Antalya Yapı Kayıt Belgesi ve İmar Barışı

UNDER WHICH CONDITIONS IS THE BUILDING REGISTRATION CERTIFICATE CANCELLED?
WHAT IS THE PROCEDURE AGAINST THE CANCELLATION OF THE BUILDING REGISTRATION CERTIFICATE? HOW TO FILE AN ANNULMENT LAWSUIT AGAINST THE CANCELLATION OF THE BUILDING REGISTRATION CERTIFICATE? WHAT ARE THE LEGAL APPLICATIONS THAT CAN BE MADE AFTER THE CANCELLATION OF THE BUILDING REGISTRATION CERTIFICATE? WHAT KIND OF LEGAL SANCTIONS ARE APPLIED TO THE BUILDING OWNER WHOSE BUILDING REGISTRATION CERTIFICATE IS CANCELLED?

First of all, it should be stated that; the building registration certificate application system within the Ministry of Environment and Urbanisation was established entirely on the basis of declaration, applications were received via e-government and no inspection was carried out before the building registration certificate was issued.

In general practice, in order to obtain a building registration certificate, citizens knowingly or unknowingly applied for buildings that are not covered by the zoning peace and obtained a building registration certificate by paying the fee.

As a result of the inspections carried out by the municipalities or Provincial Directorates of Environment and Urbanisation, the building registration certificates obtained for the structures that are not covered by the zoning peace and the building registration certificates that are deemed to be against the procedure or the law are cancelled by the Ministry of Environment and Urbanisation.

A-According to the Provisional Article 16 of the Zoning Law No. 3194 and the Communiqué on the Procedures and Principles Regarding the Issuance of Building Registration, the structures that cannot benefit from the zoning peace are as follows:

1- Structures built after 31/12/2017

2- Structures located on the immovable properties subject to private property belonging to third parties

3- Buildings on immovables belonging to the Treasury, which are designated as social reinforcement areas as a result of finalised plans and allocated to the relevant institutions by the Ministry of Finance for the same purpose

4- Structures located within the Bosphorus coastline and foresight zone defined in the Bosphorus Law No. 2960, in the area whose boundaries and coordinates are shown in the sketch and list attached to the Law

5- Structures located in the historical peninsula of Istanbul in the areas whose boundaries and coordinates are shown in the sketch and list attached to the Law

6- Structures located in the Historic Area designated in the subparagraph (e) of the first paragraph of Article 2 of the Law No. 6546 on the Establishment of Çanakkale Wars Gallipoli Historic Site Presidency.

The building registration certificates obtained for the structures in all areas other than the structures listed above and built before 31 December 2017 are valid.

B-What are the Cancellation Process and Reasons for Cancellation of the Building Registration Certificate?

As it is known, the Ministry of Environment and Urbanisation is authorised to cancel the Building Registration Certificate. In practice, the Ministry has delegated this authority to the Provincial Directorates of Environment and Urbanisation.

Ex officio inspections of the Provincial Directorates of Environment and Urbanisation, notifications made by municipalities and special provincial administrations and complaints made by citizens are examined and the building registration certificate is cancelled.

The reasons for the cancellation of the C-Building Registration Certificate are as follows;

1- Determination that it was built after 31 December 2017

2- Obtaining a building registration certificate for the building located in areas not covered by the zoning peace,

3- As a result of declaring the land or building area lower than it should be, the determination that the Building Registration Certificate fee has been paid incompletely is not the reason for the cancellation of the Building Registration Certificate alone. However, if the missing amount is not paid within the period given by the Provincial Directorate of Environment and Urbanisation,

If these issues are detected, the Building Registration Certificate is cancelled by the Provincial Directorates of Environment and Urbanisation. And the building registration certificate loses its validity and the rights provided to the building owner are taken back.

It should be noted that; if the building owner has overpaid for the Building Registration Certificate after the application; as stated in paragraph 10/2-b of the Building Registration Certificate Communiqué; errors that cause overpayment of the Building Registration Certificate fee (such as over-declaration of the building or land area) are not a reason for cancellation.

One of the most important reasons for cancellation of the Building Registration Certificate and the most common reason for cancellation in practice is the determination that “the structures were built after 31 December 2017”.

In the decision of the 5th Administrative Case Chamber of the Istanbul Regional Administrative Court dated 21.01.2020 and numbered E:2019/2619, K:2020/94;

“… obtaining Google Earth satellite images (aerial photographs) of the immovable for 2017 and 2018 from the relevant institutions and, if deemed necessary, clarifying the issue of whether the building was built before or after 31/12/2017 with the discovery and expert examination to be made on site, and determining whether the building subject to the dispute is a building for which a Building Registration Certificate cannot be issued by evaluating the expert report together with the photographs and other information and documents attached to the application form regarding the building registration certificate subject to the case”

the construction date of the building should be determined.

If it cannot be determined when the building was built from the aerial photographs, and if the time when the building was built has become suspicious and the construction date of the building cannot be clearly determined, this will create a situation in favour of the building owner, in general terms, if it can be proved that the building was built before 31 December 2017 with evidence such as an invoice received during the construction of the building, a photograph taken, witness statements or a previously kept building holiday report, this will create a positive situation in the case of the building owner.

If the Building Registration Certificate fee is overpaid, the relevant person may apply to the Provincial Directorate of Environment and Urbanisation with a petition for the return of the overpaid part. If the administration does not respond to this application within 60 days, it is possible to file a lawsuit in the Administrative Court for the refund of the overpaid amount.

What can be done after the Building Registration Certificate is cancelled?

D-A lawsuit should be filed against the cancellation of the building registration certificate;

After the Building Registration Certificate is cancelled, the building owner faces serious sanctions. For this reason, it is important to file a lawsuit against the action of the Provincial Directorate of Environment and Urbanisation regarding the cancellation of the Building Registration Certificate, which is the reason for this whole process. Otherwise, if the lawsuit is not filed, the cancellation decision taken for the building registration certificate will be finalised, and it will not be possible to obtain results even if the building owner files a lawsuit against the other transactions established on the basis of this transaction. Our advice to the building owner whose building registration certificate has been cancelled will be as follows; In this case, the Municipality should definitely initiate the legal process by getting support from a competent lawyer or law firm that is expert in zoning and administrative cases.

In which court should the cancellation lawsuit be filed against the cancellation of the e-Building registration certificate?

Since the action or decision of the Provincial Directorate of Environment and Urbanisation regarding the cancellation of the building registration certificate is an administrative action, the lawsuit to be filed against this action must be filed in the Administrative Court in the province where the building is located. If there is no Administrative Court in the province where the building is located, the lawsuit must be filed in the Administrative Court within the jurisdiction of that province.

F-When or how soon should the cancellation lawsuit be filed against the cancellation of the building registration certificate?

According to the Law No. 2577 on Administrative Procedure, the lawsuit against the cancellation of the Building Registration Certificate must be filed within a period of 60 days from the date of notification of the transaction, i.e. the date following the notification of the decision or transaction of the Provincial Directorates of Environment and Urbanisation to the building owner. Although it is not mandatory, it is possible to appeal to the administration in accordance with Article 11 of the Administrative Procedure Law No. 2577 before filing a lawsuit. However, if this method is preferred, the time limits for filing a lawsuit should be taken into consideration. Accordingly; “Before filing an administrative lawsuit, the relevant persons may request the abolition, revocation, modification or new action to be taken from the higher authority, or if there is no higher authority, from the authority that has taken the action, within the administrative lawsuit filing period. This application shall suspend the administrative action filing period that has started to run. If no reply is given within thirty days, the request shall be deemed rejected. In the event that the request is rejected or deemed rejected, the period for filing a lawsuit starts to run again and the time elapsed until the date of application shall be taken into account.”

G-What are the Legal Sanctions to be Faced by the Building Owner in the Process After the Cancellation of the Building Registration Certificate?

In the process following the cancellation of the Building Registration Certificate, a decision on demolition and fine is taken in accordance with the Zoning Law.
Since the building whose Building Registration Certificate is cancelled will be considered as a building “contrary to the zoning legislation”, the Provincial Directorate of Environment and Urbanisation will also notify the municipality or special provincial administration and request action against the building owner in accordance with the Zoning Law.

The municipality or special provincial administration shall take the following decisions and actions against the owner of the building in accordance with Articles 32 and 42 of the Zoning Law No. 3194;

The building is SEALED by issuing a Building Holiday Record about the building,
The information that the building is in violation of the zoning legislation is recorded in the declarations section of the title deed records.
According to paragraph 2 of Article 42 of the Zoning Law, an ADMINISTRATIVE FINE is imposed,
If the structure is not demolished or the contradiction is not eliminated within the given period of time, a CONSTRUCTION DECREE is taken according to Article 32 of the Zoning Law.
If the structure is not demolished or the contravention is not eliminated within the given period of time, a SECOND ADMINISTRATIVE MONEY FINE is imposed according to paragraph 3 of Article 42 of the Zoning Law.
Against all of these transactions separately or together, according to the Administrative Procedure Law No. 2577, a lawsuit for the cancellation of the administrative action must be filed by the building owner within 60 days following the date of notification of the transaction. Our advice to the building owner, who is decided to impose administrative sanctions due to the cancellation of the building registration certificate, will be as follows; In this case, he / she should definitely initiate the legal process by getting support from a competent lawyer or law firm that is expert in Municipality, Zoning and Administrative cases.

Investigation is opened against the building owner for the offence of “False Declaration” in the issuance of the official document.

According to paragraph 8/2 and subparagraph 10/2-b of the Building Registration Certificate Communiqué, if it is decided to cancel the Building Registration Certificate for the reasons mentioned above; after the cancellation, the Provincial Directorate of Environment and Urbanisation will file a criminal complaint against the applicant building owner who made a false statement in accordance with Article 206 of the Turkish Penal Code for the crime of “false statement in the issuance of official documents”. Thereupon, a criminal investigation is initiated by the Chief Public Prosecutor’s Office and a public lawsuit may be filed with a request for punishment.

Our advice to the building owner, who has been investigated as a result of the decision to impose administrative sanctions on him due to the cancellation of the building registration certificate, will be as follows; In this case, he should definitely have his defence in the criminal investigation or criminal case opened against the building owner by getting support from a competent lawyer or law firm who is an expert in criminal cases, municipality and zoning cases.

Investigation is opened against the building owner for the offence of “Causing Zoning Pollution”.

If the structure that has become “contrary to the zoning legislation” as a result of the cancellation of the Building Registration Certificate; If it is in the nature of a BUILDING and is within the municipal boundaries or in places subject to special zoning regime, an investigation is requested by the relevant Municipality or Special Provincial Administration in accordance with Article 184 of the Turkish Penal Code and an investigation is initiated by the Chief Public Prosecutor’s Office.

If the building for which the building registration certificate is cancelled is located in areas subject to special laws such as the Bosphorus Law No. 2863 or the Law No. 2960 on the Protection of Cultural and Natural Heritage (Bosphorus, natural protected area, archaeological protected area, historical protected area, urban protected area, etc.), a trial shall be held in accordance with the provisions of intellectual cumulation pursuant to Article 44 of the Turkish Criminal Code in terms of the crime of zoning pollution and opposition to the relevant special law.

The Workplace Opening and Operation Licence previously granted to the building owner shall be cancelled by the Relevant Administration.

In Article 6/8 of the Building Registration Certificate Communiqué; it is regulated that the workplace opening and working licence will be issued without seeking a certificate of occupancy in the buildings for which a Building Registration Certificate is issued. For this reason, after the building registration certificate is cancelled, the workplace opening and working license issued on the basis of this document is also cancelled.

In addition, licenses, permits and documents such as tourism business certificate, fuel dealership license, health institution license, private school license issued in accordance with special laws on the basis of the Building Registration Certificate shall also be cancelled.

According to the Administrative Trial Procedure Law No. 2577, against the cancellation decisions of the Workplace Opening and Operation License or other related licenses, the cancellation decision must be filed to the Administrative Court where the building is located within 60 days following the date of notification of the transaction to the building owner.

Our advice to the building owner who has been decided to impose administrative sanctions due to the cancellation of the building registration certificate will be as follows; In this case, the Municipality should definitely initiate the legal process by getting support from a competent lawyer or law firm that is an expert in Zoning and Administrative cases.

Water, Electricity and Natural Gas Subscription previously given to the building owner is cancelled.

In paragraph 3 of the Provisional Article 16 of the Zoning Law No. 3194; It is regulated that water, electricity and natural gas can be temporarily connected to the buildings that have received a Building Registration Certificate, taking into account the subscriber group defined in the relevant legislation. Therefore, after the building registration certificate is cancelled, the water, electricity and natural gas subscriptions given on the basis of this document are also cancelled. In this case, the building owner will become an unsubscribed user.

If there are Treasury or Municipality Lands previously sold to the building owner, the sale of these lands will be cancelled.

In the 7th and 8th paragraphs of the Provisional Article 16 of the Zoning Law No. 3194; it is regulated that if the buildings for which a Building Registration Certificate is obtained are built on immovables belonging to the Treasury or the municipality, these immovables will be sold to the owners of the Building Registration Certificate and their legal or contractual successors upon their application.

According to paragraph 11/2 of the General Communiqué No. 396 on National Real Estate, the title deed of the immovables sold shall be recorded as “This immovable was sold based on the Building Registration Certificate dated …………. and numbered …………. If this document is cancelled for any reason, the sale transaction is cancelled and the immovable is registered in the name of the Treasury and the price paid is returned to the right holder without interest.”

Therefore, after the building registration certificate is cancelled, the sales transactions made on the basis of this document are also cancelled, the price paid is returned without interest and ecrimisil is accrued on behalf of the building owners.

7.Although the Change of Type and Condominium Ownerships made on the basis of the Building Registration Certificate cannot be cancelled after the cancellation of the building registration certificate, a warning annotation will be placed in the Land Registry.

In the 5th paragraph of the Provisional Article 16 of the Zoning Law, it is regulated that a change of type and condominium ownership can be established for the building with a building registration certificate without seeking a certificate of occupancy.

Regarding the status of the previously obtained change of type and condominium transactions after the cancellation of the building registration certificate, “In the event that the building registration certificate based on the transaction after the transaction made in the Land Registry Directorate is cancelled by the Provincial Directorate of Environment and Urbanisation and our directorate is notified, it is sufficient to make a warning indication in the declarations section of the registration of the immovable / independent sections that are treated with the building registration certificate.”

In other words, after the building registration certificate is cancelled, the change of type and condominium ownership made on the basis of this document will not be cancelled, it will only be sufficient to make a warning indication in the declarations section of the registration of the immovable/independent sections of the immovable/independent sections with the building registration certificate. This situation will result in the relevant building not being eligible for credit.

As seen in the light of the legal grounds explained above, after the Building Registration Certificate is cancelled, the building owner faces serious sanctions. For this reason, it is important to file a lawsuit against the Environment and Urbanisation procedure regarding the cancellation of the Building Registration Certificate, which is the reason for this whole process. Otherwise, since this transaction will be finalised, it will not be possible to obtain results even if a lawsuit is filed against other transactions established on the basis of this transaction, and we strongly recommend that the building owner who is faced with sanctions should seek support from a competent lawyer or law firm specialised in Municipal, Zoning and Administrative cases in the struggle and process of seeking rights.

HOW TO CANCEL THE BUILDING REGISTRATION CERTIFICATE OBTAINED FOR THE STRUCTURES LOCATED ON THE IMMOVABLE PROPERTIES SUBJECT TO PRIVATE PROPERTY BELONGING TO THIRD PARTIES? HOW CAN THE PERSONS WHOSE RIGHTS HAVE BEEN VIOLATED CANCEL THE BUILDING REGISTRATION CERTIFICATE OBTAINED AGAINST THEM?
Not every building registration certificate obtained will not be accepted as legally valid, and may also lead to some unlawfulness. For example

If only one of the shareholders obtains a building registration certificate for buildings contrary to the zoning built on shared immovables by stating that the building belongs to him, the property rights of other shareholders will be violated.
If it is not clear by whom the buildings constructed on treasury lands and forest areas were built, the rights of the real right holders will be harmed if people who do not have the right to the illegal building built by someone else obtain a building registration certificate.
Likewise, since it is not possible to apply for a building registration certificate as a legal entity regarding illegal buildings in cooperatives or sites, common areas and social facilities, the building registration certificates to be obtained by private individuals regarding these areas can be used to obtain benefits from the site residents in the future.
The building registration certificate obtained by persons occupying the common areas of the apartment building may violate the property rights of other floor owners.
The building registration certificate obtained for pasture areas allocated for common use will negatively affect the rights of other users.
In case of the existence of these legal problems that we have explained above and listed as examples, how will these violations of property rights be eliminated? How will the cancellation of the building registration certificate that violates the law and damages the property rights of others be done? Above all, is it possible to cancel the building registration certificates that harm the rights of others?

First of all, it should be stated that; In the Zoning Peace regulation, which was adopted on 11.05.2018 as Provisional Article 16 of the Zoning Law, it is stipulated that the building registration certificate cannot be issued for the buildings on private property and the buildings located on the social reinforcement areas belonging to the public with the regulation “The buildings located on the immovables subject to private property belonging to third parties and the buildings located on the lands allocated for social reinforcement belonging to the Treasury cannot benefit from the provisions of this article”.

As the building registration certificates obtained for these places cannot be valid, 3 persons whose property rights are violated or the person claiming to be the right holder may request the cancellation of the building registration certificate by applying to the Provincial Directorate of Environment and Urbanisation to which the real estate is connected by making an administrative application in accordance with Article 10 of the İYUK. Since the Building Registration Certificate is not directly notified to the third parties whose rights are violated, first of all, for the cancellation of the building registration certificate, it will be necessary to apply to the administrative authority that issued this document and request the cancellation of the document. If the relevant person’s request or the cancellation of the building registration certificate is responded negatively or not responded at all; the right holder may file an action for cancellation to the administrative court where the building is located by the third person.

It is important to underline one point here; if the person has not filed a lawsuit directly against the cancellation of the building registration certificate, but has applied to the administration, he/she should pay attention to the deadlines. According to the İYUK, if the administration does not respond to the application within 60 days, the application will be deemed to be rejected and the lawsuit period will start to run. If the Administrative Authorities reject the cancellation application, a lawsuit can be filed at the Administrative Court for the cancellation of the building registration certificate within 60 days.

The court will reach a conclusion by examining all the evidence to be presented by the parties together. At this point, the building registration certificate application made by the building owner and its annexes, the discoveries to be made in the relevant building, the expert report regarding the discovery and the structure, satellite images obtained by the administration, etc. evidence will be important. We recommend that this process, which requires many details and legal steps, be carried out with the support of a competent and expert lawyer in administrative law cases, municipal law cases and Zoning Law cases.