Occupancy Permit (İskân) — Application, Conditions and Procedure
A comprehensive legal guide to the occupancy permit requirement under Arts. 30-31 of Zoning Law No. 3194, the application documents, buildings that cannot obtain a permit, and criminal sanctions.
An occupancy permit, also known as an iskân certificate, is the official document certifying that a building's construction has been completed, that it is ready for use and that it was built in conformity with its permit. Governed by Articles 30 and 31 of Zoning Law No. 3194, the occupancy permit plays a critical role in completing a building's legal status. This article deals comprehensively with the application process for an occupancy permit, the documents required, buildings that cannot obtain one, and the legal sanctions.
What Is an Occupancy Permit and What Is Its Legal Basis?
An occupancy permit is the document of use issued under Zoning Law Art. 30 following the administration's examination establishing that a permitted building has been completed in conformity with the permit and its annexes. The certificate records the outcome of an examination of conformity with the permit and the technical rules at the date of inspection; it does not absolutely guarantee the absence of all latent defects, or earthquake performance or fire safety.
Why Is an Occupancy Permit Required?
An occupancy permit ensures that the administration examines whether the building has been completed in conformity with the permit and its annexes and whether there is any technical objection to its use. The certificate does not guarantee that all structural, electrical, mechanical and fire safety risks have been eliminated or that there are no latent defects.
The permit is significant in the conversion from construction servitude to condominium ownership and in certain utility connection or financing transactions. That said, the transfer of an independent unit held under a construction servitude is not invalid merely because condominium ownership has not been established; Zoning Law Art. 31 and the transitional and special provisions also apply to electricity, water and natural gas connections.
Under Zoning Law Art. 31, buildings for which an occupancy permit has not been granted or obtained may not benefit from electricity, water and sewerage services until a permit is obtained; units for which a partial permit has been obtained may benefit from those services. As regards the duration of the building permit, the completion date is the date on which the occupancy permit is granted. In private law, not all periods for defects, guarantee, insurance and compensation run automatically from that date.
How Is an Occupancy Permit Applied For?
When the building has been completed in whole or in its usable independent units, the owner, the permit holder or an authorised representative applies to the relevant administration. The administration examines the building's conformity with the permit and its annexes and whether there is any technical objection to its use. Where a complete application is not concluded within thirty days, permission is deemed to have been granted for the use of the whole building or the completed part; this is not an implied refusal.
What Documents Are Required?
Under Art. 65 of the Planned Areas Zoning Regulation, no documents may be required from the applicant other than a petition or standard form; reports from the technical supervisor or building inspection body as to the building's conformity with the permit and its annexes, the materials used and the absence of technical or health objections; the energy performance certificate; and photographs of the building. Information and documents in the administration's own records or accessible electronically may not be requested again from the applicant. Documents such as a fire safety report, a shelter report, a tax clearance or a social security clearance certificate listed in the regulation cannot be imposed on the applicant as a general list of additional documents; special technical checks are carried out by the relevant administration under its own legislation.
What Is a Partial Occupancy Permit and How Is It Obtained?
Under Art. 30 of Zoning Law No. 3194, where the parts of a building capable of separate use have been completed, a partial occupancy permit may be obtained for those parts. Partial occupancy permits are widely used, particularly in large-scale projects, residential estates and mixed-use buildings.
For a partial occupancy permit, the completed part must be capable of independent use and the common areas and infrastructure systems must be functional for that part. For example, a partial permit may be obtained for a completed block on a multi-block estate. The block's common areas, parking and landscaping must, however, be adequate for that block. Because a partial occupancy permit allows specified parts to be used before the whole building is completed, it offers considerable convenience in financing and use, particularly in large projects. That construction continues on the unfinished parts of a building with a partial permit may nevertheless create various problems for occupants.
Which Buildings Cannot Obtain an Occupancy Permit?
Under Arts. 30 and 32 of Zoning Law No. 3194, an occupancy permit is not granted in certain situations, namely:
- Non-conformity with the permit or its annexes: no permit is granted until the non-conformity is remedied; the procedures under Arts. 32 and 42 apply on their own conditions.
- Unpermitted building: the ordinary occupancy permit process cannot be operated for a building without a valid building permit; historic exceptions such as the Building Registration Certificate are subject to a separate regime.
- Incomplete building: where the building as a whole has not been completed, a partial permit may be considered only for a completed part that is capable of independent use and meets the statutory conditions.
- Deficiency in building inspection or technical conformity: the inspections required under Law No. 4708 and the checks required by special technical legislation must be completed. Which technical document is required is determined by the type of building and the relevant special legislation.
Legal Problems for Buildings Without an Occupancy Permit
The absence of an occupancy permit may create difficulties in utility connections, condominium ownership, sales and credit transactions; not every transaction is, however, automatically void. For electricity, water and natural gas connections, Zoning Law Art. 31, the transitional provisions and the exceptions in the relevant market legislation apply. As regards compulsory earthquake insurance, the categories of insurable building are determined by Law No. 6305 and the current tariff and practice; it cannot be said that a building without an occupancy permit can never be insured.
What Are the Criminal Sanctions for Not Obtaining an Occupancy Permit?
The mere failure to obtain an occupancy permit does not in every case give rise to demolition, an administrative fine or a conviction under TCK Art. 184. Zoning Law Arts. 32 and 42 apply to unpermitted construction or construction contrary to a permit and its annexes and to related administrative breaches; TCK Art. 184 applies to the acts defined in that article, namely constructing or procuring the construction of a building, connecting utilities to a site, and permitting unauthorised industrial activity. A building completed in conformity with its permit for which only the permit application has not been made is not the same as those acts.
Legal Remedies Where an Application Is Refused
An express refusal must be lawful as to reasons, competence, form, subject matter and purpose. The person concerned may bring an action for annulment, having regard under İYUK Arts. 7 and 11 to service and to the effect of any administrative application on the time limit, and, where loss has been caused, a full remedy action on its conditions. The general period for bringing an action is as a rule sixty days, but any special period and the effect of an application on the remaining period are calculated separately. A stay of execution is not a mandatory request; it may be sought strategically where manifest unlawfulness and harm difficult or impossible to remedy exist together. Silence for thirty days on a complete application, by contrast, produces not a refusal but a statutory deemed permission.
Occupancy Permits and Condominium Ownership
There is a direct connection between the occupancy permit and condominium ownership. In a building over which a construction servitude has been established, conversion to condominium ownership may be effected on the statutory conditions, of the authorities' own motion or upon the application of one of the co-owners, on the basis of an occupancy permit issued for the whole building. Building Registration Certificate transactions under provisional Art. 16 of the Zoning Law are a historic exception.
A construction servitude is a servitude established during construction and attached to the land share. On completion of the building an occupancy permit is obtained and the construction servitude is converted into condominium ownership. Conversion gives the owners of independent units full ownership rights, and each independent unit is registered as a separate immovable. Where an occupancy permit has been obtained and a construction servitude exists, one of the co-owners may request conversion to condominium ownership; conversion is also effected of the authorities' own motion once the competent administration sends the certificate to the land registry. The transaction is governed by Arts. 3 and 14 of Law No. 634 and current land registry practice.
Building Inspection and the Occupancy Permit
For buildings within the scope of Building Inspection Law No. 4708, the building inspection body inspects the construction and its conformity with the project within its statutory functions; the relevant reports and records are required at the occupancy permit stage. Since there are buildings outside the scope of Law No. 4708 or subject to another special inspection regime, the same requirement of “a favourable report from a building inspection body” cannot be imposed on all buildings.
The completion certificate issued by the building inspection body certifies that the building has been completed in conformity with its project and permit. That certificate is one of the most important annexes to an occupancy permit application. Where the building inspection body issues an unfavourable report, no occupancy permit is granted and the deficiencies must be remedied.
The importance of the building inspection process is particularly great for earthquake safety. Effective inspection by building inspection bodies ensures that buildings are constructed in conformity with the earthquake regulations and improves safety of life. It is not possible to guarantee earthquake safety in buildings that have not been inspected.
Time Limits and Limitation
Construction must begin within two years of the date of the building permit and the building must be completed within five years of that date; otherwise the permit lapses and must be renewed (Zoning Law Art. 29). No separate limitation period is prescribed for an occupancy permit application. In private law, the periods for defects, guarantee, insurance and compensation do not run automatically from the date of the occupancy permit; delivery, knowledge, the contract and special statutory provisions are decisive.
Frequently Asked Questions
What happens if the administration does not reply within thirty days?
On a complete application, permission is deemed granted for the use of the whole building or the completed part; there is no implied refusal.
How long is a building permit valid?
Construction must begin within two years and the building must be completed within five years of the date of the permit.
Does an occupancy permit guarantee against all safety risks?
No; it is the administrative outcome of an examination of conformity with the permit and technical rules.
Is every building without an occupancy permit an unauthorised building?
No. A building completed in conformity with its permit for which no permit has been obtained must be distinguished from an unpermitted or non-conforming building.
This article was prepared by Av. Mehmet Serhat MALGIR.
