Urban transformation, which is quite common today, has led to the development of many regulations and practices in the legal field. Urban transformation law is shaped within the framework of Law No. 6306 on the Transformation of Areas under Disaster Risk and the Implementing Regulation of Law No. 6036.
In the Law, urban transformation is defined as the improvement, liquidation and renovation of the areas under disaster risk and the lands and lands outside these areas where risky buildings are located, in order to create healthy and safe living environments in accordance with the norms and standards of science and art.
The basic concepts of Urban Transformation Law can be listed as risky area, reserve building area, risky building and building owner. In addition, concepts such as condominium ownership, independent section, land share, limited real right, annotated personal right are also important in terms of Urban Transformation Law. In this article, we will discuss the risky building, which is an important issue in terms of Urban Transformation Law.
In the Law, Risky Building is defined as a structure that is inside or outside the risky area and has completed its economic life or is determined based on scientific and technical data to be at risk of collapse or severe damage.
For a building to be identified as a risky building;
– The building is located in a risky area,
– Provided that it is based on scientific and technical data; the structure has completed its economic life,
– Provided that it is based on scientific and technical data; the building is at risk of collapse or severe damage
at least one of these conditions must exist. However, buildings that are still under construction and cannot be inhabited or buildings that cannot be inhabited as a result of heavy damages cannot be subject to risky building determination. Risky building determination can be made for all other buildings.
Risky building determination is made based on scientific and technical data in accordance with the Principles for the Determination of Risky Buildings.
Building owners and their legal representatives may request the determination of a risky building. Building owners are the persons who have ownership rights over the building. In structures subject to condominium ownership, each independent section owner; in structures where shared ownership is in question, each shareholder is the building owner.
In addition to the request of the risky building determination by the building owners, a period of time may be given to the building owners by the Ministry of Environment and Urbanization. If the building owners do not have the risky building determined within this period, the Ministry of Environment and Urbanization or the administration shall have the determination made.
According to the legal regulation; the determination of a risky building in an immovable subject to shared ownership can be requested with the unanimous vote of all shareholders. In terms of immovables subject to condominium ownership, unanimity is required for the determination of the risky building, which is a saving that concerns the entire immovable in accordance with the Condominium Law. However, the practice works differently and even a single independent section owner can make this request.
If the building is not a building subject to a condominium easement or condominium ownership, in this case, if the ownership of the building belongs to a single person, this person will be able to request the determination of the risky building; if more than one person owns the building, then this request must be made unanimously, even if each owner has the title of building owner. However, in practice, this situation has been handled differently and each building owner can make this request.
According to the law, the risky building does not have to have a license in order for the application to be made. In the urban transformation law, all the facilities and tax advantages determined for risky buildings are also valid for slums and illegal buildings. If there is more than one slum on the same parcel, it is sufficient for one of the slum owners to make an application for risky building detection. The point to be considered here is that the structure in the form of a slum should not be abandoned and ruined. Because risky building detection cannot be requested for these structures.
The institutions and organizations that can identify buildings at risk are determined by the regulation. According to this
– Ministry of Environment and Urbanization,
– Administration,
Provided that it is licensed by the Ministry of Environment and Urbanization;
– Public institutions and organizations,
– Universities
– Companies with at least forty percent of their capital owned by public institutions and organizations,
– Non-governmental organizations active in earthquake protection, mitigation of earthquake damages and contributing to the development of earthquake engineering,
– Building inspection organizations and laboratory organizations that have obtained a permit from the Ministry of Environment and Urbanization according to the Law No. 4708 on Building and Inspection,
– Pursuant to Law No. 6235 on the Union of Chambers of Turkish Engineers and Architects, institutions and organizations that have registered their offices with the chambers of civil, geological and geophysical engineers can identify risky buildings.
Even if there is more than one owner; the owner who requests the risky building detection shall bear the costs of risky building detection. However, in accordance with the decisions of the Court of Cassation, in case there is more than one owner, the right to recourse to the other owners in accordance with the provisions of unjust enrichment is reserved. In case this matter is referred to the judicial authorities, the competent court is the Civil Courts of First Instance.
The fact that a building is located in a risky area may lead to the determination of that building as a risky building. For this reason, one of the situations in which a risky building can be determined is that the building is located in a risky area. However, if a building is located in a risky area, it cannot be accepted as another risky building, this issue must be determined.
As a rule, only one risky building determination report can be issued for each building. However; in cases where it is necessary to issue a new report upon objection or court decision, in cases where it is determined that the report has been issued falsely, and in cases where an event has occurred that will affect the risk status of the building without any intentional intervention, a risky building determination report may be issued again for the building.
In the event that the report for determination of building risk is issued in violation of the truth, the report shall not have any legal consequences. In addition, the license of the institution and organization issuing the report falsely shall be revoked. In addition, those who issue the report may be held liable under the Turkish Criminal Code and these persons and the institution may be held liable under the Turkish Code of Obligations.
After the determination of the risky building, this determination is first examined by the Ministry of Environment and Urbanization to ensure that there are no deficiencies. After the report is examined, the Infrastructure and Urban Transformation Directorate or Provincial Directorate of Environment and Urbanization notifies the land registry office within 10 working days at the latest. The land registry office then enters the determination that the building is a risky building in the declarations section of the land registry. If the building is within the scope of the Law on the Protection of Cultural and Natural Assets, the procedure to be followed is the same, but this time the necessary notification is not made to the land registry office, but to the Regional Board for the Protection of Cultural Assets and the decision on the continuation of the process is made by the board.
Buildings with a risky building assessment report are exempt from all title deed fees and any fees to be requested by the Municipality. The reason why the risky building determination is recorded in the land registry is important in terms of these fees and tax exemptions. Therefore; the fact that the building is registered as a risky building in the land registry will not affect the assignment transactions such as sale, mortgage establishment.
After the determination of the risky building is recorded in the land registry, the land registry administration may object to the report within 15 days from the notification of the notification to the right holders. However, the right to object belongs only to the right holder who has the right of ownership over the building. If the report is not objected within 15 days, then the report becomes final.
Objections against the report are examined by seven-member committees established by the Ministry of Environment and Urbanization in accordance with the Regulation. The report is examined by the technical committee and if deemed necessary, the structure is also examined. The technical committee is not bound by the objections made to the report. If a deficiency is detected in the report, the committee sends it to the institution that issued the report. After the deficiencies are eliminated, it comes before the committee again for a final decision. When making its final decision, the committee takes into account the status of the report when it was first issued, not the status at the time of the decision. Even if the building was not a risky building in the first instance but became a risky building at the time of the final decision, the objection is still not accepted. In this case, what needs to be done is to request a new risky building determination due to the emergence of the next situation.
If the objection to the risky building detection report is accepted, the report loses its validity, the necessary notifications are made to the land registry office, the declaration recorded in the land registry is canceled and the risky building detection cannot be made again unless a new situation arises. If the objection is rejected, the report becomes final and the urban transformation process continues to operate and the next stage, demolition, is initiated.
If the objection is rejected, a lawsuit can be filed for the annulment of the risky building determination at the administrative court within 30 days from the notification of the decision that the report is finalized. However, since the filing of the lawsuit will not stop the execution of the decision, the demolition phase will be started after the time and procedures stipulated by the law. For this reason, it will be useful to file the lawsuit with a “request for stay of execution”. A decision on this request will be made by the Administrative Court after examining the evidence. In addition, in a decision rendered by the Court of Cassation; it has been ruled that after the determination of the risky building, a determination lawsuit can be filed to determine whether the building is a risky building or not and that this lawsuit is not in the nature of evidence determination.
