Expropriation is the taking, by the State or by public bodies, of privately owned immovables — in return for payment of their value — for a service serving the public interest, such as a road, a dam, an electricity transmission line, a school or a hospital. The right of property is a fundamental right guaranteed by the Constitution; this right may be interfered with only on the ground of the public interest, in compliance with the procedures and principles set out in the law, and provided that its real equivalent is paid in advance. For the owner to whom an expropriation decision concerning his immovable is notified, the first matter of concern is most often whether the value offered reflects the real value. At this point, setting the process up correctly from the outset with an experienced Izmir expropriation lawyer ensures both that the value is determined on the basis of the real value and that transactions contrary to procedure are objected to in good time. As Av. Aydın, we offer our clients comprehensive support at every stage, from the administrative stage through to the litigation process, and from the determination of value to actions concerning encroachment.
Our Services as an Expropriation Lawyer
Expropriation law is a technical field in which administrative law and private law are intertwined, conducted essentially within the framework of the Turkish Expropriation Law No. 2942 (Kamulaştırma Kanunu). The service we provide in this field is not limited to the representation of the owner; sometimes claims for compensation against unlawful transactions of the administration are in issue, and sometimes actions brought to recover the equivalent of immovables that have been taken de facto. An Izmir expropriation lawyer must be able to assess correctly the factors affecting the value of the immovable and to review the expert reports from a technical standpoint. The principal types of case and transaction that we handle are the following:
- Action for the determination of value and registration: Where agreement on the value cannot be reached between the administration and the owner, the administration brings an action before the civil court of first instance for the determination of the value and the registration of the immovable in the name of the administration. In this action, the correct determination of the real value of the immovable is the most critical stage of the process.
- Increase of the expropriation value (tezyid-i bedel): An owner who considers that the value determined or offered by the administration falls below the real value of the immovable may bring an action seeking the increase of the value. The location, zoning status and characteristics of the immovable form the basis of this action.
- Actions for de facto expropriation (physical and legal encroachment): Where the administration takes the immovable de facto without carrying out a proper expropriation (physical encroachment), or allocates the immovable to public use by a zoning plan and fails to take any action for a long period (legal encroachment), the owner acquires the right to claim value and compensation.
- Urgent expropriation procedures: In the extraordinary situations provided for in the law, the administration may resort to urgent expropriation and take the immovable early. In this process too, the value-related and procedural rights of the owner must be protected.
- Actions for the annulment of the expropriation transaction: Where the expropriation transaction is considered to be unlawful in respect of the public interest decision, procedure or authority, an action for annulment may be brought before the administrative jurisdiction. This action is directed at ensuring that the immovable remains with the owner.
- Claims for compensation against the administration: The redress of loss suffered by reason of the expropriation transaction or the encroachment, and the claiming of interest and other losses arising from late payment, are assessed within this scope.
- Expropriation of an easement right: Where not the whole of the immovable but only the use of a part of it is restricted (for example, the passage of an electricity transmission line or a natural gas pipeline), the expropriation of an easement right comes into question; in this situation, the correct calculation of the loss of value arising in the immovable is important.
- Partial expropriation and loss of value: Where only a part of the immovable is expropriated, the decrease occurring in the value of the remaining part may also be made the subject of a claim.
- Requests for vacation, eviction and material rectification: Legal support is also provided in disputes concerning eviction, relocation and the like that arise in connection with the expropriation process.
In all of these types of case, an Izmir expropriation lawyer can both protect the owner's rights at the administrative stage and, by reviewing the technical expert reports during the litigation process, ensure that the real value is reached. As Av. Aydın, we believe that being able to assess the file from the perspective both of the right of property and of administrative procedure provides an important advantage in seeing all the dynamics of the process.
The Expropriation Process and Its Stages
Expropriation is a process consisting of certain stages regulated in the Turkish Expropriation Law No. 2942 (Kamulaştırma Kanunu). A correct understanding of these stages is important in knowing which right is to be exercised at which moment. The process proceeds essentially through an administrative stage and a judicial stage.
The Administrative Stage and the Negotiation (Purchase) Procedure
The expropriation process begins with the relevant administration taking a public interest decision and deciding to expropriate the immovable. The law imposes on the administration the obligation to acquire the immovable, first and foremost, by way of purchase. Within this scope, the administration assesses a value for the immovable through a valuation commission and makes the owner an offer of purchase by negotiation. If the owner accepts this offer, the immovable is transferred to the administration by agreement and its value is paid. At this stage, whether the value offered reflects the real equivalent of the immovable must be examined carefully; for in transfers made by agreement, the possibility of subsequently objecting to the value may be limited. The assessment to be made at the administrative stage with an Izmir expropriation lawyer can prevent the owner from accepting a value below the real value.
The Judicial Stage: The Action for Determination of Value and Registration
Where agreement on the value cannot be reached between the administration and the owner, the administration brings an action before the civil court of first instance for the determination of the value and the registration of the immovable in the name of the administration. The court carries out a site inspection in order to establish the value of the immovable and obtains a report from a panel of experts. In this process, the value of the immovable is determined by the court, the value so established is blocked, and the immovable is registered in the name of the administration. The judicial stage is the most critical period as regards the owner's reaching of the real value, for the expert reports play a decisive role in the determination of the value. For this reason, the technical review of the expert reports and, where necessary, the raising of objections are of great importance.
Expert Examination and Valuation in the Determination of Value
At the heart of expropriation cases lies the determination of the real value of the immovable. The value is calculated by different methods according to the nature of the immovable. While the comparable-sales method is taken as the basis for immovables having the character of building land, criteria such as the income-generating capacity of the immovable (the net income method) are assessed for land and agricultural land. The Expropriation Law has laid down the factors to be taken into account in the determination of value.
The principal factors taken into consideration in the correct determination of the value are the following:
- The kind and nature of the immovable: Whether it is building land, land, a building or agricultural land requires different methods of valuation.
- Its location and surroundings: The region in which the immovable is situated, its transport facilities and the level of development in the surrounding area directly affect the value.
- Zoning status: The position of the immovable in the zoning plan, the conditions of construction and the intended use are an important element of value.
- Comparable sales: The real sale values of immovables of a similar nature in the vicinity are the fundamental criterion for building land.
- Yield and income capacity: For agricultural land, the annual net income of the immovable forms the basis of the valuation.
Whether the report prepared by the panel of experts assesses these factors correctly and completely is decisive as regards the owner's reaching of the real value. An erroneous selection of comparables, a mistaken assessment of the zoning status, or the disregarding of value-enhancing factors may cause the value to fall below the real value. An Izmir expropriation lawyer, by examining the expert report from a technical and legal standpoint, prepares objections against determinations that do not reflect the truth and, where necessary, requests a fresh expert examination.
Actions for De Facto Expropriation
De facto expropriation is the situation in which the administration takes an immovable without carrying out a proper expropriation transaction, and it is one of the disputes most frequently encountered in practice. This situation may arise in two forms.
Physical encroachment is the administration's taking of the immovable de facto without carrying out any expropriation transaction — for example, by running a road across it or by actually allocating the immovable to a public service. In this situation, the owner has the right to claim the value of his immovable and the loss he has suffered. Legal encroachment, on the other hand, is the situation in which the immovable is allocated by a zoning plan to a public use such as a road, a green area or a school, but no expropriation is actually carried out for a long period. The owner becomes unable to use or dispose of his immovable by reason of the zoning restriction. In these cases, the owner acquires the right to demand that the value of the immovable be paid. Because actions for de facto expropriation are in the nature of an infringement of the right of property, they require careful legal assessment. An Izmir expropriation lawyer, by correctly determining the type of encroachment, accurately identifies the course of action and the court having jurisdiction.
Urgent Expropriation
Urgent expropriation is an exceptional procedure which, in the extraordinary situations provided for in the law, allows the administration to take the immovable before its value has been determined by the court. Recourse is generally had to this course in cases of a need for national defence, in situations where there is a public interest in acting urgently, or in situations provided for in special laws. In urgent expropriation, the administration obtains from the court a decision to take the immovable and, by depositing a determined value into the court's account, may begin to use the immovable.
Although urgent expropriation affords the administration the possibility of an early taking, it does not extinguish the owner's rights to reach the real value and to procedural safeguards; the process is nonetheless subject to legal review.
Even though, in urgent expropriation, the taking takes place early, a separate litigation process runs for the definitive determination of the value. In this process, the owner's rights must be protected with care so that he reaches the real value of the immovable that has been taken early and so that the process is conducted in accordance with procedure. Whether the conditions for an urgent expropriation decision are genuinely present is also a matter that must be assessed from a legal standpoint.
Annulment of the Expropriation Transaction
Expropriation is an administrative transaction and, like other administrative transactions, is subject to review of its lawfulness. Where the expropriation transaction is considered to be unlawful in respect of the public interest decision, authority, form, cause or subject-matter, an action for annulment may be brought before the administrative jurisdiction. The action for annulment is directed not at the value but at the unlawfulness of the expropriation transaction itself; its aim is to ensure that the immovable remains with the owner.
Among the principal grounds of unlawfulness that may be advanced in an action for annulment are: the failure to take the public interest decision in accordance with procedure, the lack of authority of the administration carrying out the expropriation, the failure to comply with the rules of form in the expropriation decision, and the absence in reality of a public interest. The action for annulment must be brought within certain periods; missing this period causes the transaction to become final. Because the annulment of the expropriation transaction and the action concerning value may be heard in different branches of the jurisdiction (the administrative and the ordinary jurisdiction), obtaining the support of an Izmir expropriation lawyer is important in order to manage the process correctly and to prevent losses of rights.
Izmir Expropriation Lawyer Fees
The expropriation lawyer's fee is among the foremost matters that most owners are curious about at the start of the process. The most important factor determining the fee is the type of file, the value of the immovable, the scope of the action and the anticipated workload. There is a significant difference, in terms of the effort and technical expertise required, between making an assessment at the administrative stage and conducting an action for the increase of value or for de facto expropriation that may last for years. The table below has been prepared with a view to providing a general framework for the fee arrangement; it is not a definitive figure but is intended to show the rationale and the factors.
| Type of Transaction / Case |
Principal Factors Affecting the Fee |
| Administrative-stage advice and assessment of the offer |
The nature of the immovable, the examination of the value offered and the scope of the process |
| Representation in the action for determination of value and registration |
The value of the immovable, the site-inspection and expert process, the volume of the file |
| Action for the increase of value (tezyid-i bedel) |
The amount of increase sought, the value of the immovable and the duration of the proceedings |
| Action for de facto expropriation |
The type of encroachment, the value of the immovable and the complexity of the dispute |
| Action for the annulment of the expropriation transaction |
The nature of the administrative transaction and the scope of the preparation of the legal pleadings |
| Legal advice / preliminary meeting |
The scope of the problem and the examination it requires |
Lawyers' fees may under no circumstances be set below the Minimum Attorney Fee Tariff (AAÜT) published each year by the Union of Turkish Bar Associations. This tariff safeguards the minimum value of the legal service and constitutes the lower limit of the fee arrangement. An important feature of expropriation cases is that the value of the action is tied to the value of the immovable; for this reason, a proportional attorney fee calculated on the basis of the value of the immovable most often comes into question in these cases. This fee, which may be agreed as a certain percentage of the value, is discussed freely according to the particular features of the file, the effort to be expended and the need for expertise. As Av. Aydın, after assessing your file at the preliminary meeting and clarifying its scope, we provide transparent information on the fee; it would not be a sound approach to promise a definitive figure without examining the concrete file.
A distinction that is frequently confused here should also be drawn attention to. The attorney fee paid to the lawyer is the consideration for the legal service and is based on the contract between the client and the lawyer. By contrast, the costs of litigation are the items paid to the State or to third parties during the litigation process, such as court fees, site-inspection expenses, expert fees, and the costs of witnesses and notifications. Since a site inspection and an expert examination are almost inevitable in expropriation cases, these expenses may constitute a significant item in the file. Moreover, depending on the outcome of the action, the attorney fee awarded against the other party that the court may impose on the opposing side may also come into question; this fee is a concept distinct from the fee in the contract made with the lawyer. When working with an Izmir expropriation lawyer, discussing these items clearly from the outset prevents surprise costs and makes the process predictable.
Who Is the Best Expropriation Lawyer in Izmir?
One of the questions most searched for on the internet is "who is the best expropriation lawyer in Izmir". To put it honestly, there is no single "best" lawyer valid for every file. The correct expression is not the "best" lawyer but the lawyer most suited to the file. For every expropriation file has its own particular conditions, the nature of the immovable, the method of valuation and the type of dispute. A lawyer highly experienced in the valuation of agricultural land may require a different approach in a file of an entirely different nature concerning the zoning value of an urban plot. For this reason, it is far healthier to focus on finding the lawyer suited to the requirements of your file, rather than on the search for the "best".
Some criteria that may be assessed when choosing a good expropriation lawyer are the following:
- Experience and field of expertise: The lawyer's accumulated experience in the field of expropriation law and real-estate valuation, in matters close to the type of immovable in your file, is important.
- Command of expert reports: A good lawyer is able to review the valuation methods and the expert reports from a technical standpoint; he can detect errors in the selection of comparables and in the zoning assessment.
- Communication and transparency: Working with a lawyer who explains the process in an understandable way, presents a realistic picture and does not make exaggerated promises inspires confidence.
- Follow-up of the process: Since the periods for site inspection, expert examination and objection in expropriation cases are critical, a lawyer who follows the file meticulously should be preferred.
- Adherence to professional ethics: A lawyer who makes an honest and realistic assessment, rather than one who gives guarantees such as "we will definitely increase the value by such and such an amount", should be preferred.
It should be known that in expropriation cases no lawyer can guarantee in advance the outcome or the value to be determined; for the decision depends on the site inspection, the expert examination and the discretion of the court. When choosing an Izmir expropriation lawyer, preferring a lawyer who assesses your file honestly and explains the possible scenarios clearly, rather than one who promises you a definite result, will be in your interest in the long run. As Av. Aydın, our approach is to avoid exaggerated promises and to defend our client's rights in the strongest way by presenting a true picture.
Time Limits and Points to Watch in Expropriation Cases
In the expropriation process, the meticulous observance of the time limits and the rules of procedure is decisive as regards the protection of rights. The losses of rights most frequently encountered by owners stem from the failure to object in time to the expropriation decision or transaction, the acceptance at the administrative stage of an offer below the real value without any assessment, and the failure to object in time to the expert reports.
Another feature of expropriation cases is the importance of correctly determining the court having subject-matter and territorial jurisdiction. While actions for the determination of value, the increase of value and de facto expropriation are heard in the ordinary jurisdiction (the civil courts of first instance), the action for the annulment of the expropriation transaction is brought before the administrative jurisdiction. Actions brought in the wrong branch of the jurisdiction may lead to losses of time and of rights. Furthermore, since expropriation cases require a site inspection and an expert examination, they are for the most part technical and long-running files. In this process, the correct reflection in the file of all the factors affecting the value of the immovable is of great importance. An Izmir expropriation lawyer, by managing these technical processes, endeavours to ensure that the owner reaches the real value and that his rights are protected.
Our Approach as Av. Aydın
Expropriation law is a technical and sensitive field in which administrative law and knowledge of real estate and valuation are intertwined. The particular conditions of each file, the nature of the immovable, the method of valuation and the type of dispute call for a different legal strategy. As Av. Aydın, we first assess the file in a holistic manner, examine in detail all the factors affecting the real value of the immovable, and endeavour, from the very beginning of the process, to prevent possible losses of rights.
We offer our clients in Izmir and the surrounding area support at every stage, from the assessment of the offer at the administrative stage to actions for the determination of value and registration, and from the increase of value to the processes of de facto expropriation and the annulment of the expropriation transaction. Our aim is not merely to attend the hearings; it is to plan all the stages of the file in a predictable manner, to review the expert reports meticulously, and to place the owner's rights on the strongest footing. The losses of rights most frequently encountered in expropriation files stem from the failure to object in time, the acceptance without assessment of offers below the real value, and the overlooking of technical errors in the expert reports.
Having an expropriation decision concerning one's immovable notified is, for most owners, an unexpected and wearing process. Having at your side a legal adviser experienced in the field during this process both protects your right of property and ensures that the process proceeds in a more predictable and less wearing manner. For any question you may have concerning expropriation law, whether it be a matter of the determination of value, of encroachment or of an action for annulment, you may contact our office.
