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Does a Building Registration Certificate Legalise a Building That Violates Zoning Rules in Turkey?

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Introduction and General Framework

Does obtaining a Building Registration Certificate (Yapı Kayıt Belgesi) make a building that violates zoning rules legal? This article examines the “Zoning Amnesty” (İmar Barışı) scheme, which entered into force under Provisional Article 16 added to Turkish zoning legislation by Law No. 7143, and the legal effects of the “Building Registration Certificate” issued under it on “Construction Contracts in Exchange for Land Shares” (Arsa Payı Karşılığı İnşaat Sözleşmesi – APKİS), one of the most common contract types in private law. The Zoning Amnesty is generally regarded as an administrative measure introduced to place unauthorised and unlicensed buildings under temporary legal protection. However, the effect of this administrative document on the contractual relationship between the landowner and the contractor (developer) – in particular on the contractor’s obligation to deliver the building in conformity with the approved project and zoning rules and with an occupancy permit (iskan, i.e. the building use permit) – has led to long-standing debate in case law and legal doctrine.

The focus of this article is the question of whether the fact that the contractor or the landowner has obtained a “Building Registration Certificate” for a building constructed in breach of zoning rules and the approved project releases the contractor from the obligation to deliver a zoning-compliant building. In this context, the judicial dimension of the issue is analysed in detail on the basis of the precedent judgment of the 15th Civil Chamber of the Court of Cassation (Yargıtay) dated 23.05.2019, Case No. 2018/5361 E., Decision No. 2019/2479 K., together with the legal assessments made at the stages of the court of first instance, the Regional Court of Appeal (İstinaf) and the Court of Cassation.

The Balance Between the Right of Ownership and Zoning Law

In order to better understand where this issue sits at the intersection of private law and public law, the boundaries of the right of ownership and of zoning law must first be clearly drawn.

Legal Nature of the Right of Ownership

The right of ownership is a full, absolute and exclusive right in rem, enjoying constitutional and international guarantees, which grants its holder the widest possible powers to use, enjoy and dispose of a thing directly. In legal doctrine, Prof. Dr. Fikret Eren defines the right of ownership as “a full, absolute and exclusive right in rem that grants its holder all of the powers of direct use, enjoyment and disposal over a thing and that may be asserted against everyone”.

In line with this, Article 683 of the Turkish Civil Code (TMK) provides that a person who owns a thing has the power to use, enjoy and dispose of it as they wish within the limits of the legal order. Similarly, Article 35 of the Constitution of the Republic of Turkey states that the right of ownership may be restricted only by law and in the public interest, thus giving the right of ownership constitutional protection. At international level, Article 1 of Protocol No. 1 to the European Convention on Human Rights (ECHR) – which has become part of Turkish domestic law by virtue of Article 90 of the Constitution – provides that everyone is entitled to the peaceful enjoyment of their possessions, and thereby sets the limits on unjustified interference with property.

Public and Private Law Dimensions of Zoning Law

In the modern state, this absolute and unlimited nature of the right of ownership is restricted in favour of the public interest by the rules of zoning law. The classical distinction between public law and private law has lost much of its significance today, and branches of law of a mixed nature have emerged. Zoning law is one of the most important of these mixed fields. Zoning law, which regulates urbanisation, construction and planning, aims to strike a delicate balance between the public interest and individual property rights. According to views in the doctrine, zoning law establishes a balance based on mutual interests and limitations between the public interest and the interests of individuals. While the public law aspect of zoning law governs relations between the administration and the individual, its private law aspect determines neighbourly relations between persons and the boundaries of ownership. As a consequence of social realities such as rapid urbanisation and intensive migration, it is inevitable that the state will interfere with the right of ownership by drawing up zoning plans and by setting and supervising construction conditions.

Legal Structure of Construction Contracts in Exchange for Land Shares (APKİS)

In practice, a Construction Contract in Exchange for Land Shares is a bilateral contractual relationship in which the landowner undertakes to transfer certain shares of their land to the contractor, and the contractor undertakes to construct a building on that land in accordance with the contract and the zoning rules and to deliver the agreed independent units (flats, shops, etc.) to the landowner on a turnkey basis.

Mixed Nature of the Contract

The construction contract in exchange for land shares is not a typical contract directly and specifically regulated in the Turkish Code of Obligations (TBK). For this reason, it has no statutory definition. When the performance obligations it contains are examined, it is seen to be a contract of a “mixed nature” (a dual-type contract). As regards the contractor’s undertaking to produce a work (to construct a building), the contract is subject to the provisions on “contracts for work”; as regards the landowner’s obligation to transfer land shares in return for this construction, it is subject to the provisions on “contracts for the sale of immovable property”. The legal nature of the contract is accepted as that of an instantaneous-performance, reciprocal (synallagmatic) contract of mixed nature.

Formal Requirements and Conditions of Validity

Since the contract involves the transfer of ownership (title deed transfer) or a promise to transfer title, it is subject to an official form pursuant to Article 706 of the Turkish Civil Code, Article 237 of the Turkish Code of Obligations, Article 26 of the Land Registry Law and Articles 60 and 89 of the Notaries Law. Accordingly, for an APKİS to be valid, it must be executed before a notary in the form of a notarial deed (düzenleme şekli); this is a condition of validity. Contracts concluded without complying with the official form are regarded as legally invalid (absolutely null and void).

Reciprocal Obligations and Basic Principles of Performance

The parties’ obligations under the contract are reciprocally dependent on each other. The landowner’s main obligation consists of delivering to the contractor land that is suitable for construction and free from any legal or factual impediment. The contractor’s main obligation is to construct the building in accordance with its approved project, the zoning legislation and the technical specifications agreed between the parties, and to effect legal delivery. Legal delivery is deemed to have taken place when the construction has been completed in compliance with the legislation and the occupancy permit (building use permit) has been obtained from the administration.

In practice, it is very common for shares to be transferred to the contractor at the land registry right at the start of the work or at certain stages, in order to provide the contractor with financing once the contract is concluded. According to the established case law of the Assembly of Civil Chambers of the Court of Cassation (Yargıtay Hukuk Genel Kurulu) (as stated, for example, in its judgment dated 04.11.2015, Case No. 2014/6-324 E., Decision No. 2015/2787 K.), title deed transfers made at this stage are not a definitive transfer of ownership but are in the nature of an “advance” given to the contractor to complete the work. The contractor acquires a “personal right” over the land to the extent that it has performed its counter-obligation (the construction), and may assign rights to third parties only to the extent of that right. This personal right of the contractor turns into a “right in rem” (actual ownership) only when it has performed all of its obligations fully and in accordance with the law (i.e. when the occupancy permit has been obtained). Until that stage, the landowner has the right to reclaim the shares transferred as an advance (by an action for cancellation and re-registration of the title deed) if the contractor fails to perform.

The Building Registration Certificate and the Legal Nature of Buildings Violating Zoning Rules

The Building Registration Certificate, regulated under Provisional Article 16 added to the Zoning Law No. 3194 by Law No. 7143, is an administrative status introduced in order to register unauthorised buildings in Turkey that were built without a licence or in breach of the licence and its annexes.

Purpose of the Regulation and the Application Process

According to the legislative rationale of Provisional Article 16, the main purpose of the regulation is to register buildings that violate the zoning legislation as part of disaster-risk preparedness, and to make urban transformation faster and more effective. It was also intended that, by registering buildings constructed before 31.12.2017, water, electricity and natural gas could be connected to these buildings, administrative fines and demolition orders could be waived, and the workload of municipalities and the courts could be reduced. Under this system, which is based on the declarations of applicants, a building registration certificate is issued in return for payment of a specified registration fee.

The Administrative Status Provided by the Building Registration Certificate

Obtaining a building registration certificate does not automatically and fully make a building that violates zoning rules legal (zoning-compliant). As clearly stated in doctrine and case law, a building registration certificate in fact provides temporary administrative protection to a non-compliant building that would otherwise have to be demolished, in the form of the administration suspending demolition proceedings and allowing the building to be used in its current state. With this certificate, the administration waives its power to demolish the unauthorised building, but it does not bring the building into conformity with the zoning plans.

Renewal of the Building and the Urban Transformation Limit

Pursuant to paragraph 10 of Provisional Article 16, a building registration certificate is not an ownership or zoning document that remains valid forever. The certificate is valid until the building is rebuilt or until an urban transformation project is implemented. If the building is renewed for any reason or demolished and rebuilt, the current zoning legislation in force will apply. This clearly shows that the building registration certificate merely gives a non-compliant building a temporary use status and can in no way be characterised as a “zoning pardon”.

The Effect of the Zoning Amnesty on Performance of Obligations Under a Flat-for-Land Construction Contract

Although the building registration certificate provides a right of use in the administrative sphere, albeit a temporary one, its effect on a flat-for-land construction contract (kat karşılığı inşaat sözleşmesi), which is a private law contract, is extremely limited.

Prohibition on Compelling a Party to Obtain a Building Registration Certificate

Applying for a building registration certificate is an optional right granted to property owners under Provisional Article 16 of the Zoning Law. The law contains no mandatory provision obliging owners to make such an application. Consequently, no one can be forced to apply for a building registration certificate against their will. Under an APKİS, too, the contractor has no right to compel the landowner to obtain a building registration certificate for a building it has constructed in breach of zoning rules. The landowner cannot be forced to legitimise the contractor’s zoning violations by means of this certificate.

Continuation of the Occupancy Permit (Building Use Permit) Obligation

Unless otherwise agreed in the contract, the contractor is obliged to construct the building in accordance with the zoning legislation and to obtain the occupancy permit. Even if the landowner has personally obtained a building registration certificate for the non-compliant building, that certificate does not make the building eligible for an occupancy permit. Since obtaining a building registration certificate does not remedy the violations of the zoning legislation, it does not extinguish the contractor’s obligation to obtain the occupancy permit and does not mean that the obligation has been performed. A building that has no occupancy permit, or is not eligible for one, has no full legal or economic value. Therefore, if the contract provides for an occupancy permit to be obtained, the contractor cannot be deemed to have performed its obligation until that condition has been fulfilled.

A Request to Postpone Performance Constitutes an “Abuse of Right”

Because the building registration certificate remains valid until the building is rebuilt or until urban transformation, a defence by the contractor along the lines of “there is a building registration certificate anyway, the building will not be demolished, so I am postponing performance until the building is rebuilt” is not legally protected. Such a claim amounts to suspending performance indefinitely, which is entirely contrary to the rules on performance and good faith under the Code of Obligations. Requests by the contractor to this effect are assessed under the prohibition of abuse of rights set out in Article 2 of the TMK and are not accepted by the courts. Provisional Article 16 added to the Zoning Law has no postponing or extinguishing effect whatsoever on the performance of the obligations agreed under an APKİS.

Detailed Analysis of the Precedent Judgment of the 15th Civil Chamber of the Court of Cassation

How these legal principles are reflected in practice can be seen very clearly in the case that was the subject of the judgment of the 15th Civil Chamber of the Court of Cassation dated 23.05.2019.

Subject of the Case and the Material Facts

The case concerned a claim for retroactive termination (rescission) of a construction contract in exchange for land shares, which is a type of contract for work, and for cancellation and re-registration of the title deed.

The Proceedings and Court Decisions

Decision of the Court of First Instance

Following its proceedings, the court of first instance found that the building was in breach of both its project and the zoning legislation, that it was an unauthorised structure, and that it was not possible to obtain an occupancy permit in its current state. At the hearing dated 11.04.2000, the court granted the contractor a final period of four months to remedy the defects and obtain the occupancy permit, but the contractor did not perform within that period. The court of first instance therefore upheld the claim, ordered the termination of the contract and the cancellation of the title deed shares registered in the defendant’s name and their registration in the names of the claimants.

Decision of the Regional Court of Appeal (İstinaf)

Upon the defendant contractor’s appeal, the file went to the 15th Civil Chamber of the Istanbul Regional Court of Appeal (BAM). The appellate court asked Sarıyer Municipality about the conditions for obtaining an occupancy permit for the building, and granted the contractor time and authority to prepare a preliminary alteration project to remedy the zoning violations. However, this process did not produce any result either.

Nevertheless, the BAM took into account Provisional Article 16, added to the Zoning Law by Law No. 7143, which entered into force while the proceedings were ongoing. Relying on the fact that a “Building Registration Certificate” had been obtained for the non-compliant building, the appellate court held that this certificate made the unauthorised building legal, albeit temporarily, and that in these circumstances the contractor should be deemed to have performed its obligation. Stating that the landowner could claim compensation for its losses instead of termination, the BAM set aside the decision of the court of first instance and dismissed the case. The claimants appealed this decision to the Court of Cassation.

Assessment and Reasoning of the 15th Civil Chamber of the Court of Cassation

The 15th Civil Chamber of the Court of Cassation found the decision of the Regional Court of Appeal to be erroneous and reversed it. The Court of Cassation’s grounds for reversal were as follows:

  1. Failure to Satisfy the Occupancy Permit Condition: The contract between the parties expressly provided for an occupancy permit to be obtained. The contractor’s obligation ends only with the legal delivery of the property upon obtaining the occupancy permit. A building without an occupancy permit has an incomplete economic value.
  2. Limits of the Building Registration Certificate: Although the building registration certificate provides an administrative right of use, it does not change the zoning legislation in force. The certificate is not sufficient to accept that the building has become legal and does not mean that the contractor has performed its contractual obligations.
  3. Equity and the Limit of Tolerance: Although it is equitable in flat-for-land construction contracts to give the contractor time to remedy defects, there is a limit of tolerance to this waiting for the landowner. The contractor had been given the necessary time both at first instance and at the appeal stage, but had not performed.
  4. Performance Cannot Be Expected to Remain in Suspense: The building registration certificate remains valid until urban transformation or reconstruction. Requiring the landowner to wait with performance in suspense until an uncertain future in which the building would be demolished and rebuilt is contrary to the Code of Obligations, the terms of the contract and the principles of equity.
  5. Justification of the Right of Termination: Given that the contractor did not perform its principal obligation, the landowner’s exercise of its statutory right to withdraw from the contract (retroactive termination) is entirely justified.

Outcome of the Judgment

For the reasons explained, the 15th Civil Chamber of the Court of Cassation finally decided to accept the appeal of the claimant landowners and to reverse unanimously the decision of the Regional Court of Appeal in favour of the claimants. The judgment also awarded the claimants TRY 2,037.00 in attorney’s fees for the hearing and ordered the refund of court fees.

Summary and Conclusion

The Building Registration Certificate (Zoning Amnesty) is, from a public law perspective, an administrative measure that halts the demolition of unauthorised buildings and allows their temporary use. However, obtaining this certificate does not extinguish obligations arising from private law contracts between the parties.

In flat-for-land construction contracts, the contractor is obliged to deliver the building in conformity with the zoning rules and the contract, with the occupancy permit obtained. A contractor who constructs an unauthorised building in breach of the zoning rules and the project cannot escape its obligation to obtain an occupancy permit and to make lawful delivery by claiming that it has obtained a building registration certificate. As emphasised in the precedent judgment of the 15th Civil Chamber of the Court of Cassation, seeking to suspend performance on the basis of a building registration certificate until an uncertain urban transformation process is contrary to the rule of good faith and does not prevent the landowner from terminating the contract and reclaiming its title deed. Once the reasonable period of tolerance granted to the contractor has been exceeded, landowners may at any time exercise their rights to withdraw from the contract and to seek cancellation of the title deed.

Since disputes arising from flat-for-land construction contracts are multifaceted from both a technical and a legal perspective, it is important that the process be assessed holistically from the standpoint of real estate law in order to prevent possible losses of rights by the parties.

Frequently Asked Questions

Does the zoning amnesty (Building Registration Certificate) extinguish the occupancy permit obligation under a flat-for-land construction contract?

No. Since the Building Registration Certificate does not remedy the violations of the zoning legislation, it does not extinguish the contractor’s obligation to deliver the building with an occupancy permit (building use permit). If the contract provides for an occupancy permit to be obtained, the obligation is not deemed to have been performed until that condition is fulfilled.

Can the contractor force the landowner to obtain a Building Registration Certificate?

No. Applying for a Building Registration Certificate is an optional right granted to property owners under Provisional Article 16 of the Zoning Law. No one can be forced to obtain this certificate against their will; nor can the contractor force the landowner to obtain a certificate for a non-compliant building.

Is the Building Registration Certificate a “zoning pardon”?

No. The Building Registration Certificate does not permanently legalise a non-compliant building; it is merely an administrative protection that halts demolition proceedings and allows the building to be used temporarily in its current state. The certificate is valid until the building is rebuilt or until an urban transformation project is implemented.

In what form must a flat-for-land construction contract be made?

Since the contract involves a title deed transfer or a promise to transfer title, it is subject to an official form and, to be valid, must be executed before a notary in the form of a notarial deed. Contracts concluded without complying with the official form are regarded as absolutely null and void.

Can the landowner terminate the contract because the building violates zoning rules?

The precedent judgment emphasises that, where the contractor has constructed an unauthorised building in breach of the zoning rules and the project and has failed to obtain an occupancy permit despite being given a reasonable period, the landowner may exercise the rights to withdraw from the contract (retroactive termination) and to seek cancellation of the title deed. Each dispute must be assessed on its own specific circumstances.

What was the outcome of the precedent judgment of the 15th Civil Chamber of the Court of Cassation on this issue?

The 15th Civil Chamber of the Court of Cassation found erroneous the decision of the Regional Court of Appeal, which had dismissed the case on the basis that a Building Registration Certificate had been obtained. Holding that the occupancy permit condition had not been fulfilled, that the certificate did not change the zoning legislation and that the landowner could not be expected to keep performance in suspense indefinitely, it unanimously reversed the decision in favour of the claimants.

For the document requirements relating to the transport of excavation and demolition waste generated during demolition and construction activities, you may also review our guide on the waste transport acceptance certificate.

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.