction on it. In order to exercise this right, the owner of the materials must be in good faith. An owner of the materials acting in good faith may demand the transfer of ownership of the land where the value of the construction clearly exceeds the value of the land. The land may be transferred to him only against appropriate compensation to be paid by the owner of the materials.

Construction on Another’s Land with Another’s Materials

The Turkish Civil Code does not regulate construction on land belonging to another with another’s materials. For example, a worker employed on one construction site may mistakenly use materials from another construction site nearby in his own construction, and this may come to light later. Doctrine considers that, where such a situation exists, the provisions on unjust enrichment and tort should be applied together. In addition to the view of doctrine, the provisions on agency without authority should also be applied. That said, it should also be noted that the construction so carried out will belong to the landowner.[21]

• Unjust enrichment
• Tort
• Agency without authority

Rights of the Landowner

In order to free himself from the claims of the owner of the materials or of the builder, the landowner may dismantle the construction at the builder’s expense and return the debris to the claimant. Furthermore, if any damage has occurred in the course of the construction and dismantling works, the landowner may claim compensation from the builder. However, if the landowner ratifies the work carried out, the provisions on agency will apply. In that case, he will be treated as if he had built on his own land with another’s materials.[22]

Rights of the Owner of the Materials

The owner of the materials may bring an action for compensation against the landowner. If the landowner knew that the materials belonged to another, or was at fault in using those materials, this compensation may also be claimed under the provisions on tort. However, if there is no contract between them and the landowner is not at fault (in good faith), the loss may be compensated under the provisions on unjust enrichment. In this case, the landowner is liable to make restitution to the extent of the increase in their assets. However, if the landowner has paid a price for the work to the person who carried out the work on the landowner’s land using another’s materials, no second payment is made to the owner of the materials.

The owner of the materials also has a number of claims against the person who carried out the construction. If there is any contract between the owner of the materials and the person who carried out the construction, compensation may be claimed for breach of that contract. If there is no such contract, the person who carried out the construction has misappropriated the other person’s materials, and liability in tort may therefore be pursued. The provisions on unjust enrichment apply only if no fault can be attributed to the person who carried out the construction and the landowner has paid a price to that person.[23]

Rights of the Person Who Carried Out the Construction

Where the landowner does not approve the dismantling of the construction, or where the construction has been carried out for the landowner’s benefit, the landowner will, depending on the requirements of the specific case, be liable to reimburse the builder’s necessary and useful expenses together with interest and, if necessary, to compensate the loss as assessed by the judge. However, if the landowner is in good faith, he is liable under the provisions on unjust enrichment only to the extent of the increase in his assets.

Bibliography and Footnotes

Bibliography

• AKINTÜRK, Turgut: Eşya Hukuku, 2009, Istanbul.
• AKİPEK; Jale: Türk Eşya Hukuku, 1971, Ankara.
• ATAAY, Aytekin: Haksız İnşaat, 1959, Istanbul.
• EDİS, Seyfullah: Kendi Malzemesiyle Başkasının Taşınmazında İnşaat, 1977, Ankara.
• EREN, Fikret: Mülkiyet Hukuku, Ankara, 2011.
• ERKAN, Vehbi Umut: Haksız Yapı ve Arazi Mülkiyeti, AÜHFD, 2014.
• GÜRSOY, Kemal: Türk Eşya Hukuku, 1978, Ankara.
• İNAL, Emrehan: Haksız Yapı Kavramı ve Haksız Yapının Kaldırılması, İÜHFM Vol. 70, No. 1.
• KARAHASAN, Mustafa Reşit: Türk Eşya Hukuku, Vol. 1, 1991, Istanbul.
• Kazancı Case Law Software
• OĞUZMAN, Kemal; SELİÇİ, Özer; OKTAY, Saibe: Eşya Hukuku, 18th ed., Istanbul, 2015.
• SAYMEN, Ferit; ELBİR, Halid: Türk Eşya Hukuku, 1954, Istanbul.
• SİRMEN, Lale: Eşya Hukuku, 2013, Ankara.
• TEKİNAY, Selahattin Sulhi; AKMAN, Sermet: Eşya Hukuku, 1989, Istanbul.
• UYAP Legislation and Case Law Database

Dipnotlar

[1] OĞUZMAN, Kemal; SELİÇİ, Özer; OKTAY, Saibe: Eşya Hukuku, 18th ed., Istanbul, 2015, p. 478.

[2] EREN, Fikret: Mülkiyet Hukuku, Ankara, 2011, p. 346.

[3] AKINTÜRK, Turgut: Eşya Hukuku, Istanbul, 2009, p. 520.

[4] İNAL, Emrehan: Haksız Yapı Kavramı ve Haksız Yapının Kaldırılması, İÜHFM Vol. 70, No. 1, p. 246 245 – 276, 2012, p. 246.

[5] ERKAN, Vehbi Umut: Haksız Yapı ve Arazi Mülkiyeti, AÜHFD, 2014, pp. 449-478, p. 453.

[6] SAYMEN, Ferit; ELBİR, Halid: Türk Eşya Hukuku, 1954, Istanbul, p. 345.

[7] TEKİNAY, Selahattin Sulhi; AKMAN, Sermet: Eşya Hukuku, 1989, Istanbul, p. 816.

[8] İNAL, p. 264.

[9] Kazancı Case Law Software

[11] AKİPEK; Jale: Türk Eşya Hukuku, 1971, Ankara, p. 176.

[12] OĞUZMAN; SELİÇİ, OKTAY, p. 499.

[13] SİRMEN, Lale: Eşya Hukuku, 2013, Ankara, p. 422.

[14] OĞUZMAN; SELİÇİ, OKTAY, p. 492.

[15] KARAHASAN, Mustafa Reşit: Türk Eşya Hukuku, Vol. 1, 1991, Istanbul, p. 763.

[16] ATAAY, Aytekin: Haksız İnşaat, 1959, Istanbul, p. 78.

[17] Court of Cassation Assembly of Civil Chambers, 5/11/1952, Decision No. 169-140 (Kazancı Case Law Database)

[18] AKİPEK, p. 183.

[19] GÜRSOY, Kemal: Türk Eşya Hukuku, 1978, Ankara, p. 610.

[20] EDİS, Seyfullah: Kendi Malzemesiyle Başkasının Taşınmazında İnşaat, 1977, Ankara, p. 313.

[21] SAYMEN; ELBİR, p. 353.

[22] AKİPEK, p. 184.

[23] AKINTÜRK, p. 524.