Expropriation Action — Valuation, Objection Procedures and Legal Remedies

Expropriation Action — Valuation and Objection Process

Expropriation (kamulaştırma) is the compulsory acquisition by the State and public legal entities of all or part of privately owned immovable property in circumstances required by the public interest, on condition that the compensation is paid in advance. The right to expropriate, regulated under Article 46 of the Constitution, is set out in detail in Law No. 2942 on Expropriation (Kamulaştırma Kanunu). This article comprehensively examines the expropriation process, valuation, urgent expropriation, expropriation without due process (kamulaştırmasız el atma), the negotiation procedure, the action for determination of compensation and registration, and the right of repurchase.

What Is Expropriation and What Is Its Constitutional and Statutory Basis?

Expropriation is the acquisition by the State and public legal entities, in cases required by the public interest, of all or part of privately owned immovable property in accordance with the principles and procedures prescribed by law, provided that the true equivalent is paid in advance. Article 46 of the Constitution and Law No. 2942 on Expropriation (Kamulaştırma Kanunu) form the legal basis of this institution.

Expropriation is the most severe form of interference with the right to property. For this reason, Article 46 of the Constitution strictly regulates the conditions for expropriation. Accordingly, for expropriation to be carried out, the following conditions must be simultaneously met: it must be required by the public interest; the principles and procedures prescribed by law must be followed; and the true equivalent must be paid in advance.

Law No. 2942 on Expropriation (Kamulaştırma Kanunu) is the principal statute regulating the principles and procedures of expropriation. This law regulates: the authority entitled to expropriate, the procedure for adopting a public interest decision, the valuation of the immovable property, the negotiation procedure, the action for determination of value and registration, cases of expropriation without due process, and the right of repurchase.

Authorities that may carry out expropriation include: the State, provincial special administrations (il özel idareleri), municipalities (belediyeler), and public legal entities. Private law legal entities cannot directly expropriate property; however, in cases authorised by statute (for example, energy companies licensed by the Energy Market Regulatory Authority — EPDK) they may request expropriation.

How Does the Expropriation Process Work?

The expropriation process consists in sequence of: adoption of a public interest decision, issuance of an expropriation decision, identification of the property and its owner, application of the purchase (negotiation) procedure, and, if no agreement is reached, filing of an action for determination of value and registration. Each stage is regulated in detail in the Expropriation Law.

1. Public interest decision: According to Article 5 of the Expropriation Law, the authority carrying out the expropriation must first adopt a public interest decision. This is an administrative decision stating that expropriation is necessary and will serve the public interest. It is adopted by the competent body of the authority carrying out the expropriation.

2. Expropriation decision: Following approval of the public interest decision, an expropriation decision is adopted. This decision identifies which properties are to be expropriated, the purpose of the expropriation, and the estimated value. The expropriation decision is adopted by the chief executive or competent body of the expropriating authority.

3. Identification of the property and its owner: Following the expropriation decision, the authority determines the boundaries, area, and type of the property to be expropriated. It places an annotation on the land registry to prevent the property from being transferred to third parties. The identity and address of the owner are ascertained.

4. Purchase (negotiation) procedure: Pursuant to Article 8 of the Expropriation Law, after adopting the expropriation decision, the authority is obliged to first apply the purchase procedure. This is a mandatory stage; no action may be filed directly without having attempted to reach agreement. The authority makes a written offer to the owner based on the estimated value determined by the valuation commission.

5. Action for determination of value and registration: If no agreement is reached, the authority files an action for determination of value and registration before the civil court of first instance (asliye hukuk mahkemesi) in the district where the property is situated (Article 10 of the Expropriation Law). This action is the judicial stage of expropriation.

How Is the Expropriation Compensation Determined?

The expropriation compensation is determined according to the criteria listed in Article 11 of the Expropriation Law. The type and category of the immovable property, its area, all characteristics and elements that may affect its value, the tax declaration, official valuations made at the date of expropriation, and comparable sales in the immovable property market are taken into account. The compensation is determined by a panel of expert witnesses.

The criteria listed in Article 11 of the Expropriation Law are the basis for valuation:

- Type and category of the immovable property (land, agricultural land, building, etc.)

- Area

- All characteristics and elements that may affect its value (location, zoning status, infrastructure facilities)

- Tax declaration

- Official valuations made by public authorities at the date of expropriation

- Net income the land would produce if used as-is according to its location and conditions

- Comparable sales prices in the immovable property market

Valuation is carried out by a panel of expert witnesses of at least three persons appointed by the court. At least one member of the panel must be a licensed real estate valuation expert (lisanslı gayrimenkul değerleme uzmanı) active in the district where the property is situated. The expert witnesses determine the value of the property after an on-site inspection.

The court is not bound by the expert report and assesses it freely. However, in practice courts generally accept the valuation in the expert report. Parties have the right to object to the expert report, and upon objection an additional report or a fresh expert examination may be ordered.

What Is Urgent Expropriation and in What Circumstances Does It Apply?

Urgent expropriation (acele kamulaştırma) is an exceptional expropriation procedure that enables, by Presidential decree, possession of immovable property to be taken where the ordinary expropriation process would take a long time and there is an urgent public interest. Regulated under Article 27 of the Expropriation Law, it applies in national defence, acute disaster situations, and circumstances designated by the President.

In urgent expropriation, the ordinary process is shortened. The authority applies to the court, which obtains an urgent valuation through an expert witness and, upon the amount being deposited in escrow at a bank, permits the authority to use the property. The final compensation for the property is determined in the ordinary expropriation process.

An annulment action may be brought in administrative courts against an urgent expropriation decision. When reviewing the lawfulness of urgent expropriation decisions, the Council of State examines whether the public interest is genuinely present, whether urgency exists, and whether the principle of proportionality was complied with.

In practice, urgent expropriation decisions are particularly issued in the context of major infrastructure projects (motorways, dams, energy plants), urban regeneration projects, and national defence activities. However, such practice is also the subject of proceedings before the European Court of Human Rights on the grounds that it constitutes a serious interference with property rights [TO BE VERIFIED].

What Is Expropriation Without Due Process and How Is an Action Filed?

Expropriation without due process (kamulaştırmasız el atma) occurs when the administration de facto takes possession of privately owned immovable property without carrying out an expropriation procedure, or renders the exercise of property rights over the immovable property impossible through regulatory acts such as a zoning plan. This falls into two categories: de facto taking and de jure taking.

De facto taking (fiili el atma): The administration takes de facto possession of the property without any expropriation procedure. Running a road over the property, building a park, or constructing a public building on it constitutes a de facto taking. In the event of a de facto taking, the owner of the property may bring a damages action before the civil courts (asliye hukuk mahkemesi).

De jure taking (hukuki el atma): The administration designates the property as a public service area (green space, road, school area, etc.) in the zoning plan but, by not expropriating it for a long time, restricts the owner's right to property. In this case, the owner may bring a damages action before the administrative courts (idare mahkemesi). The Court of Cassation (Yargıtay) and the Council of State (Danıştay) have developed different case law on de jure taking.

Limitation periods in expropriation-without-due-process cases are an important area of debate. Provisional Article 6 added to the Expropriation Law in 2010 introduced special arrangements for expropriation-without-due-process transactions between 09.10.1956 and 04.11.1983. Outside these dates, there is no limitation period for de facto taking; the owner may file an action at any time.

In expropriation-without-due-process cases, the compensation is determined using the same criteria as in the determination of expropriation compensation. However, it is also possible to additionally claim mesne profits (ecrimisil — compensation for unlawful occupation) for the period between the date of the taking and the date of the action.

How Is an Action to Contest the Expropriation Compensation Filed?

According to Article 14 of the Expropriation Law, the owner of the property may bring an annulment action in administrative courts within 30 days of service against the expropriation decision. In the action for determination of value and registration, the owner may contest the valuation and claim a higher amount. The contest of the valuation is made during the action for determination of value and registration heard before the civil court.

There are two different types of actions that may be brought against an expropriation:

1. Annulment action in administrative courts: Brought before the administrative court on grounds of illegality of the expropriation act (absence of public interest, defects in competence, form, grounds, subject matter, or purpose). The time limit for filing an action is 30 days from service of the expropriation act (Article 14(1) of the Expropriation Law).

2. Valuation action in civil courts: If the owner finds the compensation determined by the court in the action for determination of value and registration to be insufficient, they may contest it. If the owner objects to the expert report, the court orders a fresh examination. Either party may appeal against the valuation determined by the court.

Where the property is acquired by negotiated purchase, the owner cannot subsequently claim that the agreed price was below the true value, as the negotiation record constitutes a binding agreement. However, where there is a defect in the formation of consent in the negotiation (fraud, duress, mistake), an action to set aside the contract may be brought under general provisions.

What Is the Right of Repurchase and How Is It Exercised?

According to Article 23 of the Expropriation Law, if the expropriated property is not used in accordance with the purpose of expropriation within 5 years of the expropriation compensation becoming final, or is not used at all, the former owner has the right to repurchase the property. The repurchase price is the compensation paid at the time of expropriation, and the owner may repurchase their property by returning that amount.

The following conditions must be simultaneously satisfied for the right of repurchase to be exercisable:

- The property must not have been used in accordance with the purpose of expropriation within 5 years of the expropriation compensation becoming final

- The administration must wish to use the property for a purpose other than that of expropriation or to transfer it to a third party

- The former owner must exercise the right of repurchase within 3 months of being notified of this situation

If the administration wishes to use the expropriated property for a purpose other than that of expropriation or to transfer it to a third party, it must first offer it to the former owner or their heirs at the same price (Article 23(1) of the Expropriation Law). The former owner may accept this offer within 3 months.

The right of repurchase is limited to 5 years from the expropriation compensation becoming final. After this period, the right of repurchase lapses and the administration may freely dispose of the property. The right of repurchase is a personal right and may be exercised by the former owner or their heirs.

The civil court (asliye hukuk mahkemesi) is the court with jurisdiction over a repurchase action. When the owner files an action to exercise the right of repurchase, the court examines whether the property has been used in accordance with the purpose of expropriation, whether the 5-year period has elapsed, and whether the repurchase price has been deposited.

This content is for general informational purposes only and does not constitute legal advice.