Urban Transformation In The Light
Of Law No. 6306 On TheTransformation Of The Areas Under Disaster Risk
Atty. Ecem Akyıldız
The Law Number 6306 on the Transformation of the Areas Under Disaster Risk, published in the Official Gazette on 31.05.2012 within the scope of the capacities of the Ministry of Environment, regulates the procedures and principles regarding the improvement, demolition and reconstruction in the areas under risk of disaster, or buildings at risk apart from these areas, to create healthy and safe living environments.
DEFINITIONS REGARDING DETERMINATION OF DISASTER RISK
1. Areas at risk
Area at risk as defined in Article 2 of Law No. 6306 is an area that may cause loss of life and property due to the ground structure or the construction on it, and which is determined by the Council of Ministers upon the proposal of the Ministry and after the opinion of the Directorate of Disaster and Emergency Management is considered by the Ministry and the Administration. In brief, in determining whether an area is an area at risk, the risk of loss of life and property will be the determinants and in order to determine an area as an area at risk, it is necessary to find the risk of loss of life and property together.
2. Buildings at risk
A building at risk as defined in the same article of the law refers to a building determined to be located whether within or outside an area at risk, that is not economical beneficial any more, or has the risk of collapsing or being heavily damaged, on the basis of scientific and technical evidence.
3. Reserved construction area
Another important concept defined in Article 2 of Law No. 6306 is the , that refers to the areas designated by the Ministry, upon the demand of TOKI or the Administration, and considering the opinion of the Ministry of Finance, ex officio, to be used as a new settlement area for the works to be carried out in accordance with this Law. To summarize, the lawmaker foresees the identification of alternative areas of settlement in order to meet the needs of the new settlement area during the transformation of the areas under disaster risk. The fact that the urban areas will be transformed by being designated as an area at risk, requires the availability of a new settlement area, at least during the transformation period, for the people living in that area.
Determining buildings at risk
The risk assessment means the determination of whether an area or a building poses risks in terms of life and property safety, on the basis of scientific and technological data. Risk assessments and risk analysis of a structure is subject to different procedures.
According to the regulation set forth in Article 3 of Law No. 6306, the risk assessments shall be carried out by the authorized institutions, on demand by the owners or their representatives at their own cost.
However, the Ministry may also be demand a risk assessment. Unless the owners carry out the risk assessment within the period granted by the Ministry, the assessments shall be carried out by the Ministry or the Administration. Costs incurred by the Administration or by the Ministry in such cases, are collected by establishing a mortgage on the land title deed.
Whether an urban area is at risk or not shall be determined by the Ministry. The lawmaker does not have a detailed regulation on how to determine an area at risk, and an area at risk as defined in the Law, has been declared in accordance with the determinations made by the Ministry or the relevant administration, with the decision taken upon the proposal made by the Ministries to the Council of Ministers, and considering the opinion of the Directorate of Disaster and Emergency. Details on determination of whether an area is an area at risk or not, is regulated by the Regulation on the Implementation of the Law on the Transformation of the Areas Under Disaster Risk. The arrangements in the regulation set out the details of the technical examinations for determining whether an area is an area at risk, specify the minimum size of such areas, define the administrative process for making the request and the decision.
Evacuations and Demolitions
After the risk assessment, situations risky in terms of life and property safety must be eliminated as soon as possible. For the elimination of risky situations, the priority is on the evacuation and demolitions of buildings. It is essential to mutually agree with the owners for evacuation and demolition procedures. As per the provisions of the paragraph 3 of Article No. 5 of Law No. 6306, it is demanded from the owners to evacuate the relevant building within a period not less than 60 days before the demolition, and to demolish the building. Unless the building is demolished by the owner during such period, a notification that grants an extension period and declares that the building will be demolished by the administrative authorities shall be served. Unless the building is demolished within this period, either, by the owners, evacuation of people and their belongings from, and demolition of such buildings shall be carried out by civilian authorities with the affiliation of the local administrations, and the demolition costs and other benefits and credits required shall initially be compensated through special fund for transformation projects. With respect to the buildings at risk that are not evacuated or demolished by the owners or the administration in spite of the notices served in accordance with paragraph 4 of the same Article, the Ministry shall notify the relevant Administration in writing to demolish such buildings. The structures which are determined not to be demolished shall be demolished by the Ministry. As necessary, the Ministry itself may carry out determination, evacuation and demolition.
Post-evacuation and post-demolition periods are regulated in Article 6 of Law No. 6306. The lawmakers intend to clarify the process in details. Accordingly;
- As an initial step, title deeds of the buildings to be demolished due to risk are transformed into title deeds for land. The land is allocated in the name of owners proportional to their shares.
- In the title deed registration, the classification, land layout and similar matters are carried out by Ministry, TOKI, or the Administration, ex officio.
- After the demolition, the owner are notified and required to make a decision within thirty days. If the two-thirds of the owners make decision within thirty days, the decision is taken into account. The shares of non-participating owners shall be sold in auction manner to other owners within the participating 2/3 majority, for a not less than the market value determined by the Ministry. If these shares are not acquired by such owners, they shall be registered in the name of the treasury, on the demand of the Ministry, at the market value. If 2/3 majority of the owners fail to make a decision in, the Ministry, TOKI or the administration may seek a settlement through paying 1/5 of the expropriation in advance, and the rest to be paid in 5 equal instalments within 5 years, and may choose to expropriate urgently.
- The plans and projects required may be prepared by the Ministry.
Multiple Buildings on the Same Parcel
Pursuant to paragraph 7 of the Article 15 of the Regulation on Implementation, in the cases where there are multiple buildings on the same parcel, and all such buildings are determined to be building at risk, then it is necessary to consider such buildings together, and the implementation should be determined by the 2/3 of the owners, at the rates of their shares. In the cases where there are multiple buildings on the same parcel and some of such buildings are determined to be buildings at risk, the land registry office specifies not all the buildings but only the buildings at risk as “building at risk”.
Mortgage on the Immovable
As per the first paragraph of Article 6 of Law No. 6306, any rights in rem and personam, or any kind of annotations that restricts or prohibits the right to transfer regarding the buildings at risk, shall remain effective for the shares, even after such buildings are demolished. Therefore, mortgaged immovables shall be considered within the scope of this article and that the building at risk is mortgaged shall not pose an obstacle for the demolition.
Allocating Domiciles and Workplaces for the Tenants and Those Who Have Limited Rights in Rem
According to Article 14 of the Regulation on Implementation, in the cases where there are domiciles and workplaces remaining after those domiciles and workplaces allotted for the owners of the immovable by the builder, an agreement may be concluded for the allotment of domiciles and workplaces with those who had been in such buildings for at least one year, for residence or for work, whether as tenants or holders of limited rights in rem, and those whose property is expropriated pursuant to the Law No. 6306. If the number of the tenants or holders of limited rights in rem, or those immovable of whom is expropriated, exceeds the number of remaining domiciles and workplaces, those who will be allotted with domiciles or workplaces shall be determined with a lottery before a notary.
As per the first paragraph of Article 7 of the Regulation on Implementation, buildings that are under construction, buildings that are uninhabited, or that lost its integrity as it is partially damaged, are not the matters risk assessment.
According to Article 16 of the Regulation on Implementation, the owners of the buildings to be evacuated may be granted monthly rental allowance to be decided by the Ministry, as of the date of evacuation. The condition of being able to benefit from the allowances in the law is that the building at risk is evacuated by mutual agreement. Apart from this, the rest of the Articles is as follows: “(1) ... The rent allowance may not exceed 600 Turkish Liras per month. The period of such benefits is 18 months for the buildings at risk outside the areas at risk and 5 months for the buildings that are expropriated through agreement. In the areas at risk, the period of such allowance is determined by the relevant authority and may not exceed 36 months. Monthly rent is updated every year pursuant to the annual rate of change declared in the Consumer Price Index published by Turkish Statistical Institute. Owners, tenants and holders of limited rights in rem may be granted rental allowances for all the buildings they have or have used under the Law. For the buildings under construction, which are inhabited, only the owners, tenants and holders of limited rights in rem, who reside in such buildings may be granted rental and interest allowance. If possible, for the owners of the structures evacuated pursuant to an agreement, a temporary domicile or workplace may be allocated as of the date of evacuation to the date of delivery of domiciles and workplaces, instead of granting rental allowances. (2) The total amount rent allowance for five months may be paid at once considering the relocation costs. In such cases, the allowance period is calculated from the first day of payment at once. (3) In the structures mentioned in the first paragraph, tenants of domiciles and workplaces may be entitled to a rental allowance two times the monthly rent, and those who reside as holders of limited rights in rem in domiciles or workplaces may be entitled to a rental allowance five times the monthly rent. (4) Applications for rental allowance, shall be made to the relevant authorities for the areas at risk and for the reserved areas, on the basis of the information and documents demanded by the Ministry, to the Directorate, for the buildings at risk outside the areas at risk.”
Right to Litigation
All parties who claim that they suffer unjust treatment with respect to all the transactions to be made as per, and as a result of the Law No. 6306, may file an annulment action to the administrative judiciary within 30 days from the date of the receipt of any notifications regarding such transactions. So that no irreversible results emerge during the case, it is requested that the Administrative Court decide to suspension of the execution.
Limited one time only, an appeal against the decision on suspension of execution may be filed to the Regional Administrative Court within 7 days after notification of such decision. If there are objections to the decision of the administrative court, then such objections may be filed to Regional Administrative Court within 30 days from the date of notification of such decision. In the cases of objection to the decision of the Regional Administrative Court, an appeal may be filed to the Council of State, within 30 days of the notification of such decision.
In addition to this, there are also land share correction cases during urban transformation. As to 2/3 majority, as the proportion of shares shall be considered, and as the immovable, which is transformed into land, shall be allotted in consideration of the proportion of the shares, it is important for the owners to correct the shares. For this reason, a party claiming that construction servitude is established disproportional to the independent section of the land share, while the construction servitude or property ownership is established, may file claim. In the cases of correction of the land share, the expert shall redetermine land shares considering the value, classification, location, side, height, view, etc. of the flat, on the date when the land shares were allotted.
Article “Kentsel Dönüşüm” by Taner Alpaslan & Gökhan Kanal, and
communique “Kentsel Dönüşüm Mevzuatının Hukuksal Değerlendirmesi” by Prof. Dr. Nusret İlker Çolak are cited.