When does a change in road level create a legal problem?
Resurfacing asphalt, raising a sidewalk, rearranging an intersection or changing a stormwater line can affect the height relationship between the road and the building. Typical examples of these disputes are a shop that was previously at road level being left below it, surface water being directed into a garden and a garage ramp becoming unusable. However, a level change does not in itself mean unlawfulness or a right to compensation. The necessity of the project, the conformity of the implementation with the project and its effect on the immovable are examined together.
In the review, it is important that the height of the old road and the height of the new road are measured from the same reference point. A statement such as “it never flooded before” alone may be starting data; it does not replace a technical examination. The site plan attached to the permit, the road profile, the level record, the sewer connection and the stormwater project help establish the cause of the event.
How is the municipality’s liability assessed?
Article 125 of the Constitution regulates the administration’s obligation to compensate damage arising from its own acts and actions. Poor operation of the road service, failure to install necessary drainage or lack of maintenance may be a basis for service fault. The division of duties in Laws No. 5393 and No. 5216 matters for determining which municipality is competent over the road. However, that the road is within municipal boundaries does not by itself lead to the conclusion that that municipality is responsible.
Fault in design, implementation and maintenance
If the project collects stormwater in front of the building, design is in question; if the drain grate was built in a position different from the project, implementation; if an existing channel was left blocked, a maintenance problem arises. More than one cause may exist in the same event. The duties and acts of the metropolitan municipality, the district municipality, the water and sewerage administration or the General Directorate of Highways (Karayolları Genel Müdürlüğü) must be determined separately. That a contractor performed the work does not automatically remove the administration’s liability arising from the public service; private-law claims against the contractor are assessed separately.
Heavy rainfall and the building’s own deficiencies
The intensity of the rainfall, the foreseeability of the flood, the capacity of the project and the measures that could have been taken are investigated. Not every heavy rainfall is treated as force majeure (mücbir sebep). On the other hand, basement use contrary to the permit, a faulty connection or insufficient protective measures can affect causation and the sharing of loss. These facts should be addressed with a concrete technical report, not as an automatic ground for dismissal. If a claim of no-fault liability is to be asserted, it must also be explained why a special and extraordinary burden remains on the plaintiff.
Is an annulment action or a full remedy action filed?
If there is a final and enforceable road project decision, a level-setting act or a refusal of a request for protective measures, annulment of the act may come into question. The existence of the act, its competent authority, the date of learning or notification and the plaintiff’s interest are determined. An annulment judgment does not by itself provide the compensation sought. To obtain redress for the damage, an appropriate full remedy claim must also be framed.
For damage arising from actual implementation, the prior application under Article 13 of İYUK is important. Damage arising from an administrative act is examined under Article 12. Since a project decision and an implementation error may both be present in the same file, the petition must show clearly which claim rests on which fact. Where there is an actual seizure of the immovable or the immovable is taken into the body of the road, the jurisdictional rules for de facto expropriation (kamulaştırmasız el atma) are addressed separately.
How are the application and litigation time limits tracked?
For damage from actions under Article 13 of İYUK, an application must be made to the relevant administration within one year from learning of the action and in any case within five years from the date of the action. The date of learning is assessed according to the particular file, in terms of when the damage and the administrative connection emerged. It should not be assumed that the time limits renew themselves because of late-emerging damage or continuing works.
An action is filed within the general litigation period from the notification of the refusal of the application or, if no answer was given within thirty days, from the end of that period. In administrative courts, the general period is sixty days unless there is a special rule. A timely application under Article 11 of İYUK against an administrative act can stop a litigation period that has begun to run; it is not accepted that a new full sixty days arises after the refusal. The time elapsed before the application is also counted.
A CİMER record, a telephone call or a petition requesting only repair does not in every case take the place of a prior application for compensation. In the application, the event, the responsible service, the items of damage, the payment requested and the supporting documents should be clear. Notifications, the application receipt and electronic delivery records should be kept together.
What damages can be claimed?
Building repair, damage to electrical and mechanical installations, spoiled goods or commercial stock, mandatory evacuation costs and loss of use can be claimed with concrete evidence. In business loss, sales revenue and net earnings are not the same. Expenses saved, seasonal variation, insurance payments and losses arising from other causes must be separated. If there is a permanent loss in the value of the immovable, care is taken not to claim twice the same item as damage already remedied by repair.
For example, renewing flooring and drying walls after flooding may be separate costs; however, stating both the full cost of the renewed flooring and a loss of value based on the same deterioration may create duplication. The type and starting date of interest are explained separately, taking into account the application and the nature of the claim. Non-pecuniary compensation also does not arise automatically merely because pecuniary damage has occurred.
How are the evidence and the expert examination prepared?
Before the damage is repaired, dated photographs and videos, water-level marks, inventories of goods, service reports and invoices should be obtained. Urgent safety and evacuation measures should not be delayed, and the changed situation should be recorded as far as possible. Similar damage on neighboring immovables can be supportive; the level and drainage connection of each parcel are examined separately.
In the technical examination, the old and new road profiles, rainfall data, drain-grate positions, network capacity and the building entrance level are compared. The authority to which an application for preservation of evidence is made is determined according to the nature of the main dispute and whether an action has been filed; in administrative cases already pending, Article 58 of İYUK is taken into account. An application for preservation of evidence does not by itself stop the time limits of the main action.
A real Council of State decision: a rising road and a misplaced drain grate
The decision of the 8th Chamber of the Council of State (Danıştay 8. Daire) dated September 9, 2021, E.2017/539, K.2021/3745 concerns the flooding of an antiques and art gallery in Elazığ. The expert examination found that, as a result of the road and sidewalk works, the immovable was left about 25 cm lower, that the drain grate was in a position different from the project and that the drainage arrangement was inadequate.
The Chamber upheld, with an explanatory note, the partial acceptance decision concerning the liability of the municipality and the special provincial administration. The significance of the decision is that it rests not only on flooding but on technical findings on the level and the drainage arrangement. The result in this file cannot be applied to every level change; it is also seen that the other administration’s claim in objection to the report was subjected to concrete assessment. The text of the decision can be reached through the link in the sources; database login may be required.
What can be requested for a continuing danger?
If there is a risk of repeated flooding, temporary drainage, cleaning, protective arrangements and implementation in accordance with the project can be requested from the municipality. In an action brought against a final administrative act, a stay of execution depends on showing manifest unlawfulness together with damage that is difficult or impossible to remedy. Filing an action does not automatically stop the implementation. The court cannot be expected to prepare a new engineering project in place of the administration; the claim in the action must be framed within the limits of judicial review.
Conclusion
In road-level damage cases, the strongest file combines the claim that “the road rose” with old and new measurements, drainage data and documented damage. Identifying the right administration, distinguishing act from action and setting up the application timetable at the outset are as important as the technical evidence. The goals of repair and compensation can complement each other; each must be pursued by the appropriate legal route.
Frequently Asked Questions
My home was left below road level; is compensation certain?
No. The damage, the connection with the public service and the conditions of liability must be shown. A difference in height alone is not sufficient.
Does the municipality escape liability by saying the contractor did the work?
This explanation alone is not sufficient. The conduct and supervision of the public service, the link between the act and the damage and the duty of the relevant administration are investigated.
How do I preserve evidence when I need to replace belongings right away?
Without delaying safety, keep photographs, service reports, the damage list and invoices. Consider the appropriate route for preservation of evidence without losing time.
If the same flood recurs, does the time limit start again?
A new event, continuing damage and the earlier event are distinguished from one another. The assumption that every recurrence starts a new period for all earlier damage is not safe.
Sources
1. Constitution of the Republic of Türkiye (Türkiye Cumhuriyeti Anayasası), Art. 125.
3. Municipality Law No. 5393 (5393 sayılı Belediye Kanunu) and Metropolitan Municipality Law No. 5216 (5216 sayılı Büyükşehir Belediyesi Kanunu).