The Disaster Law, its effects on our lives and properties (4)

DEMOLITION AND AFTERMATH

After the risk assessment is completed, the objection periods have expired, and the status of the building as a "risky structure" is finalized, the process moves to the demolition phase. With the demolition of the building, the real estate is converted into land status.

For real estate that has become land after the building on it is demolished, the previously established floor easement or condominium ownership is cancelled ex officio by the relevant land registry office upon the request of the Presidency, without seeking the consent of the interested parties. It is then registered in the name of the owners in proportion to their shares, either by valuation based on its previous status or by specifying the terms of the agreement made with the owner in the land registry. The nature of the real estate is registered ex officio according to the current situation.

Real and personal rights existing in the registry of these properties, as well as any kind of annotation restricting or prohibiting the right of transfer, continue to apply to the shares. The specified rights and annotations do not constitute an obstacle to the execution of transactions regarding consolidation, subdivision, area correction, partition, creation, abandonment, registration, and the establishment of floor easement and condominium ownership in the land registry, and the consent of the owners and interested parties is not sought for these transactions.

During the phase of establishing floor easement and condominium ownership for new structures, the specified rights and annotations are continued only on the independent units that will fall to the owner liable for said rights and annotations, without seeking consent. In the implementation area, transactions such as change of nature, consolidation, subdivision, area correction, partition, creation, abandonment, and registration are carried out or caused to be carried out ex officio by the Presidency, TOKİ, or the Administration without seeking consent.

It is essential that these parcels are evaluated by their owners. Within this framework, in the stage or block where implementation is carried out in risky areas and reserve building areas, and in the parcels where these structures are located in the case of risky structures, before the structures are demolished, decisions regarding the consolidation of parcels, implementation on an individual or combined basis or on the basis of a zoning block, subdivision, abandonment, creation, and registration in the land registry, reconstruction of buildings, sale of shares, and re-evaluation through methods such as construction in return for land share or revenue sharing and other methods are made by the SIMPLE MAJORITY of the stakeholders in proportion to their shares, regardless of whether they are stakeholders of the structure. The ratio, which was previously foreseen as two-thirds majority, has been transformed into a simple majority with the latest regulation.

The most important change introduced here is the introduction of the SIMPLE MAJORITY quorum instead of a two-thirds majority. The qualified majority requirement has been abandoned, and transformation has been made possible with the decision of more than half.

Transactions required by the new applications; consolidation, subdivision, area correction, partition, creation, abandonment, registration, and similar processes, all kinds of permits and license work and transactions related to demolition and construction, and all work and transactions that should be carried out with the consent of all owners and interested parties before other administrations/institutions and organizations are carried out based on the decision taken by the simple majority of the stakeholders in proportion to their shares.

Regarding the decision taken by the simple majority of the stakeholders, the decision minutes signed by the agreeing owners or copies of the power of attorney/contract belonging to the agreeing owners can be presented to the Administration. The land shares of those who do not participate in the decision taken by the simple majority of the stakeholders in proportion to their shares are sold to other stakeholders who have reached an agreement by auction method, with the market value determined by the Presidency, and not less than this value. The determination of market value is of great importance here. If the market value cannot be determined correctly, the owner may face the risk of being victimized.

If the sale to the stakeholders cannot be realized in this way, these shares are purchased by the Presidency, Administration, or TOKİ, which will carry out the transformation project, by paying the market value determined in risky areas and reserve building areas.

In this case, the Presidency/Administration will thus become a shareholder in the real estate.

In the case of risky structures, the sale process is repeated until the sale is made to other stakeholders who have reached an agreement or to third parties, provided that they accept the transaction in accordance with the agreement made by the decision of the agreeing stakeholders.

In the event that the lands or land shares of the owners who do not participate in the decision taken by the "simple" majority of the stakeholders in proportion to their shares are sold to third parties other than the agreeing stakeholders until the sale is made in accordance with the Law, it is mandatory for the buyer to notify the land registry office of their electronic notification address in order to perform the registration process in the land registry.

The proposal containing the decision and agreement terms taken by the owners who have decided with a simple majority in proportion to their shares, or the place where the proposal can be seen and examined, is notified to the owners who did not participate in the decision taken by the simple majority, either through a notary or by being announced at the relevant headman's office (muhtarlık) for fifteen days. In the notification made by announcement at the relevant headman's office, the last day of the announcement made at the headman's office is considered the day of notification. In this notification, it is also stated that if the proposal is not examined within fifteen days from the date the notification is made/deemed to have been made, or if the proposal is not accepted within the same period, the land shares will be sold within the scope of this Law.

Notifications to be made by the Presidency/Administration during the land share sale process are made by notifying the document to be notified via the e-Government Gateway and by announcing it at the relevant headman's office for fifteen days, and the last day of the announcement made at the headman's office is considered the day of notification. Notifications are made to owners who have notified their electronic notification addresses to the land registry via their electronic notification address. Rights such as mortgages, precautionary attachments, attachments, and usufruct rights on the shares to be sold by auction and on the real estate transferred to the Presidency/Administration or TOKİ in return for their value by agreement in the areas and parcels within the scope of the Law continue on the sale price after the sale. In other words, third-party creditors can collect their receivables from the price to be paid for the real estate in question.

With this transaction, an intervention is also made in the field of enforcement law, and the right of receivable that turns into cash through the said sale transaction finds the opportunity to be collected.

After the sale transaction, the rights in the land registry record are also cancelled ex officio by the land registry office upon the request of the Presidency.

In the event that the sale transaction is cancelled by a court decision, except for the case where it is cancelled on the grounds that the sale price was calculated incorrectly, upon the notification of the situation by the Presidency to the relevant land registry office, the sold land or land share,

+ has not been transferred to a third person after the sale transaction or

+ has not been subjected to an application that makes its direct registration in the name of the owner before the sale legally and/or physically impossible

is registered ex officio in the name of the former owner, and a legal mortgage is established and registered in favor of the buyer in the amount of the sale price until the return of the sale price is ensured.

In the event that the sale transaction is cancelled on the grounds that the sale price was calculated incorrectly, the court decision is applied by the payment of the difference between the sale price and the price to be calculated as specified in the court decision by the owner who purchased the share to the former owner whose share was sold. In other words, by accepting the sale transaction as valid, it will be ensured that the grievance is resolved by paying the difference to the former owner.

In the event that a decision is made against the Presidency/Administration by a court decision in the direction of compensating the damage of the owner whose share was sold on the grounds that the sale price was calculated incorrectly, the price ordered to be paid is paid by the owner who purchased the share to the former owner whose share was sold within 15 days at the latest from the date of the notification to be made by the Presidency/Administration on this matter. If the price is paid by the Presidency/Administration due to the failure to make the payment within the given period, the paid price is collected from the owner who purchased the share according to general provisions.

With this regulation, the Presidency/Administration will have to fulfill the compensation obligation for the former owner personally.

It should not be forgotten that the Presidency/Administration can remain as a stakeholder itself, or it can sell the land share falling to its own share to third parties.

If an agreement cannot be reached with a "simple" majority within thirty days following the notification made to the owners of the land whose building on it has been demolished, the path of urgent expropriation can also be taken by the Presidency/Administration/TOKİ for real estate owned by natural persons or private legal entities.

Expropriations to be made in accordance with this Law are considered as expropriations for the purpose of realizing settlement projects in the second paragraph of Article 3 of the Expropriation Law No. 2942 dated 4/11/1983, and the first installment payment is made at a rate of one-fifth of the amounts determined according to the aforementioned paragraph. Expropriation transactions of real estate whose ownership column is blank in the land registry, or whose heirs are not certain, for which a trustee has been appointed, which are disputed, or on which limited real rights have been established, are subject to the provisions of the same article.

The Presidency/Administration/TOKİ is authorized to obtain a certificate of inheritance, appoint a trustee, or process according to the last owner registered in the land registry for the execution of expropriation transactions and other transactions to be made in accordance with this Law. In the event that the owner registered in the land registry is deceased, the Presidency/Administration/TOKİ can obtain a certificate of inheritance for the expropriation transaction, and if necessary, can also request a correction of the record in the land registry through administrative application or litigation. In case an agreement is reached for expropriation, a contract and settlement report containing the conveyance and consent regarding the registration or cancellation of the real estate is drawn up between the Presidency/Administration/TOKİ and the interested parties and sent to the relevant land registry office to ensure that the expropriation is processed into the land registry ex officio.

As can be seen, work and transactions can be carried out with very broad powers, and the process needs to be followed well by the owners and their heirs in order to protect the right of property regarding the work and transactions carried out by the Presidency, Administration, and TOKİ.

Mediator Lawyer NURDAN HERİS