Losses arising from a municipality's unlawful demolition may, if the conditions are met, be claimed in the administrative courts through a full remedy action. However, annulment of the demolition decision does not by itself secure payment of the building value and all the losses alleged. The legal status of the structure, the manner in which the demolition was carried out, the loss items and the causal link between the municipality's act and the loss are assessed separately. The time limit for the action is determined according to whether the loss arises from an administrative act (işlem) or from an administrative action (eylem).
Under what conditions is a municipality liable for demolition losses?
Article 125 of the Constitution regulates the administration's obligation to pay for losses arising from its own actions and acts. In demolition disputes, the demolition of the wrong structure, exceeding the scope of the decision, carrying out an act that should not have been carried out, or failing to show the necessary care in protecting belongings may be subject to a liability review. In each case, the administration that made the act, carried it out and engaged in the conduct that caused the loss must be identified.
That a structure is unlicensed does not mean the demolition may be carried out by any method. Conversely, it cannot be said that the full market value of an unlicensed structure, or one without a protectable legal basis, would be paid. A claim for building value and claims put forward for movable property or a neighboring structure damaged during the demolition are not subject to the same assessment.
The unlawfulness of the decision and an error in implementation are different
A demolition decision may be defective as to competence, ground or procedure. In addition, unnecessary and preventable damage may arise during the implementation of a lawful decision. For example, where the main structure is damaged during implementation of a decision concerning the removal of only an annex, this is examined through the scope of the decision and technical necessity.
In the case file, merely saying "the demolition is unjust" is not sufficient. Which decision was taken on which date, what was to be demolished, which part was actually demolished and how each loss item arose must be explained. This distinction determines both liability and the correct judicial route.
Does filing an action against a demolition decision stop the demolition?
Filing an annulment action does not by itself stop the execution of the act. A stay of execution may be requested within the framework of the conditions in Article 27 of the Administrative Procedure Law (İYUK). Obvious unlawfulness and damage that is difficult or impossible to remedy must be shown together. The irreversible consequences of the demolition must be explained together with the permit and project documents.
If the court has ordered a stay of execution, notification of the decision to the administration and the obligation to implement it are important. A demolition carried out in spite of the decision is also assessed as a failure to comply with a court decision. This subject is detailed in the series' article "A Municipality's Failure to Comply with a Court Decision."
Even if the demolition has been completed, the compensation review does not end. However, the time limits of annulment and full remedy actions and their effects on one another are followed separately. In preparing a compensation claim, one should not wait for the appeal process in the annulment action to run its course.
How is the building value calculated?
The nature, size and legal status of the structure
In the expert examination, the structure's surface area, load-bearing system, building class, age, wear, degree of completion and usable condition before the demolition may be determined. The permit, the approved project and the occupancy permit are assessed together with the actual condition. Although standard unit costs are useful, they alone do not show the real loss for every structure.
The value of the demolished structure and the value of the land should not be confused. If ownership of the land continues, demanding the whole sale price of the land merely because the structure was demolished requires a separate legal ground. Likewise, parts that were not demolished and economic value that was salvaged must be taken into account in the calculation.
Expenditures made in reliance on the permit
There is a difference between construction carried out in reliance on a permit issued by the administration and construction continued while the unlawfulness was known. Later annulment of the permit does not result in all earlier investments being automatically regarded as unlawful conduct. However, the investor's state of knowledge and the stage at which construction was continued are important.
For project, fee and construction expenses rendered futile by cancellation of the permit, the fourth article in this series may be read separately. Claiming the same expense twice, both as demolition value and as permit-cancellation loss, must be avoided.
Can property damage, relocation expenses and loss of earnings be claimed?
| Loss item | Core issue to examine | Useful documents |
|---|---|---|
| Building value | Legal and physical condition of the structure; the demolished part | Permit, project, photographs, on-site examination and expert report |
| Belongings and stock | Existence and ownership of the property and loss connected with the demolition | Inventory, invoice, stock record, delivery and damage report |
| Relocation and storage | The expense being necessary, reasonable and connected with the event | Contract, invoice, payment record |
| Loss of earnings | Realistic period of activity and net earnings not obtained | Commercial books, tax records, orders and contracts |
Instead of writing only a lump-sum value for belongings, an item-by-item inventory should be prepared. The value of used goods is not always the same as the price of new purchase. If repair is possible, the repair cost is discussed; if there is total loss, the economic condition of the item before the event is discussed. Payment made by insurance or another source is also taken into account in order to prevent double recovery.
Loss of earnings is not a hypothetical turnover total. Whether the activity was legally sustainable, for how long it could have continued had the demolition not occurred, and the earnings remaining after expenses are investigated. That the business was already closed for other reasons, or that the loss arises from independent economic causes, affects the calculation.
Non-pecuniary damages are also not automatic. The gravity of the event, its effect on personality rights and the concrete circumstances must be explained. Neither every pecuniary loss nor annulment of an administrative act makes an award of non-pecuniary damages mandatory.
How is evidence preserved before filing an action?
Because a demolition may destroy evidence, it is important to keep records from before and after the event together. The stop-work record, the municipal executive committee (encümen) decision, notification, demolition schedule, implementation record and photographs in the municipal file may be requested. The owner or operator should also preserve dated images, projects and payment documents.
Which questions should the technical determination answer?
The determination should not be limited to the conclusion "the building has been demolished." The dimensions of the demolished part, the scope of the decision, the nature of the structure before the demolition, the condition of the belongings, salvageable values and the possibility of repair should be determined. Evidence should be collected through an authorized expert and a properly conducted examination, without entering an unsafe area.
If an action has been filed, Article 58 of the İYUK is taken into account as to the court to which a request for preservation of evidence in the administrative courts is directed. For a pre-action application, jurisdiction and legal interest are assessed according to the nature of the determination sought and of the dispute. A ready-made petition that directs every demolition dispute to the same court is not reliable.
How are the time limit and jurisdiction determined in a full remedy action?
Loss arising from an administrative act: İYUK 12
Loss arising from the implementation of a demolition decision may be assessed as loss arising from an administrative act. Article 12 of the İYUK regulates the options of a direct full remedy action, filing annulment and full remedy actions together, or first filing an annulment action and going to a full remedy action after the stage stated in the law. For loss arising from execution of the act, the date of execution is also important.
The general period for filing an administrative action, unless there is a special provision, is 60 days. However, this information alone does not show the last day. Notification, execution, notification of the annulment decision or appeal decision, and the dates of any administrative application must be assessed together on a single calendar.
Loss arising from an administrative action: İYUK 13
If the loss arises from an administrative action, as a rule the regime of applying to the administration within one year of learning of it and in any event within five years of the action comes into play. The time limit for the action is assessed upon an express rejection or thirty days of no reply. This route should not be presented as if it were mandatory in all demolition events; the distinction between loss arising from an act and loss arising from an action must be made first.
Full remedy claims arising from a demolition carried out by a municipality in the exercise of public power generally go to the administrative courts. However, features such as a de facto act, a private-law relationship or the independent conduct of a contractor may change the jurisdictional review. The competent court is likewise determined by the nature of the dispute and the venue rules of the İYUK.
A real judicial decision: not every demolition gives rise to compensation
In the Constitutional Court decision Necati Türkistanlı and Nurnisa Türkistanlı, B. No: 2016/14352, 18.06.2020, claims of a violation of the right to property arising from the permit, the construction process and the demolition were assessed. The Court held that the right to property had not been violated as regards Necati Türkistanlı, and that the application had lapsed as regards Nurnisa Türkistanlı.
This decision cannot be used in the form "the value of every licensed structure that is demolished will necessarily be paid." The foreseeability of the legal situation, the development of the construction and the concrete conditions of the interference are important. The different outcomes of the decision for the applicants must also be preserved. The full text in the sources should be read together with the details of the event.
Conclusion
The strength of a compensation claim for unlawful demolition depends, besides the defectiveness of the act, on proving each loss item separately. The permit and demolition file, dated images, the inventory of belongings and the financial records should be prepared together. The first step is to make the act–action distinction that determines the time limit for the action; the second is to establish the real loss without calculating it twice.
Related articles: A Municipality's Failure to Comply with a Court Decision: Enforcement of Annulment and Stay of Execution Decisions; Compensation for Unlawful Sealing and Business Closure: Loss of Activity and the Administration's Liability; Objecting to a Demolition Decision and the Annulment Action: Stop-Work Record, Sealing and Stay of Execution.
Frequently Asked Questions
If the demolition decision is annulled, does the municipality pay of its own accord?
An annulment decision does not determine the amount of each loss item. For compensation, an appropriate application and the full remedy route, together with an assessment of the loss and causation, may be necessary.
Can compensation be claimed for belongings in an unlicensed structure?
The legal status of the structure and damage to belongings are different subjects of review. The existence and ownership of the belongings, and the link between the loss and the administration's conduct, must be proved.
Is taking photographs after the demolition sufficient?
Alone, it is often not sufficient. A technical examination together with the condition before the event, the project, measurements, invoices and municipal records may be necessary.
Is it mandatory to apply to the municipality first in all demolition cases?
No. The procedures for act-related losses under İYUK 12 and action-related losses under İYUK 13 are not the same.
If my business closed during the demolition, can I claim payment of the entire turnover?
Turnover is not directly net loss. The period of activity, expenses, legal sustainability and losses arising from other causes are examined.
Sources
- Administrative Procedure Law No. 2577: Articles 7, 12, 13, 27, 28, 34, 36 and 58.
- Zoning Law No. 3194: especially Articles 32 and 39, depending on the legal basis of the demolition.
- Constitution of the Republic of Türkiye: Articles 35, 125 and 138.
- Constitutional Court, Necati Türkistanlı and Nurnisa Türkistanlı, 2016/14352 — official decision record; accessible full-text transcription. Date of decision: 18.06.2020; Official Gazette: 23.07.2020, 31194.