Objection and Cancellation Procedures against Zoning Fines

Building Control Directorates of Municipalities and Special Provincial Administrations are tasked with preventing illegal construction contrary to the zoning legislation in order to protect the order and aesthetics of cities. Structures built without a license or in violation of the license are not only subject to a demolition order, but their owners may also be subject to very high zoning fines. These sanctions aim to create an environment in compliance with the zoning order and to prevent illegal construction.

What is an Illegal Building?

Pursuant to Article 21 of the Zoning Law No. 3194, it is prohibited to construct a building without a license from the municipality or special provincial administration. In this context

• Structures built without a license, i.e. unlicensed structures,
• Structures and major renovations in licensed buildings in violation of the license and its annexes

These structures are considered as “Illegal Structures” or “Unconforming Structures” and the owners of these structures are subject to the penalties stipulated in the Law.

What Actions are Taken When an Illegal Building is Detected?

In the event that a building without a license or in violation of the license and its annexes is detected, the following steps are followed:

1. Building Holiday Report is issued and the construction is sealed: The relevant municipality or special provincial administration shall issue a building holiday report in accordance with Article 32 of the Zoning Law No. 3194. With this report, the current status of the building is recorded and the construction is sealed and stopped.
2. The report is recorded in the Land Registry: The status of the illegal building is notified in writing to the land registry office by the relevant administration and this information is entered in the declarations section of the land registry records within seven days at the latest.
3. Zoning Fines are Applied: An administrative fine is imposed according to Article 42, paragraph 2 of the Zoning Law No. 3194 due to the violation of the zoning legislation.
4. Failure to Obtain a License or Failure to Remedy the Violation:
   • When a Deadline is Given: If the license is not obtained or the contradictions are not corrected within the period given after the determination,
   • Failure to Fulfill the Deadline: If these conditions are not fulfilled within a maximum of one month, a demolition decision is taken against the building according to Article 32 of the same Law.
5. A criminal case is filed: A criminal case is filed against the owner of the building at the Criminal Court of First Instance for “causing zoning pollution” in accordance with Article 184 of the Turkish Penal Code.

To whom is a zoning fine imposed?

Following the detection of an unauthorized construction, a zoning fine is imposed by the municipality or special provincial administration council in accordance with Article 42, paragraph 2 of the Zoning Law No. 3194. This fine is stipulated for the act of “building in violation of the zoning legislation” and the calculation method of this zoning fine and who will be imposed a zoning fine in cases of building without a license or in violation of the license and its annexes are regulated in detail.

According to the Zoning Law No. 3194, zoning fines may be imposed on the following persons:

• Owner of the building,
• Building contractor,
• The relevant focal person who fails to notify the administration within six working days.

In order for a sanction to be fair and lawful, it is of great importance that the punishment is given to the right person. In accordance with the principle of “individuality of punishment”, which is one of the fundamental principles of law, the punishment arising from an act should only be applied to the person who committed that act. Especially in cases of violations of the zoning legislation, this principle must be strictly adhered to.

In zoning law, mistakes are frequently made regarding the addressee of fines imposed for unlicensed or illegal structures. The owner of the building does not necessarily have to be the same person as the owner of the immovable. Therefore, if it is determined that the person who constructed the unlicensed structure is someone other than the owner of the immovable, the fine should be imposed directly on the person who constructed the structure. Otherwise, penalizing the owner of the immovable will be contrary to the principle of “individuality of penalties” and an unlawful situation will arise.

In the legal system, in order for administrative sanctions to be lawful, they must only be imposed on those who are actually responsible. Zoning fines imposed on the wrong persons may be the subject of annulment lawsuits, as well as the legal liability of the relevant administration. Therefore, the main points to be considered in the imposition of fines are as follows:

• The person who committed the act must be identified. It must be clearly determined by whom the structure was built.
• The difference between the owner of the immovable property and the owner of the building should be recognized. If the owner did not take part in the construction process, he should not be held liable for the penalty.
• The legal process must be carried out meticulously. Erroneous penalties may both cause victimization of individuals and expose the administration to legal sanctions.

In order for zoning fines to be lawful, they should only be imposed on the persons who commit the act. Otherwise, there will be a violation of the law and the fines may be annulled. In this context, the main issues to be taken into consideration are as follows:

1. Construction Contracts in Return for Flats: In construction contracts in return for flats, it is of great importance that the administrative sanctions to be imposed due to transactions contrary to the license are directed to the correct addressee. Since the contractor is the actual implementer of the construction in such projects, the zoning fines to be imposed due to unlicensed or unlicensed transactions should be directed directly to the contractor. Otherwise, fines issued on behalf of the landowner will be unlawful and may be subject to annulment.

In the decision of the 14th Chamber of the Council of State dated 27.02.2019 and numbered E:2018/5803, K:2019/1436, “In accordance with the principle of individuality of fines, the fine to be imposed within the scope of Article 42 of the Zoning Law No. 3194 must be issued on behalf of the person who actually built or had built the unlicensed or unlicensed structure. In other words, it is essential that the fine is directed directly to the owner of the building. However, since the owner of the building and the owner of the immovable property may not always be the same person, if it is determined that the person who built the unlicensed building is different from the owner of the immovable property, the fine must be applied directly to the person who built the building, not to the owner of the immovable property.”, it is clearly emphasized that zoning fines should be directed to the correct addressee and the principle of individuality of fines should be strictly adhered to.

2. Subsequent Independent Section Purchasers: A zoning fine cannot be imposed on persons who subsequently purchase an independent section due to violations of the license during the initial construction phase of the building. Since the violations occurred during the period of the previous owner, the responsibility cannot be imposed on the new buyer.

As a matter of fact, in the decision of the 6th Chamber of the Council of State dated 05.11.2020 dated 05.11.2020 and numbered E:2019/11126 K:2020/10449, it was concluded that “While the defendant administration should conduct the necessary research on who made the contradictions, identify the person or persons who carried out the construction activity contrary to the legislation and apply the administrative sanction to these persons or persons, it has been concluded that there is no compliance with the law in the transaction regarding the punishment of the plaintiff with a fine as “building owner” together with all persons who appear as independent section owners in the title deed, due to the contradictions detected for four different blocks and common areas, in violation of the principle of individuality of fines.” and emphasized that the zoning violations committed during the period of the previous owner cannot be imposed on the new owners.

3. Owners’ Right to Prove Claims of Non-Compliance: In the case of subsequent discrepancies in licensed buildings, if the owner at the time of the issuance of the building holiday report proves that he/she did not make the discrepancy and that it existed when he/she purchased the building, this person cannot be fined.

As a matter of fact, in the decision of the 14th Chamber of the Council of State dated 27.02.2018 and numbered E:2015/2198, K:2018/952, it was stated that “Before the administration imposes any sanction on the owner, it is necessary to determine who is responsible for the violation, the owners have the right to prove whether they are responsible for the violation, otherwise, a transaction contrary to the principle of individuality of penalties will be established…”.

4. Heirs Heirs cannot be subjected to fines for unlicensed structures that they did not build themselves. This is in line with the principle of individuality of penalties.

As a matter of fact, this issue is clearly emphasized in the decision of the 5th Administrative Case Chamber of the Istanbul Regional Administrative Court dated 03.04.2019 and numbered E:2017/2109, K:2019/1198. In the decision, it was stated that “Administrative sanctions cannot be imposed on the heirs in immovables inherited through inheritance, but in case of detection of illegal construction activities after the transfer of the immovable to the heirs, action can be taken by determining the owner of the building…”.

5. Owner and Tenant Agreements: If the contract between the owner and the tenant clearly states that the tenant cannot make construction and renovation without obtaining a license, it is unlawful to impose a zoning fine on the owner for such unlicensed transactions.

As a matter of fact, in the decision of the 14th Chamber of the Council of State dated 9.05.2018 and numbered E: 2015/3246, K: 2018/4116, “Since it is understood that the person who “violates the license” will be the addressee of the zoning fine and that the person who violates the license is the contractor and tenant, there is no compliance with the law in terms of the principle of “Individuality of Penalties” in the fine imposed on the plaintiff on the grounds that a structure contrary to the license was built on the immovable property he owns.” and emphasized that the owner cannot be imposed a zoning fine due to the actions of the tenant against the zoning.

How is the Zoning Fine Calculated?

The zoning fine is determined in accordance with Article 42 of the Zoning Law No. 3194, and the calculation phase begins after the addressee of the fine is identified. The calculation is carried out in three stages:

• Basic Fine: Firstly, the amount of the basic implicit fine is determined according to subparagraphs (a) or (b) of paragraph 2 of Article 42 of the Zoning Law No. 3194.
• Reasons for Increase: The reasons for the increase listed in the sub-paragraphs in paragraph 2, sub-paragraph (c) shall be applied on the basic zoning fine determined.
• Additional Fine: Finally, the additional zoning fine calculated according to subparagraph (ç) of paragraph 2 is added to the total fine amount.

Any mistake in the process of determining the zoning fine may constitute a strong legal ground for the annulment of the fine. In particular, inaccuracies in calculations or incomplete applications weaken the basis of the administrative action and render the legality of the fine questionable. Incorrect determination of the basic fine, incorrect application of the elements that lead to an increase, or under- or over-calculation of the additional fine may lead to the annulment of the fine by the courts. Therefore, it is of utmost importance that zoning fines are duly regulated and that the calculation and evaluation processes are meticulous.

1. Measurement Error: The construction area of the building must be determined in a complete, clear and detailed manner in the building holiday report. Accurate measurement of the area and preparation of an accurate sketch play a critical role in ensuring the legality of criminal proceedings. Clear and precise data must be obtained during the measurement. Incomplete, inaccurate or incorrect measurements may render the validity of the administrative action questionable and may lead to the annulment of the fine.

As a matter of fact, 14th Council of State In its decision dated 24.09.2018 and numbered E:2015/3035, K:2018/5624, the 14th Council of State ruled as follows: “In the expert report prepared as a result of the discovery and expert examination conducted to resolve the dispute, the total area affected by the contradiction was determined as 1201,2 m², while in the decision of the council subject to the lawsuit, the area affected by the total contradiction was determined as 1.454 m², and considering that the difference in question is of a nature that affects the basic fine, the Administrative Court should decide to cancel the entire fine.” and emphasized that errors in measurement errors will lead to the cancellation of the zoning fine.

• Errors in the calculation of the affected area: Errors in the determination of the affected area are the most important reason for the cancellation of the zoning fine for illegal construction without a license or in violation of the license. The reason for this is that the concept of “affected area” is interpreted very broadly by the municipalities. In court decisions, this concept is interpreted more narrowly.

As a matter of fact, 14th Council of State In its decision dated 27.09.2018 and numbered E:2015/2435, K:2018/5780 “When the building holiday report dated 06.04.2012, which is the basis of the decision of the council subject to the lawsuit, is examined, it is seen that in the said building holiday report, the condition of the building is based on the determination that “the common areas and 3 coal cellars in the basement of the building were converted into dwellings by the plaintiff by making partition walls according to the 1st and 2nd floors”. However, it is understood that the measurements of the contradiction to the license and annexed projects were not determined concretely and in detail, and the current situation of the contradictions in the building was not determined in detail.” and stated the importance of the errors in the calculation of the affected area at the point of cancellation of the zoning fine.

• Errors in Determination of Building Class and Group: In case of an error in determining the building class or group, the entire fine imposed for the illegal building shall be canceled, just as in the case of an error in the affected area. If there is more than one unlicensed structure, the class and group of each structure must be determined separately and fines must be imposed separately for each structure.

As a matter of fact, 14th Council of State, dated 24.09.2018 and E.2015/7878, K:2018/5597 numbered “In this case, although there is no difference in the amount of the area affected by the contradiction from the basic criteria in the calculation of the fine, considering that there are differences in the building class and group of the structures contrary to the license determined by the administration and the expert and that this issue affects the basic fine, the Administrative Court should decide to cancel the entire fine” and emphasized the importance of the errors made in determining the building class and group at the point of cancellation of the zoning fine.

• Errors made in the calculation of the basic fine for the productions that do not constitute a spatial area: For the productions such as garden wall, retaining wall, door, window, which do not constitute a spatial area, the fine should be calculated over the cost price of the structure according to subparagraph (b) of paragraph 2 of Article 42 of Law No. 3194, since it cannot be calculated on a square meter basis.

As a matter of fact, 14th Council of State In its decision dated 19.09.2018 and numbered E:2015/1310, K:2018/5409, “In this case; although the fine for the productions that do not constitute a spatial area should be calculated over the cost price of the structure in accordance with subparagraph (b) of paragraph 2 of Article 42 of the Law No. 3194, there is no compliance with the law in calculating the fine imposed for the garden wall in the dispute that does not constitute a spatial area over the construction area of the structure.” and decided that the calculation of the zoning fine imposed in disputes that do not constitute a spatial area over the construction area of the building is not in accordance with the law.

Where to Appeal a Zoning Fine?

The zoning fines imposed as a result of the detection of unlicensed or unlicensed structures are decided by the municipal council or the special provincial administration council. Therefore, appeals regarding these fines can be made directly to these administrative units. However, an important point to note here is that the appeal process is not mandatory.

The individuals concerned may directly apply for judicial remedy against the fine without first having to exhaust the administrative appeal procedure. In other words, since the objection to administrative bodies is not a prerequisite, individuals have the right to file a lawsuit directly without objection. This offers an important advantage in terms of providing a fast and effective legal protection against administrative sanctions.

Which Court to File a Lawsuit Against a Zoning Fine?

Pursuant to Article 42 of the Zoning Law No. 3194, the competent and authorized court for the lawsuits to be filed for the annulment of the decisions of the council regarding the zoning fines is the Administrative Court in the province where the illegal building is located. If there is no Administrative Court in the province where the building is located, then the case can be heard at the nearest Administrative Court in that province.

What is the Time Limit for Filing a Lawsuit Against a Zoning Fine?

The period for objecting to the zoning fine and filing a lawsuit starts to run from the date of notification of the decision of the municipality or special provincial administration council to the relevant person. After the notification, pursuant to Article 7 of the Administrative Procedure Law No. 2577, the period for filing a lawsuit for the annulment of the fine is 60 days and the lawsuit must be filed before the Administrative Court within this period.

Non-payment of Zoning Fines

In case of non-payment of the zoning fine, the collection phase begins. After the zoning fine is imposed, the relevant person is notified of the decision of the council. If the fine is not paid within the legal period of 30 days from the date of notification, the collection phase is activated. Within the scope of the provisions of the Law on the Procedure for the Collection of Public Receivables, Law No. 6183 is applied.

A payment order is first sent to the person concerned. Upon receipt of the payment order, the person concerned may exercise his/her right to object to this order by applying to the Administrative Court. The person who is notified of the payment order must file the lawsuit within 15 days from the date of notification. After the payment order is served, the person concerned must make the payment or objection within the legal period granted to the person concerned.

If these procedures are not carried out, if the fine is not paid, seizure procedures may be initiated. If the fine is imposed on the person to whom the fine is imposed, seizure of vehicles, bank accounts, title deed records is carried out. If the person concerned is going to file a lawsuit to the Administrative Court regarding the seizure procedures, he/she should take into account the 60-day legal period.

Frequently Asked Questions

Why Us?

As Güneş & Güneş Law Office, we provide comprehensive legal support to our clients in the annulment of zoning fines. Zoning fines are associated with complex administrative processes, and it is of utmost importance to prevent loss of rights in this area and to carry out the process in accordance with the law. Accordingly, we provide expert legal advice and representation in the following areas:

1. Legal Consultancy and Process Management: We analyze the legal basis of fines imposed under the zoning legislation in detail and guide our clients at every stage of the process. We ensure that our clients take the most appropriate legal steps through our examinations.
2. Appeal and Litigation Processes: We manage the appeal processes against illegal or erroneously imposed zoning fines and provide professional support in annulment cases. In these processes, we act effectively and quickly to prevent loss of time and ensure the protection of rights.
3. Legal Evaluation of Fines: We meticulously examine whether the zoning fines are applied to the right person, the errors in the calculation process of the fine amount and its compliance with the legislation. We take the necessary legal actions to protect the rights of our clients against erroneous or unfair fines.
4. Effective Management of Appeal Processes: We effectively manage the appeal processes against municipal or special provincial administration council decisions. We provide legal support to our clients at every stage, from preliminary objection processes to direct litigation.
5. Protection of Rights and Representation: We take all necessary legal measures to ensure that the rights of our clients are not violated within the framework of the Zoning Law and relevant legislation, and we represent them effectively in judicial processes.

As Güneş & Güneş Law Office, we are at your side in the cancellation of zoning fines with our expert staff and client-oriented service approach. We continue to provide professional support to protect your rights and manage this process in the most effective way.