Attorney Hüseyin Aydın – Lawyer in Alanya
A new road opens, a viaduct rises, a modern grade-separated interchange eases traffic, and the whole city benefits from the investment. For a property owner whose land lies right next to the road or interchange, however, the picture is often far less pleasing. An owner whose home or business premises end up several metres below the new road level, whose shop entrance is blocked, whose facade is covered by bridge piers, or whose direct access to the road is cut off may see the value of the property fall sharply overnight.
Such disputes are particularly common in fast-growing tourism and commercial centres such as Antalya and Alanya, where road networks, grade-separated junctions, ring-road connections and viaduct projects are being built intensively. The authority carrying out these projects (the General Directorate of Highways, the Metropolitan Municipality or the district municipalities) may have acted entirely in accordance with the plan and project and complied strictly with the rules of science and engineering; there may be no apparent service fault at all. Nevertheless, the financial loss suffered is extremely concrete, permanent and severe.
To remedy this imbalance, Turkish administrative law applies the principle of “equalisation of sacrifice” (fedakârlığın denkleştirilmesi, i.e. equality before public burdens). The special and extraordinary burden placed on a single owner by projects carried out for the common good of society must be borne by the common public budget, even where the administration is not at fault. In this guide we examine the legal foundations of the principle, recent decisions of the Council of State (Danıştay) and the procedural rules that owners whose property has lost value must follow in order not to lose their rights.
What Is the Principle and Where Does It Come From? The Legal Basis of Equalisation of Sacrifice
The principle of equalisation of sacrifice is one of the forms of the administration’s no-fault (strict) liability. As firmly established in the case law of the Council of State, the principle is based on the premise that “the burden of administrative acts and activities whose benefits are enjoyed by the whole of society cannot be left on only a certain segment of society or on a single individual”. The burden must be shared by the public, and the special loss suffered by the individual must be compensated.
Rooted in the case law of the French Council of State (Conseil d’État), this principle is not set out in a single statutory provision in Turkish legislation; it is based on fundamental constitutional and administrative principles:
- Constitution Art. 10 (Principle of Equality): The administration is obliged to act in accordance with the principles of equality and justice in its activities. Making only the owner of the neighbouring plot bear the cost of a road or interchange project that benefits the public violates the rule of equality.
- Constitution Art. 35 (Right to Property): The right to property may be restricted on grounds of public interest; however, this interference cannot turn into an unbearable, disproportionate and excessive economic burden on the owner.
- Constitution Art. 125 (Liability of the Administration): “The administration shall be liable to compensate for damages arising from its own acts and actions.” Here the framers of the Constitution did not make the administration’s liability conditional on fault; a causal link between the damage and the act is sufficient.
- Administrative Procedure Law No. 2577 (İYUK) Art. 2/1-b and Art. 13: These provisions allow property owners whose rights have been infringed by administrative acts to apply to the administration for compensation and then to bring a full remedy action (tam yargı davası) before the administrative courts.
The Constitutional Court (AYM) also regards the disproportionate burden that such projects place on owners as a violation of the right to property. In Constitutional Court Application No. 2019/25419 (16/3/2022), the failure of the courts to compensate a loss of approximately 5% in the value of a dwelling caused by the noise and environmental impact of a newly built motorway viaduct was held to violate the right to property.
First Precedent: A Petrol Station Left Below Road Level
Council of State, Plenary Session of the Administrative Law Chambers (İDDK), E. 2024/933, K. 2024/3539, D. 26.12.2024
Subject of the Dispute: As a result of extensive road construction works carried out by the administration in the public interest, the plot on which the claimant company’s petrol station stood ended up below the level of the new road. The steep difference in level and height between the road and the station made it difficult for vehicles to enter and leave the station and caused a permanent loss of value of the property.
Proceedings: The first-instance Administrative Court, relying on an on-site expert examination, awarded compensation for the loss of value of the property. After review by the Council of State and the local court’s insistence on its original decision, the file came before the Plenary Session of the Administrative Law Chambers, the Council of State’s highest case-law body.
Decision of the Council of State İDDK: The Plenary Session finally dismissed the administration’s appeal and upheld the local court’s judgment in favour of the claimant. The reasoning summarised the limits of the principle very clearly:
“… although the defendant administration has no service fault, the claimant, in respect of whom it was established by expert report that a loss of value occurred in the property because of the difference in height between the property and the road resulting from road construction works that constitute an administrative act and serve the public interest, has suffered a special and extraordinary loss compared with the other individuals making up society … this must be remedied by the defendant administration within the scope of no-fault liability in accordance with the principle of equalisation of sacrifice …”
Legal Significance of the Decision: This recent decision of the Council of State İDDK at the end of 2024 confirmed three basic parameters: the absence of a service fault on the part of the administration does not bar compensation; even a lawful act pursuing the public interest can give rise to compensation; and it is sufficient for the claimant owner to prove, through an expert, that he or she has suffered a special and extraordinary loss different from that of the general public.
Second Precedent: A Building in the Shadow of a Grade-Separated Interchange
Council of State 10th Chamber, E. 2019/369, K. 2021/718, D. 24.02.2021
Subject of the Dispute: During the construction of the Çorum-Osmancık grade-separated interchange, the owners of independent units in a building located directly in front of the interchange viaduct brought a full remedy action claiming compensation for loss of value and loss of rent, arguing that the interchange blocked the facade, created a difference in level and noise, and that as a result the market value of their property had fallen and they could not let their units.
Proceedings: The first-instance court allowed the claim, but the Council of State 10th Chamber quashed the judgment on first review. The reasons for reversal stated that the calculation of the loss of value was abstract, that concrete comparable sales before and after construction had not been compared and that depreciation had not been taken into account; a report was requested from a new panel of experts including a civil engineer and a licensed real estate appraiser. Based on the new panel’s report, the court allowed the claim.
Final Decision of the Council of State 10th Chamber: This time the Council of State divided the claims in two and drew a critical distinction:
- Permanent Loss of Value of the Property Upheld: Compensation for the permanent loss of value was upheld, since it was established that the interchange made access to the property more difficult, created a traffic safety risk and caused visual obstruction, a difference in level and constant noise.
- Claim for Loss of Rent Rejected: This part was reversed on the grounds that the ability to let a property depends on market supply and demand, economic fluctuations and numerous variables; that “a directly provable, definite and concrete causal link” could not be established between the overpass and the loss of rental income; and that this loss remained a possible and hypothetical loss.
Legal Significance of the Decision: This precedent sets out the most delicate line in judicial practice: while the permanent reduction in the market value of property caused by public investments is compensated, claims such as hypothetical loss of rent or loss of profits that may arise in the future are not accepted. It also proved once again that the course of the case is determined by a properly prepared technical expert report.
What Conditions Must Be Met for a Compensation Claim to Succeed?
Not every road widening, junction redesign or municipal project carried out in an area automatically entitles owners to compensation. Under the decisions of the Council of State and settled principles of administrative law, the following 3 basic conditions must be met together:
- Lawful Administrative Activity: There must be a legitimate administrative act carried out in the public interest, such as a road, underpass, overpass, junction, crash barrier or viaduct. It is not necessary for the administration to be at fault.
- Special and Extraordinary Loss: The loss must exceed the ordinary construction dust, temporary traffic congestion or general environmental disturbance borne by society as a whole; it must be concentrated on the owner of a particular plot or independent unit and force him or her into a disproportionate sacrifice.
- Direct Causal Link: The loss of value of the property must be the direct result of the public investment and the administrative act carried out.
The table below sets out which claims are generally accepted and which are rejected according to court decisions:
| Type of Loss / Area | Claims Generally Compensated | Claims Generally Not Compensated |
|---|---|---|
| Loss of Property Value | Permanent decline in value caused by a difference in level, blocking of the facade, loss of view and loss of access to a main road. | Temporary dust, noise, piles of materials and ordinary traffic disruption during construction. |
| Necessary Expenses | Costs of ramps, retaining walls, stairs and alterations that had to be built within the plot to adapt to the road level. | Undocumented, arbitrary or luxury expenditure, or disproportionate expenditure exceeding the condition of the property. |
| Loss of Income and Profit | Net losses proven by concrete data and accounting records showing that commercial activity actually became impossible because of the administrative act. | Hypothetical rental losses depending on market conditions and speculation, and uncertain losses of profit. |
| Legal Status of the Building | Lawful buildings that comply with zoning legislation and have a building permit and an occupancy permit (iskan). | Unlicensed or illegal buildings, or illegal extensions contrary to the zoning amnesty or zoning legislation. |
| Foreseeability Criterion | Interventions not foreseen in the zoning plan in force and later implemented through a plan revision or an administrative decision. | Claims by persons who acquired the property later in the knowledge that the project was already clearly shown in the zoning plan. |
Beware of the Foreseeability Rule: As emphasised in Council of State 10th Chamber decision E. 2019/9439, K. 2021/5928, when buying or building a property, it should be checked whether the grade-separated junction or road route already appears in the zoning plan in force. If the owner acquired the property or started construction having seen the project in the zoning plan, he or she cannot later claim the resulting loss of value from the administration.
Number of Those Affected (the Special Loss Debate): Where all the shopkeepers on a street or a large number of properties are affected at the same time, the Council of State has in some decisions held that the loss is not “special and extraordinary” but falls within ordinary public burdens. However, in legal doctrine and current legal debate it is strongly argued that forcing a limited neighbourhood or street community alone to bear the economic cost of a junction that benefits the whole of society is contrary to the principle of equality.
Procedural Guide to Avoid Losing Your Rights: Application and Litigation
The most common mistakes made by property owners whose property has lost value because of public investments concern procedure and time limits. In administrative law, time limits are strict and a matter of public order.
1. Determining the Competent Branch of the Judiciary
Loss of value and damage arising from public investments such as roads, viaducts and underpasses carried out by the administration without an expropriation decision and without transfer of ownership constitute an administrative act, and the competent court is the Administrative Court. Bringing such a dispute before the civil courts leads to the case being dismissed for lack of jurisdiction.
By contrast, where the administration has carried out a partial expropriation and the remaining part has lost value (Expropriation Law No. 2942 Art. 12/b), or where there are disputes over nuisance and right of way based on neighbour law (Turkish Civil Code (TMK) Arts. 730, 747), the dispute is heard by the civil courts (Civil Court of First Instance). For more detailed information on administrative procedure and appeals, see also our article guide to extraordinary appeals in administrative proceedings.
2. Mandatory Prior Application to the Administration (Time Limits under İYUK Art. 13)
For losses arising from administrative acts, an action cannot be brought directly before the administrative court. Under Art. 13 of İYUK No. 2577, the following stages must be followed carefully:
- Time Limit for the Prior Application: A written application must be made to the administration that caused the loss (for example, the General Directorate of Highways or the Metropolitan Municipality) within 1 year of learning of the administrative act causing the loss (completion of the road, its opening to traffic or the finalisation of the difference in level) and in any event within 5 years of the date of the act.
- The Administration’s Response Period: The administration may respond to the application within 30 days. If the application is expressly rejected, the time limit for bringing an action starts from notification of the rejection letter; if no response is given within 30 days (implied rejection), it starts from the end of that period.
- Time Limit for Bringing a Full Remedy Action: A full remedy (compensation) action must be filed with the competent administrative court within the time limit for bringing an action (as a rule, 60 days) following notification of the rejection or the expiry of the implied rejection period.
3. Burden of Proof and the Importance of the Technical Expert Report
The outcome of loss-of-value cases based on equalisation of sacrifice depends almost entirely on the technical expert report. The panel of experts to be requested from the administrative court should include a surveying engineer, a civil engineer and a real estate appraiser licensed by the Capital Markets Board (SPK).
The main evidence to be submitted before filing the case and during the proceedings is as follows:
- The current title deed (tapu) record of the property, the zoning status certificate (imar çapı), the approved architectural project, the building permit and the occupancy permit (iskan).
- Dated aerial photographs, satellite images, street photographs and video recordings comparing the situation before and after the public project.
- The administration’s approved road/junction implementation projects and cross-section plans (technical drawings clearly showing the difference in level).
- Comparable sale and purchase records and bank/SPK valuation reports showing the market value of the property before the project and its real value after construction.
- Official invoices and contracts for any additional access ramps, stairs, retaining walls, drainage or facade works that became necessary for the property.
Conclusion: The Public Interest Cannot Impose a Disproportionate Bill on the Individual
Public investments are indispensable for the growth and modernisation of our cities and for easier transport. However, the fact that the administration acts lawfully in the public interest does not mean that the bill for these projects can be placed on the shoulders of a single property owner by the roadside. The settled case law of the Council of State’s Plenary Session of the Administrative Law Chambers and its 10th Chamber emphasises a clear truth: even if the administration is not at fault, the special and extraordinary loss of value borne by an individual for the sake of the public interest must be covered by the common public budget.
Success in this process depends on proving the loss of value of the property through technical comparable-sales research rather than abstract allegations, and on full compliance with the mandatory time limits for the administrative application under İYUK Art. 13. For your specific dispute, and to avoid losing your rights, it is advisable to seek professional legal advice from a lawyer.
Legal Notice: This text has been prepared for general information purposes only and does not constitute legal advice. sophoshukuk.com makes no referral, guarantee or promise of outcome. Each case must be assessed on its own particular circumstances; for your specific dispute, please obtain professional advice from a lawyer.
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