The Disaster Law, its effects on our lives and properties (6)

WHAT IS THE MINISTRY'S MOST FUNDAMENTAL AUTHORITY?

The Ministry (Ministry of Environment, Urbanization and Climate Change) is authorized to determine the standards that will form the basis for planning procedures of all types and scales, including those related to areas foreseen by special laws, to be utilized in applications in risky areas, reserve building areas, and parcels containing risky buildings; and, if deemed necessary, to determine these standards through planning decisions or to prepare, have prepared, and approve plans and urban design projects containing special standards.

Zoning and parceling plans approved for areas and parcels within the scope of this law are announced at the relevant provincial directorate of environment, urbanization and climate change for a period of fifteen days. Objections to these plans are made to the relevant provincial directorate of environment, urbanization and climate change within the announcement period, and objections are evaluated by the Ministry within five days. In case the objections are rejected, the plans become final on the date of the rejection decision without the need for any further approval process. It is clearly seen here how short the timeframes have been kept. The Ministry's announcement is FIFTEEN DAYS; someone who learns about it on the last day, for example, will only be able to file their objection on the last day. At the very least, no period after the announcement has been foreseen for objections. This period is very insufficient. The subject matter concerns applications related to the essence of the immovable property, such as zoning areas and parceling plans, and it is inevitable that keeping the period very short will cause grievances.

HOW WILL VALUATIONS BE MADE?

Valuation procedures for immovables subject to transformation within the framework of this Law, including the dilapidated structures on them, together with the improvements, i.e., structures that may belong to other persons on them, and the valuations of the immovables that will be formed by the transformation, are carried out or caused to be carried out by the Presidency, TOKİ, or the Administration.

WHAT ARE THE CONDITIONS FOR A REINFORCEMENT LOAN?

For buildings that are outside of risky areas and reserve building areas but are technically determined to be capable of being reinforced for the purposes foreseen by this Law, a reinforcement loan may be granted from the transformation projects special account by the Presidency within the framework of the procedures and principles determined by the President. This loan must be used solely for reinforcement purposes, and the determined conditions must be met. Otherwise, its repayment will be requested in accordance with the provisions of Law No. 6183 on the Procedure for the Collection of Public Receivables.

HOW LONG IS THE PERIOD FOR FILING A LAWSUIT?

A lawsuit may be filed against administrative actions taken in accordance with this Law within thirty days from the date of notification, in accordance with the Administrative Procedure Law No. 2577 dated 6/1/1982.

In these lawsuits, a stay of execution cannot be decided. Therefore, work and transactions will continue to be carried out. In the event that irreparable damages occur, since restitution in kind is not possible, only a liability for pecuniary damages can be imposed.

WHAT IS THE BAN ON SEIZURE AND PRECAUTIONARY MEASURES?

If the immovables in the transformation applications to be carried out in accordance with this Law have been transferred to the contractor undertaking the construction work based on a real estate sales promise contract or a construction contract in return for land share, until the floor easement is established on behalf of the owners, except for material and labor receivables related to that construction work, seizure and precautionary measures cannot be applied to these immovables due to the contractor's debts to third parties. HOWEVER, in case the floor easement is not established within SIX MONTHS from the start of the construction work, seizure and precautionary measures are applied to these immovables. In other words, this period is limited to only 6 months.

HOW IS REGISTRATION DONE ON BEHALF OF OWNERS WHO HAVE REACHED AN AGREEMENT?

New immovables formed in connection with the applications within the scope of this Law on immovables transferred to the Presidency or transferred to TOKİ or the Administration upon the request of the Presidency are registered in the land registry on behalf of the real persons or their heirs and legal entities with whom an agreement has been reached, upon the request of the Presidency, TOKİ, or the Administration.

The Ministry is authorized to delegate authority to TOKİ or the Administration regarding the work and transactions specified in this Law and to determine which of these work and transactions will be carried out by TOKİ or the Administration.

WHEN CAN CONTRACTORS SELL THEIR SHARES?

In case applications are made by real persons and private law legal entities in the areas and parcels within the scope of this Law, the sale of independent units falling to the share of the contractors undertaking the construction work can be made according to the progress level of the construction and upon the permission of the Administration. The contractor applies to the Administration for permission to sell the independent units falling to their share. The Administration determines the completion rate of the construction by making an on-site inspection or by checking the building inspection system and notifies the relevant land registry office that the sale of independent units falling to the contractor's share can be made at a rate below "ten percent" of this rate. For the sale of independent units falling to the contractor's share at the completion rate of the construction or at a rate above this, the consent of all owners is required.

I do not think that the prior consent of all owners obtained while signing other contracts would be valid. In accordance with the purpose of the law, only the consent obtained by the contractor who has received permission from the Presidency/Administration, and only on a date after the permission, should be accepted as valid.

PROCEDURE FOR TERMINATION OF CONTRACT WITH THE CONTRACTOR

In the areas and parcels within the scope of this Law; after an agreement is reached by unanimity or a decision is "taken" by the "simple" majority of the stakeholders in proportion to their shares, if the construction of the new building has not been started within one year due to reasons originating from the contractor, or if the construction work has been stopped at a certain level and construction activity has not been continued with the team and equipment required to finish the project for at least six months, a decision can be taken by the "simple majority" of the owners in proportion to their shares for the termination of the contracts made.

With this decision, an application is made to the Presidency, and it is requested to determine whether the construction of the new building has been started or whether the construction work is continuing with the team and equipment at a level required to finish the project. If the specified situations are determined by the Presidency, the contractor is warned by giving a period of thirty days to start or continue the work, otherwise, the contracts will be terminated ex officio as of the end date of this period.

In case the work is not started or continued despite this warning, the contracts regarding construction signed between the right holders and the contractor are deemed to have been terminated ex officio as of the date the thirty-day period expires, without the need for further warning and without seeking the consent of the interested parties.

After the termination, the contracts regarding construction that have been annotated in the registry of the immovables are deleted upon the request of the owners or the Presidency. General legal provisions are applied regarding the work done until the date of termination, transferred shares, payments made, and other matters.

Rental assistance payments made by the contractor to the right holders until the date of termination cannot be requested back from the right holders.

HOW WILL LICENSED ORGANIZATIONS WITHIN THE SCOPE OF THE LAW BE DETERMINED?

Organizations to be licensed by the Presidency regarding applications within the scope of this Law and regarding taking decisions and executing applications for these applications may operate. It is mandatory to employ civil engineers, land surveyors, architects, urban planners, valuation experts, and lawyers in the organizations to be licensed. The conditions that the organizations to be licensed must possess, the number and qualifications of the personnel to work in these organizations, their working procedures and principles, and other matters are determined by the regulation to be prepared by the Presidency, and the Presidency is authorized to audit the activities of these organizations.

WHAT WILL HAPPEN TO PARTITION SUITS?

After the demolition of the buildings within the scope of this Law, a lawsuit can be filed for the dissolution of the partnership in the immovable that has become a plot of land in accordance with the provisions of the Turkish Civil Code No. 4721. In addition, the possibility of resolution through the mediation institution before filing partition suits may accelerate the process.

However, the fact that a lawsuit has been filed for the dissolution of the partnership does not constitute an obstacle to taking a decision by the simple majority of the stakeholders in proportion to their shares within the scope of this Law and to taking action according to this decision.

Mediator and Lawyer NURDAN HERİS