1. GENERALLY
Urban Transformation Project (UTP) is the alteration, transformation, improvement and vitalization of the urban environment which becomes old, ruined or abandoned over time. These changes are made, considering the socio-economic and physical conditions of present days.
UTP decision may stem from different needs and according these needs, different legislation is implemented. Both, the Administration which will decide UTP and people, who will be affected by the decision, have different rights and responsibilities according the legislation implemented. In this regard, first, it will be explained that, how the Administration decides UTP and the decision is released based on which legislation. Second, implementation of decision and problems about implementation and juridical steps will be explained. Then, the urban generation process will be generally evaluated.
2. DECIDING AND IMPLEMENTING UTP
a. UTP According the Municipal Law Numbered 5393 and Metropolitan Municipal Law Numbered 5216
UTP is legally arranged in the Article 73 of Municipal Law. According this Article; Municipality, with council decision, can implement UTP projects, in order to create housing zones, industrial areas, trade areas, technology parks, public areas, recreation areas and social reinforcement zones, to protect the historical and cultural fabric of the city and to take precautions for earthquakes.
According the Metropolitan Municipal Law; in the borders of Metropolitan Municipality and urban area, Metropolitan Municipality is authorized to decide UTP Projects. As long as The Metropolitan Municipality Council approves, district/county municipalities can decide UTP in their own borders.
According to these two laws, municipalities, with the council decision can decide UTP. Related ones can bring lawsuits before the Administrative Courts and judicial remedy can be applied.
b. UTP According to the Law Numbered 5366 on Usage of Timeworn Historical and Cultural Real Property with Restoration and Protection
According to this law, UTP can be made in order to protect timeworn historical and cultural real property. Provincial Special Administrations with the decision of provincial assembly and Municipalities with the decision of council can decide UTP. Judicial remedy can be applied against these decisions.
c. UTP According to the North Ankara Entrance UTP Project Law Numbered 5104
This law is legislated for the development of physical condition and environmental view of the area which starts from the Esenboğa Airport and reaches out to Ankara city center. Metropolitan Municipality is responsible for the implementation of this law.
d. UTP According the Law on Transformation of Disaster Risk Areas Numbered 6306
By the help of this law, Administration, using public power, can make UTP projects about the disaster risk areas and disaster risk constructions. Ministry of Urbanization and Environment is mainly responsible for the implementation of this law. The Housing Development Administration of Turkey, Municipalities, Metropolitan Municipalities and Provincial Special Administrations are also responsible of execution of the law.
According to this law, institutions and organizations licensed by the Ministry will identify disaster risk buildings. Owner of the disaster risk buildings can demand this identification from the Ministry. The Ministry also can make the owners or the municipalities to have these identifications. The owners can make objections against the identifications within 15 days. These objections will be examined by the technical crew of the Ministry and the Ministry will give the final decision.
The owners of the independent sections in disaster risk buildings can bring lawsuits before the Administrative Courts within 30 days after the notification about identification of the disaster risk buildings or evacuation of the buildings or destruction of buildings.
As the most applied UTP Law, 6306 Numbered Law is implemented in the order below;
1. Static and Architectural Projects of the building has to be attained by applying the Municipality Development Directorate and Directorate of Land Registry.
2. In order to get Building Earthquake Risk Report, application is needed to be made to the organization licensed by the Ministry of Urbanization and Environment.
3. Earthquake Risk Report will be prepared by the licensed organization after the technical examinations.
4. Licensed Organization will present the Earthquake Risk Report to the Ministry of Urbanization and Environment Provincial Directorate of UTP within 7 days after the report is prepared.
5. The Ministry will examine the report within 10 days and if there are no absences, it will be ratified. If the building is decided as a disaster risk building after the report, Directorate of Land Registry will attach annotation to the register. Buying and selling of the building is possible because the annotation is just for information.
6. The Directorate of Land Registry will notify the Ministry decision to the owners of the independent sections. The owners have the right to object to this decision within 15 days by applying the Provincial Directorate of the Ministry. After the notification of the decision, if the building is a disaster risk building, Building Joint Resolution Protocol has to be prepared within 60 days, by at least 2/3 majority of the owners. In this protocol it will be decided that, when, how, by whom, the building will be constructed and such other questions will be answered.
7. Building Joint Resolution Protocol has to be presented to the Ministry of Urbanization and Environment UTP Provincial Directorate with a petition. If the owners cannot sign a Building Joint Resolution Protocol within 2 months with the 2/3 majority, the building will be destructed by the Ministry.
8. The owners have to make an agreement with a construction company for the construction or strengthening of the buildings.
9. For the construction or strengthening of the building, owners can apply for a loan to the Banks which have an agreement with the Ministry. This loan is named UTP Loan.
10. For the UTP Rental Assistance, the owners can apply to the Ministry Provincial Directorate.
11. For the construction or strengthening of the buildings, owners will make a contract of construction with the chosen company and the construction of the new buildings will start.
12. When the construction is completed, the owners will take their Certificate of Ownership from the Municipalities.
3. THE LEGAL PROBLEMS WHILE REALIZING THE URBAN TRANSFORMATION PROJECTS
a. The Limitation of the Right of Possession
The right of possession is provided in the Article 35 of Turkish Constitution. By this right, owner has the sub-rights of usage of property and taking decisions about property. Besides, the right of possession is strengthened by also providing in Turkish Civil Code elaborately.
As an exception, UTP may limit the right of possession secured by Turkish Constitution and other legislation. UTP seizes the right of possession of a person and transfers it to municipality.
However, in second paragraph of the Article 35 of Turkish Constitution, it is stated that, the right of possession can be limited by public interest. The term of public interest is ambiguous so, it can be interpreted widely. According to the legislation related to UTP, it is obvious that the public interest exists while applying these projects. Therefore, the public interest in UTP would be sufficient to limit the right of possession.
According to the case laws of European Court of Human Rights, since the public interest is a wide area, to prevent the usage of public interest by having a bad faith; interest of person and public must be examined carefully and there must be a fair balance between them.
As a result, UTP may limit the right of possession because of public interest. However, the balance of interests must be secured by jurisdiction.
b. The Limitation of Acquired Rights
If a right emerges legally, results in favor of the owner and it remains unchanged in spite of related amendments; the right is called “acquired rights.” As an example of reflection of UTP on the limitation of acquired rights; pulling down legally built structures because of UTP or changing title of a settlement (from residence to commerce and industrial area) would be given.
However, the most crucial point when limiting the acquired rights is compensating third person’s losses which emerge in the scope of the application of UTP. Otherwise, UTP cannot carry on legally.
c. Legal Remedies Against UTP
As a basic principles of being social and democratic state, actions of administration has to be reviewed by judiciary power. Therefore, legal remedies against actions of administration are secured by Turkish Constitution. To prevent losses caused from actions of administration, the term of “suspension of execution” is provided.
Since actions taken in the scope of UTP are originated from the administration, those actions will be supervised by administrative jurisdiction. Therefore, Administrative Courts will be the authority to juridify and resolve disputes.
Additionally, according to the case law of the Constitutional Court, if there are required circumstances, it is possible to decide “suspension of execution” for actions of administration for UTP by Administrative Courts.
d. Liability of the Administration for UTP
For the actions of the Administration in UTP, fault liability or non-fault liability of the Administration can be emerged. Fault liability of the Administration is occurrence of a loss because of illegal actions of the Administration. For example, by an action taken disregard of the Administration, a loss occurs in a person’s right of possession; it would be fault liability.
Non-fault liability is an exception for legal systems. Non-fault liability of the Administration is occurrence of a loss because of legal actions of the Administration such as decreasing values of third persons’ structures because of UTP.
4. CONCLUSION AND EVAULATION
a. Turkey is located in an important seismic belt so the Governments must ensure that structures are well-built and strong enough. Therefore, UTP is an highlighted issue in present days.
b. UTP in Turkey is provided in various legislations. According to the legislations, in some cases, owners may take the decision of UTP; in other cases the Administrations are able to do that by using force.
c. Against actions of the Administration, related third persons are able to bring suit before the Administrative Courts within the indicated time periods.
d. Under the necessary circumstances, “suspension of execution” may be applied by the Administrative Courts.
e. The construction companies which conduct UTP should examine aforementioned legal disputes for related third persons.
f. Construction contracts are provided in the Special Provisions of the Code of Obligations and the disputes arising from those kinds of contracts will be held by the Civil Courts.
