The Disaster Law, its effects on our lives and properties (2)

CONCEPTS

Disasters do not happen according to a plan or program; they develop suddenly, and one must not be caught unprepared. Therefore, in order for the implementation to be carried out, it is necessary to know in advance which institutions and concepts are mentioned in the law.

MINISTRY: Refers to the "Ministry of Environment, Urbanization and Climate Change".

ADMINISTRATION: Refers to municipalities within municipal and adjacent area boundaries, special provincial administrations outside these boundaries, metropolitan municipalities in metropolitan cities, and district municipalities within metropolitan municipal boundaries if authorized by the Ministry.

RESERVE BUILDING AREA: Refers to areas determined by the Ministry, either upon the request of TOKİ or the Administration, or ex officio, to be used in applications to be carried out in accordance with this Law.

RISKY AREA: Refers to an area decided by the President that carries the risk of causing loss of life and property due to the ground structure or the construction on it.

RISKY BUILDING: Refers to a structure, whether inside or outside a risky area, that has completed its economic life or has been determined based on scientific and technical data to carry the risk of collapse or severe damage.

TOKİ: Refers to the Housing Development Administration of Turkey.

PRESIDENCY: Refers to the Urban Transformation Presidency.

HOW WILL THE IMPLEMENTATION BE CARRIED OUT? HOW IS A RISKY BUILDING DETERMINED?

The Urban Transformation Presidency (hereinafter referred to as the "Presidency") has prepared a regulation regarding the identification of risky buildings. However, the latest amendments dated November 9, 2023, have not yet been incorporated into this regulation. Therefore, we will not mention them here, but the regulation will be largely utilized while the implementation is being carried out. Property owners, within the scope of these legislative provisions, will have the risk assessment conducted by institutions and organizations licensed by the Ministry, at their own expense. They will report the result to the Presidency and the Administration (the relevant municipality or special provincial administration).

The Presidency/Administration can also determine a risky building EX OFFICIO. Or it may grant a period to the property owners to conduct the risk assessment. If the owners do not perform the assessment within the time granted to them, the Presidency/Administration may perform the assessment ex officio. The Presidency may also request the Administration to perform this assessment.

What happens if the risky building assessment by the Presidency/Administration is obstructed?

Upon the request of the Presidency/Administration, with the written permission to be given by the local administrative authority and with the help of sufficient law enforcement officers, the assessment can be performed ex officio, even by opening/having opened locked doors/areas. This is an important issue; with this regulation, the use of force on the real estate under the ownership of individuals has been foreseen.

What happens if the building is determined to be a risky building as a result of the assessment?

Owners may file an objection within FIFTEEN DAYS.

Where is this objection filed?

A technical committee will be formed. Objections will be made to this technical committee.

How will this committee be formed?

It will be a technical committee of SEVEN people in total, consisting of four people to be appointed by universities from among the faculty members of the relevant professional discipline upon the request of the Presidency, and three people working in the Presidency. This committee will decide on the objections.

Afterwards; the Presidency/Administration notifies the declarations section of the land registry within TEN WORKING DAYS at the latest from the date of determination. A report containing information regarding the determination is POSTED ON THE BUILDING in a way that constitutes notification to the holders of real and personal rights. It is notified to the owners via the e-Government Gateway and is announced at the relevant MUHTARLIK (neighborhood headman's office) for a period of FIFTEEN DAYS. The last day of the announcement made at the Muhtarlık is considered as NOTIFICATION MADE. Risky buildings are also announced on the Presidency's website for a period of FIFTEEN DAYS.

HOW IS THE RESERVE BUILDING AREA DETERMINED?

The authority to determine reserve building areas belongs to the President and the Presidency according to the characteristics of the real estate. This situation is listed in items below according to various possibilities.

1. Upon the request of the Presidency; including places within the scope of the Law No. 189 dated 28/12/1960 on the Execution of Expenditures for the Settlement Needs of the Ministry of National Defense and the Authorization to Sell Real Estate Used by This Ministry that are No Longer Needed, and the Military Forbidden Zones and Security Zones Law No. 2565 dated 18/12/1981, among the real estate in the private ownership of the Treasury located in risky areas and reserve building areas;

a) Those allocated to public administrations, by Presidential decree,

b) Those not allocated to public administrations, by taking the opinion of the relevant public administration,

are transferred to the Presidency or can be transferred to TOKİ and the Administration FREE OF CHARGE upon the request of the Presidency.

2. Areas that are not registered, which are located in areas where applications are made according to this Law or determined by the Presidency to be used within the scope of this Law, are transferred to the Presidency after being registered in the name of the Treasury in the land registry, or can be transferred to TOKİ and the Administration free of charge upon the request of the Presidency.

3. Real estate determined by the Presidency not to have been used in accordance with its purpose within three years from the date of allocation and transfer, and within the extended period where deemed necessary, is registered in the name of the Treasury in the land registry free of charge and ex officio, or transferred to the previous public administration owner.

4. Real estate needed by the Presidency for the relocation of those living in risky areas and risky buildings, which is within the scope of the Pasture Law No. 4342 dated 25/2/1998, is counted among the areas in subparagraph (g) of the first paragraph of Article 14 of Law No. 4342, its allocation purposes are changed according to the same article and it is registered in the name of the Treasury in the land registry; applications are made regarding this real estate according to this Law.

5. In order for real or private legal entities to request that the real estate they own be determined as a reserve building area; it is required that consent be given for the transfer of ownership of thirty percent of the land square footage that forms the basis for construction of this real estate, or that the value of the same amount be given to the Presidency to be recorded as revenue to the special account of transformation projects.

WHAT ARE THE SANCTIONS TO BE APPLIED TO RISKY BUILDING DETERMINATION ORGANIZATIONS?

Some institutions and organizations are granted licenses to evaluate the risk status of buildings. These licenses are within the scope of the Building Inspection Law No. 4708 dated 29/6/2001 and relevant legislation, and are given to building inspection organizations and laboratory organizations that have received an authorization certificate from the Ministry. However, as we have stated before, due to the seriousness of the subject and its vital importance for people, a very good inspection mechanism and sanctions must also be regulated while performing their duties. In the law numbered 6306, briefly called the "Disaster Law", additional applications and sanctions have been regulated in addition to the existing legislation. Depending on the nature of the act, the sanction to be applied also varies.

First of all, the Presidency, i.e., the Urban Transformation Presidency, will be able to inspect the activities of institutions and organizations licensed for risky building assessment. Administrative sanctions listed below will be applied to licensed institutions or organizations that do not fulfill their duties in accordance with the principles stipulated in the legislation, depending on the situation of the committed act and circumstances.

a) Acts for which a written warning penalty will be given:

1) Failure to correct the deficiencies identified in terms of technique in the risky building assessment report within the given period

2) Conducting a risky building assessment upon the request of someone who is not a building owner

3) Conducting a risky building assessment for the second time regarding a building that has previously been the subject of a risky building assessment

b) Acts for which an administrative fine of 15,000 Turkish liras will be given:

1) Detection of another act requiring a warning penalty after receiving a written warning penalty twice

2) Determination of a risky building as risk-free or a risk-free building as risky as a result of taking the data regarding the building incompletely or incorrectly in the risky building assessment

3) Preparation of a risky building assessment report without conducting a technical examination on the building

c) Acts for which a license cancellation penalty will be given:

1) Failure to meet the conditions within the given period upon the loss of licensing conditions

2) Detection that false information and documents were submitted in the license application

3) Preparation of a risky building assessment report regarding a non-existent building

4) Having previously received an administrative fine three times

ç) Building inspection organizations and laboratory organizations that have been licensed to conduct risky building assessments and have received an authorization certificate from the Ministry according to the Building Inspection Law No. 4708 dated 29/6/2001, cannot engage in risky building assessment activities during the same period if they receive a penalty of being banned from taking new jobs for a certain period according to Law No. 4708. In case the authorization certificates of building inspection organizations and laboratory organizations are cancelled and their activities are terminated according to Law No. 4708, their risky building assessment licenses are also cancelled.

The application of the penalties explained above will be possible by following the procedure below.

The penalties in question are given by taking the defense of the relevant licensed institution or organization and are notified in writing. Administrative fines are paid within one month from the notification. Administrative fines not paid in due time are followed up and collected by tax offices according to the provisions of the Law on the Procedure for Collection of Public Receivables No. 6183 dated 21/7/1953. An objection can be filed against the administrative fine to the authorized administrative court within thirty days. Objections are examined over the documents in cases where there is no necessity and are decided as soon as possible. Court decisions given upon objection are final. The administrative fine is applied by increasing it at the revaluation rate determined and announced in accordance with the provisions of the repeated Article 298 of the Tax Procedure Law No. 213 dated 4/1/1961 for that year, starting from the beginning of each calendar year. In this way, fractions of one Turkish lira are not taken into account in the calculation of the administrative fine.

Institutions and organizations whose licenses have been cancelled may continue their activities until they complete the deficiencies identified in the reports they previously prepared, provided that they do not take on new risky building assessment work.

Partners of an organization whose license has been cancelled cannot be partners in another licensed organization for five years, even if they transfer their shares in this organization; licenses are not granted to organizations established by them, and they cannot take part in risky building assessment.

Engineers who cause licensed organizations to be fined twice in accordance with subparagraphs (2) and (3) of paragraph (b) of the eighth paragraph, and engineers who prepare a risky building assessment report regarding a non-existent building, cannot take part in another licensed institution and organization, cannot be partners in another licensed organization for three years, and licenses are not granted to organizations established by them. The status of these engineers is reported to the relevant professional chamber. The professional chamber takes action against these engineers according to its own legislation and reports the result to the Presidency.

Up to this stage, we have examined the institutions and organizations in the system, what the concepts are, how a risky building is determined, how and by whom the reserve area is determined, and what the sanctions to be applied to institutions and organizations that perform incorrect applications are. In our next article, we will continue our work regarding the details and how the applications will be carried out.

Mediator Lawyer NURDAN HERİS