Building Registration Certificate and Zoning Peace

1.WHAT IS BUILDING REGISTRATION CERTIFICATE?
Building Registration Certificate; It is a document given for the registration and use of a building built before 31/12/2017 without a licence or in violation of the licence and its annexes, which does not provide an additional right in terms of zoning and does not create a vested right, and is given to the Ministry of Environment and Urbanisation and the institutions to be authorised by the Ministry of Environment and Urbanisation until 31 October 2018 (This period has been extended until 15/06/2019 with the Presidential decision.) until the building is made in accordance with the zoning status and licence or urban transformation is implemented and the necessary conditions are fulfilled.

The building registration certificate is for the intended use of the building.

2.WHAT IS THE LEGAL BASIS OF THE BUILDING REGISTRATION CERTIFICATE?
The main legal basis of the Building Registration Certificate is the provisional article added to the Zoning Law dated 03/05/1985 and numbered 3194 with Article 16 of the “Law No. 7143 on the Restructuring of Taxes and Other Receivables and Amendments to Certain Laws” published in the Official Gazette dated 18 May 2018 and numbered 30425. Provisional Article 16 is regulated as follows:

“Within the scope of preparation for disaster risks, in order to register the buildings without a licence or contrary to the licence and its annexes within the scope of preparation for disaster risks and to ensure zoning peace, applying to the Ministry of Environment and Urbanisation and the institutions and organisations to be authorised by the Ministry of Environment and Urbanisation for the buildings built before 31/12/2017 until 31/10/2018 (This period lastly expires on 31 December 2018 and numbered 30642 in the 4th Repeated Official Gazette dated 31 December 2018. This period has been extended until 15/06/2019 with the Presidential Decree published in the Official Gazette dated 31 December 2018 and numbered 30642.) A Building Registration Certificate may be issued if the conditions in this article are fulfilled and the registration fee is paid until 31/12/2018 (This period has been extended until 30/06/2019 with the Presidential Decree mentioned above. The ownership status of the building and land subject to the application, the building class and group and other issues are recorded in the Building Registration System prepared by the Ministry according to the declaration of the building owner.”

Apart from this basic law, for the purpose of implementing the law, “Procedures and Principles Regarding the Issuance of Building Registration Certificate” was published in the Official Gazette dated 06.06.2018 and numbered 30443 (Procedures and Principles Amending the Procedures and Principles Regarding the Issuance of Building Registration Certificate were published in the Official Gazette dated 20.09.2018 and numbered 30541) and with the Circular No. 2018/8 published by the General Directorate of Land Registry and Cadastre on 06.07.2018, the change of type and condominium ownership transactions were regulated.

3.WHAT ARE THE BUILDINGS THAT WILL BENEFIT FROM ZONING PEACE?
Before 31 December 2017, all buildings in rural and urban areas built without a licence or in violation of the annexes to the licence are within the scope of Zoning Peace.

The transition to condominium ownership does not constitute an obstacle to the application of Additional Article 1 of the Law on the Transformation of Areas Under Disaster Risk dated 16/5/2012 and numbered 6306.

In the buildings under construction, a Building Registration Certificate is issued for the parts that have been completed as of 31/12/2017, provided that it does not create additional construction area, and the incomplete construction works of the parts for which the Building Registration Certificate is issued can be completed.

Simple repairs and renovations that can be made without obtaining a licence can be made in the buildings for which a Building Registration Certificate is issued.

In the buildings for which a Building Registration Certificate is issued, a licence to open and operate a workplace is issued without seeking a certificate of occupancy.

4.WHAT ARE THE STRUCTURES FOR WHICH A BUILDING REGISTRATION CERTIFICATE CANNOT BE ISSUED?
a) Within the Bosphorus coastline and foresight zone defined in the Bosphorus Law dated 18/11/1983 and numbered 2960, in the area whose borders and coordinates are shown in the sketch and list attached to the said Law in accordance with the Provisional Article 16 of the Law No. 3194,
b) Within the historical peninsula of Istanbul, in the areas whose boundaries and coordinates are shown in the sketch and list attached to the said Law in accordance with the Provisional Article 16 of the Zoning Law No. 3194,
c) In the Historical Area designated in subparagraph (e) of the first paragraph of Article 2 of the Law on the Establishment of Çanakkale Wars Gallipoli Historical Area Presidency dated 19/5/2014 and numbered 6546,
d) On immovables subject to private property belonging to third parties,
e) About the buildings on the 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 to be used for the same purpose,”
Building Registration Certificate cannot be issued.

5.IF A BUILDING REGISTRATION CERTIFICATE IS ISSUED FOR BUILDINGS FOR WHICH A BUILDING REGISTRATION CERTIFICATE CANNOT BE ISSUED, WHAT HAPPENS TO THE STATUS OF THE BUILDING REGISTRATION CERTIFICATE?
In the event that it is detected that this document is issued for buildings for which a Building Registration Certificate cannot be issued, the Building Registration Certificate is cancelled and the rights provided by this document are revoked. (For example, electricity, water, natural subscription, workplace opening and operation license, etc.). The fee paid for the Building Registration Certificate shall not be refunded and a criminal complaint shall be filed against the applicant who makes a false statement during the issuance of the document in accordance with Article 206 of the Turkish Criminal Code dated 26/9/2004 and numbered 5237. (Article 8 of the Procedures and Principles Regarding the Issuance of Building Registration Certificate)

6.HOW LONG IS THE BUILDING REGISTRATION CERTIFICATE VALID?
Validity period of the building registration certificate; The Building Registration Certificate is valid until the reconstruction of the building or urban transformation application. In case of renewal of the buildings for which the Building Registration Certificate is issued, the provisions of the zoning legislation in force are applied. The earthquake resistance of the structure and the non-compliance of the structure with the norms and standards of science and art are the responsibility of the building owner. Procedures and Principles Regarding the Issuance of Building Registration Certificate Article 9)

7.WHAT ARE THE RIGHTS PROVIDED BY THE BUILDING REGISTRATION CERTIFICATE?
a- Demolition decisions and administrative fines issued in accordance with the Zoning Law No. 3194 are cancelled.

In paragraph 4 of the Provisional Article 16 of the Zoning Law No. 3194, which is the legal basis of the Zoning Peace Regulation; It is regulated that the demolition decisions and uncollectible administrative fines taken in accordance with the Zoning Law and the Bosphorus Law No. 2960 regarding the buildings for which the Building Registration Certificate is issued will be cancelled. In other words, within the scope of the Regulations, the demolition decisions issued in accordance with the Zoning Law No. 3194 regarding the buildings for which the Building Registration Certificate is issued will be cancelled. Likewise, administrative fines that cannot be collected will also be cancelled. However, the administrative fines paid will remain valid and the payments made will not be recovered.

b- The buildings that receive a building registration certificate become legal just like the buildings with licence and permit. It is not possible to take demolition and fine decisions in accordance with the Zoning Law No. 3194 issued after the Building Registration Certificate is issued. (Decision of the 5th Administrative Case Chamber of the Istanbul Regional Administrative Court dated 30.04.2019 and numbered YD Objection No: 2019/507)

According to Article 6 of the Building Registration Certificate Communiqué, the building owner must submit the building registration certificate to the municipality or special provincial administration. Pursuant to Provisional Article 16/4 of the Zoning Law No. 3194, “Demolition decisions and uncollectible administrative fines taken pursuant to this Law and Law No. 2960 regarding the buildings for which a Building Registration Certificate is issued shall be cancelled.” and the principle of parallelism in procedure and authority, demolition and fines must be cancelled by the municipality or provincial permanent council. In other words, in the lawsuits filed about demolition and fines imposed before the building registration certificate is obtained, a decision of cancellation cannot be made just on the grounds that the building registration certificate has been obtained. (14th Chamber of the Council of State, decision dated 27.02.2019 and numbered E:2018/279, K:2019/1435)

In the ongoing lawsuits related to demolition and fines, if the demolition and fine are cancelled by the relevant administration upon submission of the building registration certificate to the relevant administration, it shall be decided that there is no need to decide on the lawsuit that is no longer relevant. (14th Chamber of the Council of State, decision dated 24.01.2019 and numbered E:2018/4539, K:2019/507)

Since the building that has received a Building Registration Certificate is deemed to be a building in accordance with the zoning legislation, pursuant to Article 184/5 of the Turkish Penal Code, if there is a criminal investigation opened against the owner of the building for the crime of causing zoning pollution, a decision of non-prosecution shall be made, no public case shall be filed, if there is a public case filed, it shall be dismissed, and the convicted penalty shall be eliminated with all its consequences. (11th Criminal Chamber of the Court of Cassation, decision dated 23.12.2019 and numbered E:2018/5966, K:2019/9877)
However, on the grounds that the Building Registration Certificate has been obtained, it cannot be decided to dismiss the case in terms of the offence of breaking the seal regulated in Article 203 of the Turkish Penal Code. Because, in the jurisprudence of the Court of Cassation; it is accepted that “the defendant’s continuation of the construction despite the sealing procedure reveals the criminal intent and the crime has occurred, and the subsequent obtaining of a licence will not eliminate the criminal intent”. (Decision of the 11th Criminal Chamber of the Court of Cassation dated 16.01.2019 and numbered E:2017/6412, K:2019/548) In line with this case law, it is accepted that a decision of dismissal will be made only in terms of the crime of causing zoning pollution for the building that has become in compliance with the zoning legislation by obtaining a building registration certificate, and a decision of conviction will be made for the crime of breaking the seal if the elements of the crime are formed. (Ankara BAM, 6th Criminal Chamber, decision dated 22.03.2019 and numbered E:2019/1335, K:2019/754)

The Building Registration Certificate gives the right to use the building, such as the Certificate of Occupancy Permit.
e-. Article 30 of the Zoning Law No. 3194 states that it is obligatory to obtain a certificate of occupancy permit in order to use the building, and Article 31 states that the buildings for which occupancy permit is not granted and not obtained will not benefit from electricity, water and sewerage services and facilities until the permit is obtained.

f- Similarly, in the 5th paragraph of the Provisional Article 16 of the Zoning Law No. 3194; it is regulated that condominium ownership can be established in the buildings that receive a Building Registration Certificate without seeking a certificate of occupancy permit.

g-Paragraph 8 of Article 6 of the Communiqué on the Procedures and Principles Regarding the Issuance of Building Registration Certificate; It is regulated that the licence to open and operate a workplace will be issued in the buildings where the Building Registration Certificate is issued without seeking a certificate of occupancy permit.

In the letter numbered E.163242 of the General Directorate of Infrastructure and Urban Transformation Services of the Ministry of Environment and Urbanisation; “While granting the licence to open and operate a workplace, the structures with a building registration certificate should be evaluated without seeking a certificate of occupancy; however, if there are special conditions required in accordance with the relevant legislation while granting the licence to open and operate a workplace other than the certificate of occupancy, these conditions should be fulfilled”.

h-. The building registration certificate makes it possible to change the type of buildings and to establish condominium ownership. However, by introducing a provision such as “the project submitted to the land registry directorate by the architect and by obtaining the signatures of the building owner or all shareholders of the main real estate”, it has stipulated that the immovable will be subject to its own law in this process by requesting a suitable project in the fundamental change of the building.

ı. According to the Provisional Article 21 added to the Zoning Law with the Law dated 14.02.2020 and numbered 7221; it has been made possible to make retrofitting in the buildings for which a building registration certificate has been obtained, provided that no additional construction area is allocated, by taking a retrofitting decision according to the Condominium Law No. 634. Although in the first regulation, the building registration certificate is considered as a “temporary document” and only simple repairs will be allowed and structural interventions will not be allowed, 14.02. According to the Provisional Article 21 added to the Zoning Law No. 3194 by the Law on Geographical Information Systems and Amendments to Certain Laws dated 14.02.2020 and numbered 7221, it has been ruled that retrofitting can be carried out in buildings with a building registration certificate, provided that no additional construction area is created, and that the retrofitting permission in these buildings will be granted based on the retrofitting project without being subject to the conditions and restrictions stipulated in the legislation, and structural interventions other than the additional construction area are allowed. In fact, by referring to the “retrofitting project” here, the rule has been introduced that the retrofitting project of the building with a building registration certificate will be approved.

i-With Article 16 of the Law No. 7143, it has been defined as “Registration of structures without a licence and structures contrary to the licence annexes within the scope of preparation for disaster risks”, and it has been clearly stated that the scope of the law is disaster risks, and it has been stated that only simple repairs and renovations can be made without obtaining a licence in the buildings that are given a building registration certificate, and it has been clearly stated that structural interventions will not be allowed. In addition, with the legal regulation; It is stipulated that the building registration certificate is valid until the building is rebuilt or urban transformation is implemented, and if the building requires substantial repair and repair other than renovation or strengthening, the provisions of the zoning legislation are valid instead of the rights provided by the building registration certificate. In other words, with the building registration certificate, the existing state of the immovable will be preserved and only simple repairs and modifications will be made. The building owner will not be able to make a fundamental modification or repair, and will not be able to make a fundamental intervention to the structure.

In the legal regulation, it is understood that the expression “the provisions of the zoning legislation in force shall apply” in case of renovation of the building implicitly states that special laws are out of scope. As a matter of fact, the Gaziantep Regional Administrative Court cancelled the building registration certificate obtained for buildings in forest areas. Since it is a regulation made in the Provisional Article 16 of the Zoning Law, the provision stating that this law cannot be applied to the special laws exempted by Article 4 of the Zoning Law constituted the basis of the decision.

k-. Slum owners who obtain a Building Registration Certificate are entitled to purchase Treasury and Municipality Lands directly

According to the Provisional Article 16 of the Zoning Law and the Building Registration Certificate Communiqué; in case a Building Registration Certificate is obtained for the structures built on treasury lands, these immovables will be allocated to the Ministry and sold by the Ministry with priority to the owner of the Building Registration Certificate. Structures built on municipal immovables will be sold directly by the municipality.

The noteworthy point in the regulation is that the Ministry and the municipalities have the authority to sell the immovable in case a Building Registration Certificate is obtained for the immovable in question. In other words, the buildings owned by the treasury and municipalities must be opened to private ownership through the zoning peace regulation.

As a matter of fact, in the decision of Istanbul 5th Administrative Court dated 27.12.2019 and numbered E:2019943, K:20192577;

“In the provisional article 16 added to the Zoning Law No. 3194 with the Law No. 7143. In Article 16, it is stipulated that if the conditions of paying the price of the building and the land subject to the building registration certificate and applying until 31/12/2019 are fulfilled, the buildings built on the immovables belonging to the Treasury will be allocated by the Ministry to be allocated, and the buildings built on the immovables belonging to the municipalities will be sold directly to the owners of the buildings for which the building registration certificate is obtained in shares and their legal or contractual successors, if it is not possible to make the division of the area where the building is located by the relevant municipalities.

In this context, if the above-mentioned conditions in the provisional article 16 of the Law No. 3194 are met, the immovable owner administration has the authority to sell directly to the persons who use the building and land subject to the building registration certificate, provided that the structures for which a building registration certificate cannot be issued are kept separate. “, it was decided that as long as the Building Registration Certificate is not cancelled by the Ministry of Environment and Urbanisation, the part of the parcel in question where the plaintiff’s building is located, provided that the cost of the part of the parcel in question is paid, in accordance with the Provisional Article 16 of the Zoning Law No. 3194 and the provisions of the 2nd and 4th subparagraph of Article 7 of the Procedures and Principles Regarding the Issuance of the Building Registration Certificate published in accordance with the aforementioned law, the area where the building is located should be divided, and if the division is not possible, it should be sold in shares.

With the National Real Estate General Communiqué No. 396 published in the Official Gazette dated 26 December 2019 and numbered 30990, the procedures and principles regarding the sale of the immovables belonging to the Treasury, where the buildings with Building Registration Certificate are located, to the owners of the Building Registration Certificate have been determined.

As can be seen, the “Building Registration Certificate” issued for the buildings benefiting from the Zoning Peace makes the building legal as a licensed building in terms of zoning legislation, and provides all the rights provided by a building with a certificate of occupancy.

As a matter of fact, in the decision of the 5th Administrative Case Chamber of the Istanbul Regional Administrative Court dated 30.04.2019 and numbered YD Objection No: 2019/507; “In accordance with the above-mentioned legislative provision, the “building registration certificate” is a document for the purpose of use of the building, and even if it is contrary to the provisions of the Zoning Law and other zoning legislation, the use of such structures is allowed in the presence of certain conditions, in this direction, it is possible to connect electricity, water, natural gas subscriptions to the buildings, and even it is possible to change the type and establish condominium ownership. In this respect, the buildings that have been granted a “building registration certificate” and do not have a building occupancy permit are granted the rights granted to the buildings that have been granted a “building occupancy permit” with the aforementioned document.”

8- WHAT WILL BE THE STATUS OF THE BUILDINGS ON IMMOVABLE PROPERTIES THAT CANNOT BE SOLD, WHICH HAVE BEEN ISSUED A BUILDING REGISTRATION CERTIFICATE?
Pursuant to Provisional Article 16 of the Zoning Law and the Building Registration Certificate Communiqué;

The immovables belonging to the Treasury, except for those that are within the scope of special laws and should be evaluated according to these special laws,
It is regulated that the immovables in the private property of the municipalities will be sold upon the request of the Building Registration Certificate holders and their legal or contractual successors.
The immovables that are “within the scope of special laws and should be evaluated according to these special laws” and therefore cannot be sold are listed in the National Real Estate General Communiqué No. 396 published in the Official Gazette dated 26 December 2019 and numbered 30990.

Although it is possible to impose demolition and fines in accordance with the Zoning Law on unregistered structures located in areas such as forests, pastures, plateaus, roads and green areas under the private ownership or dominion and disposal of the State, demolition and fines cannot be imposed in accordance with the Zoning Law if there is a building registration certificate in accordance with paragraph 4 of the Provisional Article 16 of the Zoning Law No. 3194.

Since there is no provision preventing a demolition decision to be taken in accordance with the Slum Law No. 775 for the buildings located in the areas under the private property or under the rule and disposal of the state and which have obtained a building registration certificate, a demolition decision can be taken in accordance with this Law. However, since no other sanction is stipulated in the Slum Law, administrative fines cannot be imposed in accordance with Law No. 775.

Even if the immovables located on the coast or coastline are under the dominion and disposal of the state, demolition decisions cannot be taken in accordance with the Law No. 775 on Slums due to the explicit provision in Article 14 of the Coastal Law.

An evacuation decision may also be taken in accordance with Article 75 of the State Tender Law No. 2886 for the structures that are under the private ownership or dominion and disposal of the State.

It is also possible to file a lawsuit in the judicial jurisdiction with the request for the prohibition of the intervention to the immovable property under the private property of the State or under the dominion and disposal of the State and the demolition of the structure with a building registration certificate.

As a matter of fact, in a lawsuit filed on the grounds that the immovable property with the characteristics of pasture was interfered with by ploughing, warehouse and WC construction, in the decision dated 23.05.2019 and numbered E:2019/349, K:2019/424 given by the 1st Civil Chamber of the Konya Regional Court of Justice

“Provisional Article 16 of the Zoning Law No. 3194 does not stipulate any conditions other than the request of the right holder and the payment of the fair value for the sale of immovables built on lands belonging to the treasury and for which a building registration certificate has been obtained. However, although it is not included in the Law, the regulation on the implementation of this article stipulates that “the immovable properties belonging to the Treasury, except for those that are within the scope of special laws and those that need to be evaluated according to these special laws” will be transferred to the Ministry of Environment and Urbanisation and can be sold afterwards. While the immovables that should be understood from the expression “immovables that are within the scope of special laws and should be evaluated according to these special laws” in the Regulation are listed in the National Real Estate General Communiqué No. 313 (R.G.: T.29.08.2007, S.26628), it is regulated in subparagraph i of paragraph 1 that the immovables within the scope of the Pasture Law No. 4342 dated 25/2/1998 cannot be sold or transferred.

In this case, it is obvious that the building registration certificate obtained for the structures built on these immovables belonging to the Treasury, whether they are outside the ownership regime or prohibited to be transferred within the framework of special legal regulations, does not allow the transfer of ownership. Due to the existence of legal regulations preventing the construction on these immovables, the building registration certificate will not enable the preservation of possession. If the contrary is accepted, it will be possible to establish possession based on the right with the building registration certificate on the state forests, which are under constitutional guarantee, and immovables in the nature of public property such as pastures, pastures and winter pastures, which are secured by legal regulations.

In the concrete case; considering the principles explained above, since the issuance of the building registration certificate regarding the immovable property subject to the lawsuit in the nature of pasture does not allow the transfer of ownership to the owner, nor does it allow the possession to be preserved, the defendant’s objections to the appeal in this respect should be rejected.”

Controversially, the building registration certificate was not taken into consideration.

As can be seen, very different possibilities arise according to the ownership regime to which the area where the building with a building registration certificate is subject. It is understood that the zoning peace regulation, which has started to be subject to judicial decisions, will cause many different legal problems in the future.

Due to the provision in the 3rd paragraph of the Provisional Article 16 of the Zoning Law stating that “The Building Registration Certificate is for the purpose of use of the building.”, the problem of whether the building, which has been granted the right of use by the Law, can be qualified as an “unauthorised building” in accordance with Article 2 of the Slum Law No. 775 and whether the owner of this building can be qualified as a “fuzuli şagil” in accordance with Article 75 of the State Tender Law No. 2886 will arise.

The violation decision of the Constitutional Court regarding a similar situation is a precedent. In the case subject to the decision of the Constitutional Court; “…the immovable property used with the title deed allocation certificate issued in accordance with the Zoning Amnesty Law No. 2981 was decided to be evacuated due to the declaration of a protected area. The immovable is also one of the immovables designated as forest according to Article 11 of Law No. 6831 and is allocated to the Ministry of Forestry. Upon the rejection and finalisation of the lawsuit filed against this transaction, an individual application was filed. In the decision given by the Constitutional Court, it was decided that; “although the immovable was requested to be evacuated for public interest purposes, the fact that the value of the building was not paid or compensatory proposals were not presented resulted in a violation of the right to property (in terms of the building)…” (Constitutional Court, 2nd Section, Decision dated 10.06.2015 and numbered B.No: 2013/6670.)

9- WHAT IS THE STATUS OF THE BUILDINGS THAT ARE UNDER THE OWNERSHIP OF THE TREASURY OR THE MUNICIPALITY AND THE OWNER OF THE BUILDING REGISTRATION CERTIFICATE IS GRANTED THE RIGHT TO PURCHASE ACCORDING TO THE LEGAL REGULATION?
If the land on which the building registration certificate is obtained is in the ownership of the treasury or municipality, the building registration owner may request the sale of the immovable from the treasury or municipality. As the building registration certificate gives the building owner the right to purchase these immovables, it also prevents the demolition of this structure. In this respect, it can be said that the building registration certificate provides similar rights with the title deed allocation certificate issued under Law No. 2981. This is because the title deed allocation certificate constitutes the basis for the title deed to be given to the right holders after the improvement zoning plan or cadastral plans are made. Likewise, the building registration certificate gives the building owner the right to directly purchase treasury and municipality immovable property.

Therefore, just as it is not possible to take a demolition and fine decision in accordance with the Zoning Law, Slums Law and Law No. 2886 for the building with a title deed allocation certificate, it should be accepted that a demolition and fine decision cannot be taken in the case of a building registration certificate that grants the right to purchase treasury and municipal real estate.

If it is not possible to sell the immovable belonging to the treasury or the municipality, demolition and eviction procedures should be implemented by paying the value of the building or offering compensatory proposals in line with the Constitutional Court decision quoted above.

10- WHAT IS THE STATUS OF THE BUILDING REGISTRATION CERTIFICATE IN THE EVENT THAT THE PLACE THAT SHOULD BE UNDER THE RULE AND SAVING OF THE STATE IS LOCATED IN PRIVATE PROPERTY?
Immovable properties in the nature of coastal, forest and pasture are among the places that should be under the provision and saving of the state and it is not possible for such immovable properties to be subject to private property.

However, there are also immovable properties that are in private ownership despite being of this nature. As long as the title deeds of these immovables are not invalidated by the deed cancellation lawsuit to be filed, demolition and evacuation decisions cannot be taken about the structures on these immovables in accordance with the Law No. 775 on Slums, the State Tender Law No. 2886, and the decision of prohibition of intervention and demolition (demolition) of the structure cannot be made in the judicial jurisdiction.

Although it is possible to impose demolition and fines in accordance with the Zoning Law on unlicensed structures on such immovable properties, pursuant to the 4th paragraph of the Provisional Article 16 of the Zoning Law No. 3194, it prevents the decision of demolition and fine in accordance with Articles 32 and 42 of the Zoning Law.

11- HOW DOES THE BUILDING REGISTRATION CERTIFICATE AFFECT PROPERTY RIGHTS, NEIGHBOURHOOD RIGHTS AND RIGHTS UNDER THE CONDOMINIUM LAW?
Obtaining a building registration certificate within the scope of the zoning peace after the productions contrary to the architectural project are made in the place subject to condominium ownership and the common area is intervened does not eliminate the violation of the Condominium Law. In such a case, the building registration certificate only prevents the municipality or special provincial administration from issuing a demolition and fine decision according to the Zoning Law.

Likewise, it is accepted that the building registration certificates submitted in the lawsuits for the cancellation of the intervention filed based on the property right due to the encroaching structure or the neighbouring right due to the blocking of the view by the structure will not be taken as a basis for the judgment on the grounds that they will not eliminate the rights arising from the neighbouring law and the property right.

12- IS THE BUILDING REGISTRATION CERTIFICATE VALID FOR THE BUILDINGS BUILT ON THE AREAS COVERED BY THE LAW ON TOURISM PROMOTION AND THE LAW ON THE PROTECTION OF CULTURAL AND NATURAL ASSETS, AS WELL AS AREAS COVERED BY SPECIAL LAWS SUCH AS FREE ZONES, ORGANISED INDUSTRIAL ZONES, INDUSTRIAL ZONES, MILITARY PROHIBITION AND SECURITY ZONES, AREAS TO BE PROTECTED?
Article 4 of the Zoning Law No. 3194 titled “Exceptions” states; “Provisions of the Law No. 3194 that are not contrary to the special laws shall be applied in the areas determined or to be determined by the Tourism Encouragement Law No. 2634, the Law No. 2863 on the Protection of Cultural and Natural Assets, the Istanbul Bosphorus Law No. 2960, the Law No. 3030 on the Administration of Metropolitan Municipalities and other special laws, provided that the relevant articles of the Zoning Law No. 3194 are complied with.”

Provisional Article 16, which was added to the Zoning Law No. 3194 by the Law No. 7143, basically introduced regulations for the areas covered by the Law No. 3194. In areas covered by special laws such as the Tourism Incentive Law No. 2634 and the Law No. 2863 on the Protection of Cultural and Natural Assets, the provisions that are not contrary to these special laws can be applied, but the provisions that are contrary to these special laws cannot be applied. In other words, the building registration certificate will not eliminate the contradictions in special laws. Therefore, in addition to the areas covered by the Tourism Incentive Law and the Law on the Protection of Cultural and Natural Assets, buildings built on areas covered by special laws such as Free Zones, Organised Industrial Zones, Industrial Zones, Military Prohibited and Security Zones, Areas to be Protected should not be able to obtain a building registration certificate.

13- ARE THE BUILDING REGISTRATION CERTIFICATES OBTAINED FOR THE STRUCTURES BUILT ON MUNICIPAL IMMOVABLE PROPERTIES VALID FOR THE AREAS UNDER THE SPECIAL PROPERTY OF MUNICIPALITIES?
Paragraph 8 of the provisional Article 16 of the Zoning Law No. 3194 states that a building registration certificate can also be obtained for structures built on “immovable properties of municipalities”. Therefore, the building registration certificates obtained for the buildings built on the immovable properties of the municipalities are valid for the places under the private ownership of the municipalities.

14- DOES THE BUILDING REGISTRATION CERTIFICATE OBTAINED FOR PLACES UNDER THE PRIVATE OWNERSHIP OF MUNICIPALITIES GIVE THE BUILDING OWNER THE RIGHT TO PURCHASE MUNICIPAL LAND?
Within the scope of Zoning Peace, in the event that a Building Registration Certificate is obtained for the structures built on immovables owned by the municipality, regarding the sale of these immovables, in paragraph (8) of the Provisional Article 16 of the Zoning Law No. 3194, it is stated that “In case the structures for which a Building Registration Certificate is obtained are built on immovables owned by municipalities, upon the request of the owners of the Building Registration Certificate and their legal or contractual successors, the immovables are sold directly by the municipalities at the fair value, provided that the price is paid to the relevant municipality.”

On the same subject, in paragraph (4) of Article 7 of the Procedures and Principles Regarding the Issuance of the Building Registration Certificate; “A Building Registration Certificate may be issued to structures built on immovables that are privately owned by municipalities. In such a case, upon the request of the owners of the Building Registration Certificate and their legal or contractual successors, the immovables are sold directly to them by the municipalities at the fair value, provided that the price is paid to the relevant municipality.”

15- IN WHICH PROCEDURE AND HOW WILL THE SALE OF THE IMMOVABLES IN THE MUNICIPAL PROPERTY BE MADE IN THE ZONING PEACE?
Neither the article of the Law nor the legal regulation on the Procedures and Principles Regarding the Issuance of Building Registration Certificate; there is no regulation on the issues such as which of the immovables in the municipality’s ownership where the buildings with Building Registration Certificate are located will be sold, how the value determination will be made, whether it will be possible to sell in instalments, and what the procedures and principles to be followed in the sales process will be.

In Article 7 of the Procedures and Principles Regarding the Issuance of Building Registration Certificate, in relation to the sale of Treasury immovables; “(1) In the event that the structures for which a Building Registration Certificate is obtained are built on immovables belonging to the Treasury, the immovables other than those covered by special laws and those that need to be evaluated according to these special laws shall be allocated to the Ministry. After the allocation process, upon the request of the Building Registration Certificate holders and their legal or contractual successors, these immovables are sold directly by the Ministry at the fair value. The fair value shall be determined by the Ministry or have it determined. In the sales to be made in this way, the sales price may be paid in instalments up to five years, at least ten percent of which shall be paid in advance. Half of the legal interest rate is applied to the instalment amounts until the date of payment.” However, this provision is only related to the sale of Treasury immovables. It cannot be applied to municipal immovables.

For this reason, based on the Building Registration Certificate obtained within the scope of the Provisional Article 16, which immovables in municipal ownership will be sold, the determination of the fair values of the immovables and how the sales process will be carried out, etc. issues should be determined by the relevant Municipality. This is also the opinion of the General Directorate of Infrastructure and Urban Transformation of the Ministry of Environment and Urbanisation.

16-HOW WILL THE SALE PRICE OF THE IMMOVABLES UNDER MUNICIPAL OWNERSHIP BE DETERMINED IN THE ZONING PEACE?
It is possible to determine which immovables in the municipality property will be sold, the determination of the fair values of the immovables and how the sales transaction will be carried out, etc. with a decision to be taken by the municipal council.

17- IS IT OBLIGATORY FOR THE RELEVANT MUNICIPALITY TO MAKE THE SALE IN CASE THE OWNER OF THE BUILDING REGISTRATION CERTIFICATE WANTS TO BUY THE MUNICIPAL IMMOVABLE AS A RESULT OF THE IMMOVABLES IN THE MUNICIPAL PROPERTY BEING SUBJECT TO THE ZONING PEACE?
According to the provisional Article 16 of the Zoning Law No. 3194, “In case the buildings for which a Building Registration Certificate is obtained are built on immovables belonging to the Treasury, these immovables are allocated to the Ministry. Upon the purchase requests of the Building Registration Certificate holders and their legal or contractual successors until 31/12/2019, the immovables are sold directly by the Ministry at the fair value. In this case, the revenues obtained are recorded as income to the general budget according to the second paragraph of this article. In addition, the fifth paragraph of Article 5 of the Law on the Evaluation of Immovable Properties Owned by the Treasury and Amendment of the Value Added Tax Law dated 29/6/2001 and numbered 4706 shall not apply to these revenues, and the provision of the eleventh paragraph shall not apply to structures and facilities.

In the event that the structures for which a Building Registration Certificate is obtained are built on immovable properties belonging to municipalities, upon the request of the owners of the Building Registration Certificate and their legal or contractual successors, the immovable properties are sold directly by the municipalities at the current market price, provided that the price is paid to the relevant municipality.”

As can be seen, according to the legal regulation; the administration is not given discretionary authority in this regard. Therefore, except for the parcels that cannot be sold by law, the sale of the parcels in the municipality’s ownership, for which a building registration certificate has been obtained, is obligatory by law.

18- CAN A BUILDING REGISTRATION CERTIFICATE BE OBTAINED FOR THE BUILDINGS BUILT IN SOCIAL EQUIPMENTS AREAS? IS THE ALREADY OBTAINED BUILDING REGISTRATION CERTIFICATE VALID?

In paragraph 9 of the provisional Article 16 of the Zoning Peace Law; “Structures located on immovable properties subject to the private ownership of third parties and structures located on lands reserved for social reinforcement belonging to the Treasury are not benefited from the provisions of this article.”

The concept of “social reinforcement areas” refers to “social infrastructure areas” or, as defined in the Zoning Law No. 3194, “general (public) service areas”. The authority to determine social reinforcement areas or general (public) service areas is vested in the administrative units that can make zoning plans within the framework of the Zoning Law No. 3194 and other legal regulations.

According to Paragraph 9 of the provisional Article 16 of the Zoning Law No. 3194, no building registration certificate can be obtained for the buildings constructed on the immovable properties that are designated as social reinforcement areas but are owned by the Treasury.

In subparagraph (d) of paragraph 1 of Article 8 of the Communiqué on the Procedures and Principles Regarding the Issuance of Building Registration Certificates, it is stated that; “Building registration certificates cannot be issued for the structures on the 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.”

In paragraph 8 of the provisional Article 16 of the Zoning Law No. 3194, it is stated that a building registration certificate can be obtained for the structures built on “immovable properties of municipalities”, but the restriction that these immovable properties are not allocated for social reinforcement areas is not clearly stated.

In this case, is it possible to obtain a building registration certificate for the buildings built on immovable properties owned by municipalities and allocated for social facilities?

In subparagraph (c) of paragraph 4 of Article 6 of the Communiqué on Procedures and Principles Regarding the Issuance of Building Registration Certificates, it is stated that the areas corresponding to general (public) service areas in the zoning plans must be abandoned in order to change the type and establish condominium ownership with the building registration certificate. Accordingly, on the one hand, it is unlawful for the municipalities to sell the immovable properties that they have transferred to their ownership through the subsequent acquisition of road areas, park areas, etc., which were probably created as general service areas in the past with the deductions of regulation partnership share, while on the other hand, the citizens are required to abandon the parcel sections corresponding to general service (i.e. social reinforcement) areas in the zoning plans. Moreover, in subparagraph (d) of paragraph 1 of Article 8 of the Communiqué on the Procedures and Principles Regarding the Issuance of Building Registration Certificates, it is stated that a building registration certificate cannot be issued for the structures located on immovables designated as social reinforcement areas with finalised plans.

Since it is stated in subparagraph (d) of paragraph 1 of Article 8 of the Communiqué on Procedures and Principles Regarding the Issuance of Building Registration Certificate that a building registration certificate cannot be issued for the structures on immovable properties designated as social reinforcement areas with finalised plans, a building registration certificate cannot be obtained for the structures built by real persons on immovable properties that are their own property and designated as social reinforcement areas.

As a result, a building registration certificate cannot be issued for the buildings on immovable properties designated as “social reinforcement area”, “social infrastructure area” or “general (public) service area” as mentioned in the Zoning Law No. 3194.

However, we are of the opinion that the Building Registration Certificate obtained for the buildings located in social reinforcement areas such as park areas, green areas, roads, etc., which do not belong to the treasury or do not have an allocation decision by the treasury even if they belong to the treasury, will be valid.

CHAPTER 2
Provisional Article 16 of the Zoning Law No. 3194 does not contain any provision stating that buildings located in areas subject to special laws such as protected areas, coasts, forests and pastures cannot benefit from zoning peace.

For this reason, many citizens and companies in Turkey have obtained a large number of building registration certificates for buildings located in areas such as protected areas, coasts, forests and pastures due to the lack of clarity in the law.

1- CAN A BUILDING REGISTRATION CERTIFICATE BE OBTAINED IN AREAS SUBJECT TO SPECIAL LAWS SUCH AS PROTECTED AREAS, COASTAL AREAS AND FORESTS? IS THE BUILDING REGISTRATION CERTIFICATE OBTAINED FOR THE BUILDINGS IN THESE AREAS VALID?
Provisional Article 16 of the Zoning Law No. 3194 does not contain any provision stating that buildings located in areas subject to special laws such as protected areas, coastal areas, forests and pastures cannot benefit from zoning peace.

For this reason, due to the lack of clarity in the law, many citizens and companies in Turkey have obtained a large number of building registration certificates for buildings located in areas such as protected areas, coasts, forests and pastures.

Are the building registration certificates obtained by citizens for buildings located in areas subject to special laws such as protected areas, coasts, forests and pastures valid? Will they have any legal consequences? Or can the building registration certificates stop the execution of the demolition decisions previously taken by the relevant administrations for the buildings located in areas subject to special laws such as protected areas, coasts, forests and pastures?

The legal regulation, which entered into force after the legal regulation and which is known as “Zoning Peace” in the public opinion, has been determined in the provisional Article 16 of the Zoning Law No. 3194, after stating which structures will benefit from the zoning peace, the structures that will not benefit are also determined by counting them in the legal regulation itself. According to the provisional Article 16 of the Zoning Law No. 3194 and the Communiqué on the Procedures and Principles Regarding Building Registration, the structures that will not 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 Historical 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 Historical Area Presidency.”

There is no law, regulation, communiqué or circular stating that the buildings in the areas covered by special laws other than those listed above are not covered by the zoning peace. On the contrary, it is clearly stated in the decisions and administrative procedures that the buildings in the areas covered by special laws can be granted building registration certificates. Namely

In a case brought before the Bursa 3rd Administrative Court, the Court applied to the Constitutional Court for the annulment of the law with the opinion that “…the rule subject to objection in the lawsuit filed with the request for the cancellation of the transaction regarding the rejection of the request for the issuance of a workplace opening and working licence to an immovable cultural property registered as an immovable cultural property requiring protection is contrary to the Constitution”, and applied to the Constitutional Court for the annulment of the law “by claiming that the provisional Article 16 added to the Zoning Law dated 3/5/1985 and numbered 3194 by Article 16 of the Law dated 11/5/2018 and numbered 7143 is contrary to Articles 5, 35, 43 and 63 of the Constitution”. The provisional Article 16 added to the Zoning Law dated 3/5/1985 and numbered 3194 with Article 16 of the Law dated 11/5/2018 and numbered 7143 “on the grounds that it is contrary to Articles 5, 35, 43 and 63 of the Constitution” and the Constitutional Court rejected the application request with its decision dated 04.12.2019 and numbered E:2019/109, K:2019/91. In the aforementioned decision of the Constitutional Court, it was stated that the building registration certificate obtained for a building registered as an immovable cultural property requiring protection within the scope of Law No. 2863 allows the use of the building subject to the lawsuit. In the decision of the Constitutional Court;

“…Although the building registration certificate issued within the scope of the rule allows the use of the structure subject to the lawsuit, considering the above-mentioned qualities of the structure, there is no obstacle to the application of the provisions of Law No. 2863, which regulates the transactions and activities related to the movable and immovable cultural and natural assets that need to be protected, and Law No. 3621, which is regulated for the protection of coasts and coastlines, in the case under consideration. Because there is no explicit provision in the rule that the provisions of the relevant special laws cannot be applied in terms of immovables for which a building registration certificate is issued.

In this respect, since there is no obstacle to the consideration of the aforementioned laws containing special provisions regarding this issue in the dispute regarding the request for a business opening and operation licence, the rule subject to objection cannot be applied in the case under consideration…”

On page 9 of the Circular dated 06.07.2018 and numbered 2018/8 of the General Directorate of Land Registry and Cadastre on “Procedures to be carried out in accordance with the Provisional Article 16 of the Zoning Law No. 3194 (Zoning Peace)”; “… it is possible to obtain a Building Registration Certificate for immovables located in areas subject to special laws (Law No. 6306, Coastal Law, Pasture Law, Soil Conservation Law, Forest Law, Natural Site, Archaeological Site, Urban Site, Military Security Area, etc.)”.

The General Directorate of Infrastructure and Urban Transformation Services of the Ministry of Environment and Urbanisation gave the following answer to the question asked by a public institution due to the contradiction in practice, with the letter dated 11.10.2019 and numbered E.238362 dated 11.10.2019 of the General Directorate of Infrastructure and Urban Transformation Services, which is responsible for carrying out the zoning peace procedures in the Ministry of Environment and Urbanisation:

“…Only demolition decisions taken in accordance with the Law No. 3194 and uncollectible administrative fines will be cancelled regarding the buildings for which a Building Registration Certificate has been obtained. If there is a demolition decision and fine issued in accordance with any law other than the Zoning Law No. 3194, the Building Registration Certificate will not provide the cancellation of such penalties or decisions. In other words, a Building Registration Certificate can be obtained for the structures within the scope of special laws (Coastal, Forest, Pasture, Soil Conservation, Natural Site, Archaeological Site, Urban Site, Military Security Area, etc.), but this document will not result in the cancellation of demolition decisions and administrative fines taken according to the relevant legislation, not according to Law No. 3194.

On the other hand, there is no need to cancel the Building Registration Certificate obtained for the implementation of the demolition decision taken within the scope of the special law, and the Building Registration Certificate will not constitute an obstacle to the implementation of the demolition decisions taken in accordance with special laws…”

The General Directorate of Infrastructure and Urban Transformation of the Ministry of Environment and Urbanisation states that the building registration certificates obtained in these areas are valid and cannot be cancelled.

Therefore, in the light of the factual and legal grounds presented above; since there is no legal regulation stating that building registration certificates will not be issued for buildings located in protected areas, including 1st degree archaeological and natural protected areas, forest, coastal and pasture areas, the building registration certificates obtained for the buildings built in these areas before 31 December 2017 are valid. In this framework, it is possible to benefit from the provision of Provisional Article 16 by obtaining a Building Registration Certificate for the buildings without a licence and in violation of the licence and annexes built before 31/12/2017 in areas subject to Special Laws (Coastal, Forest, Pasture, Soil Conservation and Land Use Law, Natural Site, Archaeological Site, Urban Site, Military Security Area, etc.). For the stated reason, it will not be possible to cancel the Building Registration Certificates that are duly obtained within the framework of the Procedures and Principles Regarding the Issuance of Building Registration Certificates in the said areas.

However, the General Directorate of Spatial Planning, another unit of the Ministry of Environment and Urbanisation, has recently issued an opinion stating that the building registration certificate on the coast should be cancelled. In the opinion of this General Directorate, the following points are emphasised

“As it is known; In paragraphs (9) and (11) of the Provisional Article 16 of the Law No. 3194, the areas and structures that cannot be obtained Building Registration Certificate are listed; It is possible to benefit from the provision of the Provisional Article 16 by obtaining a Building Registration Certificate for the structures built without a licence or in violation of the licence and its annexes before 31/12/2017, except for the areas and structures specified in the mentioned paragraphs.

In the Provisional Article 16 of the Zoning Law No. 3194; “The Building Registration Certificate is for the purpose of use of the building. Water, electricity and natural gas can be temporarily connected to the buildings that receive a Building Registration Certificate, taking into account the subscriber group defined in the relevant legislation upon request…. In buildings that have a building licence but have not received a certificate of occupancy or do not have a building licence, if the Building Registration Certificate and the consent of all owners are obtained and the areas corresponding to public service areas in the zoning plans are abandoned, a change of type and condominium ownership can be established without the need for a certificate of occupancy… Structures located on third parties’ privately owned immovables and structures located on lands allocated for social facilities belonging to the Treasury shall not be benefited from the provisions of this article” and Article 8 of the Procedures and Principles Regarding the Issuance of Building Registration Certificate titled “Structures for which a building registration certificate cannot be issued”. “(d) A Building Registration Certificate cannot be issued for the structures located on the 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. ” and “(2) (Change: RG-20/9/2018-30541) In the event that it is determined that this document is issued for the structures for which the Building Registration Certificate cannot be issued, the Building Registration Certificate shall be cancelled, the rights provided by this document shall be revoked, the amount deposited as the Building Registration Certificate fee shall not be refunded, and a criminal complaint shall be filed against the applicant who made a false statement during the issuance of the document in accordance with Article 206 of the Turkish Penal Code dated 26/9/2004 and numbered 5237.”

In addition; Within the scope of the Provisional Article 16 of the Zoning Law No. 3194, the works and transactions to be carried out in the title deed after obtaining the Building Registration Certificate within the scope of the Provisional Article 16 (5) of the said Provisional Article 16, “In case of the consent of all owners with the Building Registration Certificate and the abandonment of the areas corresponding to the public service areas in the zoning plans, the building use permit Within the framework of the provision that “the change of type and condominium ownership can be established without seeking a certificate”, it is necessary to be carried out in accordance with the provisions of paragraph (4) of Article 6 of the Procedures and Principles Regarding the Issuance of Building Registration Certificate and the provisions of the Circular dated 06/07/2018 and numbered 1787 (2018/8) of the General Directorate of Land Registry and Cadastre, and it should be stated within this framework; If the immovable property on which the Building Registration Certificate is located is within the scope of Special Laws (e.g. Coastal Law), there should not be any provision in these special laws that will prevent the allocation of type and condominium transactions to be made in the land registry deed in order to be able to make transactions in the land registry deed in relation to the buildings for which a Building Registration Certificate is obtained.

On the other hand, when the provisions of the Coastal Law, which is a special law, are examined; Article 5 titled “General Principles” of the Coastal Law No. 3621 states that “…The coasts are under the sovereignty and saving of the State. The coasts are open to the equal and free use of everyone, and public interest is primarily considered in the utilisation of the coasts and coastlines…” and it is clear that the coastal area between the coastal line and the coastal edge line cannot be subject to private ownership.

However; Article 17 of the Regulation on the Implementation of the Coastal Law titled “Planning on the Coastline” states that “Implementation zoning plans including the first part of the coastlines are arranged in such a way that they are allocated to the use of the community as open spaces. In these areas, only pedestrian roads, promenade and recreation areas, viewing terraces and areas, recreactive uses defined in Article 4 of this Regulation and the structures and facilities specified in Article 13 of this Regulation may take place. Within this area, no other structures and facilities, including the structures open to the utilisation of the public, may be built. The plans to be made in the second part of the coastline are arranged to include the structures and facilities listed in Articles 13 and 14 of this Regulation and the day tourism structures and facilities defined in this Regulation, except accommodation, provided that they are open to the benefit of the community.” and in Article 18 titled “Construction on the Coastline” “In order to issue a construction licence on the coastline, in accordance with the provisions of the approved implementation zoning plan, it is necessary to create zoning parcels by taking action in accordance with the Zoning Law No. 3194 and its regulations, and the areas open to the public must be taken into public hands.” Considering the provisions of the legislation explained above;

First of all, the sea, natural and artificial lakes and river coasts within the scope of the Coastal Law No. 3621 cannot be subject to the Building Registration Certificate within the scope of the Provisional Article 16 of the Zoning Law No. 3194, and if these documents have been cancelled, these documents must be cancelled,
The first 50 meters of the coastlines surrounding the shores of the seas and lakes within the scope of the Coastal Law No. 3621 can be arranged as open and green areas to be open to the equal use of everyone, therefore, a building in these areas, which is not open to the public in any way and does not provide recreational arrangements, cannot be subject to the Building Registration Certificate within the scope of the Provisional Article 16 of the Zoning Law No. 3194, and if it has been, these documents should be cancelled,
The second 50 metres of the coastlines surrounding the shores of the seas and lakes within the scope of the Coastal Law No. 3621 can be arranged as open and green areas and daily tourism structures and facilities to be open to the equal use of everyone, therefore, a structure that is not open to the public in any way or does not provide a recreational arrangement or is not a daily tourism structure and facility cannot be subject to the Building Registration Certificate under the Provisional Article 16 of the Zoning Law No. 3194, and if it has been, these documents must be cancelled,
Apart from the items listed above, in accordance with the Coastal Law No. 3621, it is clear that no structure for any purpose other than the uses listed in the relevant legislation in the areas covered by this law in accordance with the Coastal Law No. 3621 cannot be subject to the Building Registration Certificate within the scope of the Provisional Article 16 of the Zoning Law No. 3194, and if it has been cancelled, these documents must be cancelled, in other words, transactions such as “change of type / condominium ownership” cannot be concluded positively in such areas.”
In summary, as stated in the above-mentioned legal regulation and the decision of the Constitutional Court dated 04.12.2019 and numbered E:2019/109, K:2019/91 and the decision of the General Directorate of Infrastructure and Urban Transformation Services of the Ministry of Environment and Urbanisation dated 11.10.2019 and numbered E.238362; the Building Registration Certificate obtained for buildings located in areas subject to special laws such as coastal, forest, pasture, natural site, archaeological site, urban site, historical site is valid. However, this document only provides protection against demolition and administrative fines levied in accordance with the Zoning Law and Bosphorus Law. In other words, even if the Building Registration Certificate is issued, the provisions of special laws such as the Coastal Law No. 3621 and the Law No. 2863 on the Protection of Cultural and Natural Assets can be applied to these buildings.

In addition, the Building Registration Certificate obtained for the structures located in social facilities such as park areas, green areas, roads, etc., which do not belong to the treasury or which are not allocated by the treasury even if they belong to the treasury, is also valid.

2-DOES THE BUILDING REGISTRATION CERTIFICATE ELIMINATE THE VIOLATION OF THE LAW NUMBERED 2863?
T.C Supreme Court of Appeals 12th Criminal Chamber Main: 2019/ 13371 Decision: 2021 / 2143 Decision Date: 02.03.2021 As emphasised in the decision of the 12th Criminal Chamber of the Court of Cassation, it is stated that “… the issuance of a building registration certificate enables the registration of structures without a licence or in violation of the licence and its annexes, however, it will not render the construction and physical interventions carried out without obtaining permission from the regional conservation boards in terms of cultural assets, and from the Provincial Directorates of Environment and Urbanisation in terms of natural assets and natural protected areas…”.

Again in a decision of the Court of Cassation;

“… although the defendant has submitted a building registration certificate regarding the place subject to the crime at the appeal stage; Article 9 of the Law No. 2863 regulates that no construction and physical intervention shall be made in the areas of immovable cultural and natural assets and conservation areas and protected areas and protected areas in violation of the decisions taken by the regional conservation boards within the framework of the principle decisions of the High Council of Conservation, and that the construction and physical intervention without obtaining permission in violation of the aforementioned regulation is sanctioned by Article 65 of the same Law. On the other hand, in the provisional article 16 added to the Zoning Law No. 3194 with Article 16 of the Law No. 7143 dated 11/05/2018. Article 16, which was added to the Zoning Law No. 3194 by Article 16 of the Law No. 7143 dated 11/05/2018, stipulates that a building registration certificate can be issued in order to register the structures without a licence or in violation of the licence and its annexes and to ensure zoning peace, and that the said regulation, which has no manifestation in the Law No. 2863, has no manifestation in Article 65 of the said Law. Article 65 of the aforementioned Law will not affect the elements of the offences of construction and physical intervention defined in Article 65 of the aforementioned Law, because, although the issuance of a building registration certificate ensures the registration of buildings without a licence or in violation of the licence and its annexes, it will not render the construction and physical interventions carried out without obtaining permission from the regional conservation boards in terms of cultural assets, and from the Provincial Directorates of Environment and Urbanisation in terms of natural assets and natural protected areas, in the areas of immovable cultural and natural assets and protected areas that need to be protected, in accordance with the law….”

With this statement, the mere receipt of the building registration certificate will not eliminate the violation of the Law No. 2863. Even if the building registration certificate is obtained in an area protected by the Law No. 2863, the building registration certificate will not make the construction and physical interventions carried out without obtaining permission from the regional conservation boards in terms of cultural assets, from the Provincial Directorates of Environment and Urbanisation in terms of natural assets and natural protected areas.

3- DOES THE BUILDING REGISTRATION CERTIFICATE ELIMINATE THE VIOLATION OF THE COASTAL LAW NUMBERED 3621?
With the decision of the 12th Criminal Chamber of the Court of Cassation E. 2020/2495 K. 2021/1451 T. 11.2.2021, about the decision of the local court about the person who built a pier in violation of the Constitution No. 43 and the Coastal Law No. 3621 and who benefited from the zoning peace about the pier and received a building registration certificate;

“… As it is known, according to Article 43 of the Constitution and Article 5 of the Coastal Law No. 3621, the coasts are under the sovereignty and saving of the State and are open to the equal and free use of everyone. In utilising the coasts of seas, lakes and rivers and the coastlines surrounding the coasts of seas and lakes, the public interest is primarily taken into consideration. According to Article 4, the coastal line In the sea, natural and artificial lakes and rivers, the line formed by the junction of the points where the water touches the land, except in cases of flooding, is the Coastal Edge Line: The natural boundary of sandy, gravelly, rocky, stony, reedy, swampy and similar areas where water movements are created in the land direction after the coastline: The area between the shoreline and the coastal edge line. According to Article 999 of the TMK; immovables that are not subject to private ownership and reserved for public use shall not be registered in the land registry unless the establishment of a real right in rem that requires registration is in question, and if an immovable registered in the land registry becomes an immovable that is not subject to registration, it shall be removed from the land registry.

Although the Court has made a decision of rejection regarding the pier on the grounds that the preliminary permission agreement was signed for the pier subject to the lawsuit according to the letter of the … District Governorship dated 26.01.2015 and the defendant has declared that a building registration certificate has been obtained within the framework of the Zoning Peace Law regarding the area subject to the lawsuit, in the light of the explanations made above, the areas in question, which are not subject to private property and allocated for the benefit of the public, cannot be subject to any agreement and cannot be evaluated within the framework of the Zoning Peace Law.

For this reason, it was not correct to make a decision with incomplete examination, while the Court should make a decision about the scaffolding subject to the lawsuit according to the result to be formed after the subpoena of the preliminary permit agreement, which is the basis for the decision, and the evaluation of whether the said agreement constitutes an exception in the face of the explanations made above…”

The court made a reversal decision on the grounds that the building registration certificate will not eliminate the violation of the coastal law numbered 3621, especially emphasising that the areas in question, which are not subject to private ownership and allocated for the benefit of the public, cannot be subject to any agreement and cannot be evaluated within the framework of the Zoning Peace Law.

4- CAN DEMOLITION AND FINES BE IMPOSED ON BUILDINGS LOCATED IN AREAS SUBJECT TO SPECIAL LAWS SUCH AS PROTECTED AREAS, COASTAL AREAS, FORESTS, ETC. AND WHICH HAVE OBTAINED A BUILDING REGISTRATION CERTIFICATE?
In paragraph 4 of the provisional Article 16 of the Zoning Law No. 3194, which is the legal basis of the Zoning Peace regulation; It is regulated that the demolition decisions and uncollectible administrative fines taken in accordance with the Zoning Law and the Bosphorus Law No. 2960 regarding the buildings for which a Building Registration Certificate has been issued will be cancelled.

The zoning peace regulation allows the use of the building that has been issued a building registration certificate and prevents the demolition and fines imposed pursuant to the Zoning Law and the Bosphorus Law. However, there is no explicit provision stating that the provisions of the relevant special laws cannot be applied to the immovable properties for which a building registration certificate is issued.

Article 4 of the Law No. 3194 titled “Exceptions” stipulates that the provisions of the Zoning Law that are not contrary to the special laws shall be applied in the areas determined or to be determined by special laws.

In the letter of the Ministry of Environment and Urbanisation dated 11.10.2019, it is stated that the Building Registration Certificate will only remove the demolition decisions taken in accordance with the Zoning Law No. 3194, and will not remove the demolition decisions taken within the scope of special laws.

In this context, it is useful to evaluate the special laws with the highest application area separately.

a- Can demolition and fines be imposed due to the Building Registration Certificate obtained for the areas within the scope of the Law No. 2863 on the Protection of Cultural and Natural Assets? Can the demolition and fine imposed be cancelled?

According to Article 16 of the Law No. 2863, although the municipal council or the provincial permanent council has the authority to decide on demolition and fines in accordance with Articles 32 and 42 of the Zoning Law No. 3194 regarding the unlicensed construction in the areas subject to this Law, in the presence of a building registration certificate, in accordance with paragraph 4 of the provisional Article 16 of the Zoning Law, demolition and fine decisions cannot be taken according to the Zoning Law.

In Article 57 of the Law No. 2863 on the Protection of Cultural and Natural Assets; “To take practical decisions regarding immovable cultural and natural assets that need to be protected and protection areas and protected areas” is listed among the duties of the protection boards.

Since the provisional Article 16 of the Law No. 3194 does not prevent the implementation of the provisions of the Law No. 2863, the relevant Regional Board for the Protection of Cultural Assets or the Regional Commission for the Protection of Natural Assets may directly take demolition decisions on unauthorised constructions in registered buildings and buildings located in protected areas.

However, since there is no provision in the Law No. 2863 on the imposition of administrative fines for unauthorised construction, it is not possible to impose administrative fines in accordance with this Law.

b- Can Demolition and Fines be imposed on the Structures within the Scope of Coastal Law No. 3621 and with a Building Registration Certificate? Can the demolition and fine imposed be cancelled?

Article 13 of the Coastal Law No. 3621 stipulates that the control of the applications in the areas within the scope of the Coastal Law shall be carried out by the municipality within the boundaries of the municipality and the adjacent area, and by the governorship outside the municipality, and Article 14 stipulates that the relevant provisions of the Zoning Law No. 3194 shall apply to unlicensed structures and structures contrary to the licence and annexes in the areas covered by the Coastal Law.

Therefore, pursuant to Article 14 of the Coastal Law, it is not possible to take demolition and fine decisions in accordance with the Coastal Law for the buildings on the coast and coastline.

It is also not possible to impose fines according to Articles 32 and 42 of the Zoning Law, to which Article 14 of the Coastal Law refers. This is because the Provisional Article 16, paragraph 4 of the Zoning Law prevents the municipality or special provincial administration from taking demolition and fine decisions in accordance with the Zoning Law for the buildings that have obtained a building registration certificate.

Even if the areas located on the coast or coastline are under the sovereignty and disposal of the state, due to the explicit provision in Article 14 of the Coastal Law, demolition decisions cannot be taken in accordance with the Slum Law No. 775.

The opinion of this General Directorate is as follows

“As it is known, in paragraphs (9) and (11) of the Provisional Article 16 of the Zoning Law No. 3194, the “areas” and “structures” that cannot be obtained a Building Registration Certificate are specified, and it is possible to obtain a Building Registration Certificate for all other areas other than the structures and areas listed in the specified paragraphs, which were built / violations without a licence or in violation of the licence and its annexes before 31/12/2017.

However, as clearly stated in paragraph (4) of the said Provisional Article 16, only demolition decisions and uncollectible administrative fines taken in accordance with the Law No. 3194 and Law No. 2960 regarding the buildings for which a Building Registration Certificate is obtained will be cancelled, and if there is a demolition decision or fine issued in accordance with any other Law other than the aforementioned Laws (for example, Law No. 775 or Pasture Law), the Building Registration Certificate will not provide the cancellation of such fines or decisions. In other words, although it is possible to benefit from the provision of Provisional Article 16 by obtaining a Building Registration Certificate for the structures within the scope of Special Laws (such as Forest Law, Soil Conservation and Land Use Law, Coastal Law, Pasture Law, Law on the Protection of Cultural and Natural Assets), if there is a demolition decision or fine issued by any Court or in accordance with these Special Laws or other Laws other than Laws No. 3194 and 2960, the Building Registration Certificate obtained will not prevent the implementation of these decisions. Again, in this context, it will not be necessary to cancel the Building Registration Certificate in order to implement these decisions.

On the other hand, it should be noted that, if it is stated in the said Special Laws that action will be taken in accordance with the provisions of Law No. 3194 on demolition and imposition of fines, since no action can be taken to issue demolition decisions and fines according to Law No. 3194 on the structures for which a Building Registration Certificate has been obtained, no demolition decision will be taken and no fine will be imposed on the structures for which a Building Registration Certificate has been obtained according to the provisions of the Special Law referring to Law No. 3194 in terms of penal provisions. “Building Registration Certificate and Zoning Peace