Latest Developments on the Urban Regeneration Law
The Law on the Regeneration of Areas under Disaster Risk numbered 6306(the “Law”), or commonly known as the Urban Regeneration Law, authorizes the public authorities to transform the high-risk areas and buildings. However, this Law has a number of extraordinary provisions, which aim to speed up the procedures for regeneration. For instance, Administrative Courts could not make injunction decisions concerning the administrative actions issued under the Law, or zoning plans made under the Law are not subject to limitations stated under the Construction Law or any other regulation.
The Urban Regeneration Law has the objective of “determining the principles and methods of improvement, liquidation and renewal geared towards the constitution of healthy and safe living spaces in line with scientific and esthetic norms and standards in areas under disaster risk and in any high risk development”. The law defines “high risk areas” which could engender loss of lives and property, and similarly “risky buildings” inside or outside the abovementioned areas, as “reserve development areas” where new residential buildings will be constructed. The law outlines the methods for the identification of such high-risk areas and structures, evacuation and demolition processes, and development of projects after demolition. The law also lists the duties and responsibilities of public agencies. This abovementioned law aims to collapse and re-construct the old and damaged buildings and provide citizens’ life security in case of a significant earthquake. The secondary aim is to provide a modern look and more comfortable life to the urban life.
Lately, the Constitutional Court in Turkey has rendered its decision upon the request of the main opposition party (“CHP”) for the annulment of several articles in the Law. The Constitutional Court has partially accepted the annulment request and cancelled a number of provisions. This decision can be categorized in three categories depending on the effectiveness of the annulment decision.
Stages until the Demolition
Determination of Risky Structures
Determination of risky structures is primarily carried out by their owners through applying a licensed institution, provided that they cover expenses. Even only one of the independent unit owner in an apartment may apply to the licensed institution to make a licensed institution carry out an examination on their building.
The Ministry of Environment and Urban Planning (“Ministry”) may also request from the municipalities to execute such determinations. Owners reserve the right to object against such determinations, to the directorate where the structure is located, in 15 days following the date of the determination. Article 3 of the Law numbered 6306 only states “owners” and does not mention about lessee’s right to object such determinations.
These objections are finally settled by a technical expert group consisting of four academicians and three officers from the Ministry.
Determination of the Value of the Real Estate
The value of the real estate is determined by an expert upon gathering information from local real estate agencies and related institutions.
Evacuation and Demolition
In the event the concerned building is determined as a risky structure; prior to evacuation and demolition, a period minimum of 60 days shall be given to owners. In the event that the structure is not demolished by the owners, an extra period shall also be given. In case the second written warning is ignored, authorities may initiate demolition procedure. If the public authorities carry out the demolition procedure, the Land Registry Office puts a collective pledge on the shares of the real estate owners to make them responsible rom the demolition expenses.
In case the Ministry requests; Municipality or Housing Development Administration (TOKI) are authorized to cut off the electricity, water and natural gas services of the risky buildings to force the building owners to the evacuation and demolition.
In accordance with the Law numbered 6306, demolished real estate that has been turned into land is registered in Land Registry in proportion to the shares of the owners. Owners who hold at least 2/3 of the real estate’s total shares shall decide on the procedures to be carried out on the real estate after the demolishment. For example; 7 owners out of 10 will be sufficient. The land shares of the disagreeing owners may be sold to other owners by way of auction provided that the Ministry determines current value of the land.
Owners of the structure can apply to the administrative court, within 30 days following the determination, evacuation, demolition and etc.
Please note that it is only owners who can file lawsuits against administrative decisions concerning the Urban Transformation Law; lessees are not allowed to file such lawsuits.
Post – Demolition
Condominium rights and easement rights are automatically removed from the title deed registry after the real estate demolished and acquires “land” status. Agreement terms, which are made between the owners, are registered onto the title deed registry and the land is registered in name of the owners of the demolished structure.
As explained above owners who hold at least 2/3 of the real estate’s total shares shall decide on the procedures to be carried out on the real estate after the demolishment. The land shares of the disagreeing owners may be sold to other owners by way of auction provided that the Ministry determines current value of the land.
Effective as of the Decision Date
Among the annulled provisions, the Constitutional Court has decided to suspend the execution of second sentence of article 6/9, article 9/2 and first paragraph of article 9/1. Therefore, implication of these provisions shall immediately cease on the decisions date without waiting for the decision to be published on the Official Gazette. It should be noted that although the decision is given on 27.02.2014, the Constitutional Court has to prepare its detailed judgment before publishing the decision on the Official Gazette.
Although the Constitutional Court decisions are only applicable as of the date when the detailed decision if published on the Official Gazette, the Constitutional Court has decided to issue an injunction decision until the publication to avoid any irreparable damages. Following the declaration on the Official Gazette, these provisions will be completely cancelled.
These annulled decisions used to state that i) Administrative Courts could not issue injunction decisions concerning the administrative actions depending on the Law and ii) zoning plans made under the Law are not subject to limitations stated under the Construction Law or any other regulation.
As the above-mentioned provisions are annulled, as of 27.02.2014 it is possible for the Administrative Courts to issue injunction decisions. For instance; risky building decisions and demolishment decisions are subject to injunctive relief in the event the administrative actions are clearly illegal and they may create irreparable damages.
Secondly, the Law’s superior nature against any law concerning zoning plans is not applicable any more since the article 9/2 and first paragraph of article 9/1 are annulled.
Effective as of the Publication on the Official Gazette
First sentence of article 3/4, article 3/7, article 6/10 and article 8/1 are annulled by the Constitutional Court and this annulment decision will be effective as of the date detailed decision is published on the Official Gazette.
As a result of the annulment of the mentioned provisions, the most significant changes are as follows; i) it is no longer possible to implement the Law on the other buildings, which are not located within the risky area, for the purposes of application integrity ii) the easiness for notifications is abolished and therefore notifications will be made in accordance with the Notification Law.
Effective After Three Months Following the Publication on the Official Gazette
Seventh and eight sentences of article 3/1, article 4/1 and first and second sentences of article 5/5 are annulled and these annulment decisions will be effective 3 (three) months after the detailed decision of the Constitutional Court is published on the Official Gazette.
The abovementioned provisions are related to i) joint liability of the building’s shareholders from the expenses made by the public authorities. The concerned authority informs the related title deed office and the title deed office registers a joint mortgage on the building ii) Municipality’s or Housing Development Administration (“TOKI”) ‘s authority to suspend any kind of zoning and housing procedure.
As a result of the Constitutional Court decision there will not be any automatic joint liability of the building shareholders through the notification of the public authorities and the suspension right of the concerned municipalities and TOKI will not be applicable.
The detailed decision of the Constitutional Court has not been announced and published on the Official Gazette; therefore it not possible to make any further comments on the reasons of the annulments yet.
However, it is clear that the annulled provisions (e.g. no injunction relief) had significant importance for the rapid implementation of the Law. Therefore it is definite that the urban regeneration will become slower. It is also possible to state that after the Constitutional Court’s review and decision on the controversial articles; the authorities should not hesitate to implement the provisions of the Law.