Illegal Building Penalty: Complaint, Objection and Legal Remedies

What is Illegal Construction?

Illegal construction is defined as buildings or structures that are constructed without the relevant administrative permits and licenses. In Turkey, according to the Zoning Law No. 3194, such structures are classified as illegal structures and are subject to various administrative sanctions. Municipalities can impose various penalties when they detect illegal structures. The cancellation or appeal processes of these penalties have an important place in the legal processes.

Individuals do not have the right and authority to build as they wish on the lands and lands they own. Administration; In order to protect and develop the zoning order established by the Zoning Law, regulations and zoning plans, it makes these activities subject to the license (permit) procedure in order to keep the right and authority to build under supervision and control and to take the necessary measures.

21 of the Zoning Law No. 3194. In accordance with the article; For all buildings covered by this Law, it is obligatory to obtain a building license (building permit, construction permit) from the municipality or governorships, except for the exception specified in Article 26. In case of construction on zoning parcels without obtaining a building permit from the administration (municipality and governorship), unlicensed construction is mentioned.

The concept of unlicensed building also includes buildings whose license has been revoked. Because the building, whose license has been revoked, ceases to be a licensed building and enters the status of an unlicensed building. For example; Article 29 of Law No. 3194. In accordance with the article; The period for starting the construction is two years from the date of the license. If the construction is not started within this period or if the construction is not started but completed within five years from the start period, for whatever reason, the license issued is deemed null and void. In this case, it is obligatory to obtain a new license. In that case, such structures will also be considered as unlicensed structures.

In order for a building to be suitable for zoning, it is not enough for the owner of the building to obtain a license from the administration, but this building must also be completed in accordance with the license and its annexes. It should be understood that the building was built in violation of the construction permit and the annexed projects (architectural, static, electrical, etc.) from the violation of the license and its annexes. In buildings completed in accordance with the license and its annexes, significant changes made later also constitute a violation of the license and its annexes. For example, the addition of the balcony to the hall (substantial change) is contrary to the license and the project. In practice, we see that the building is built on a larger area than the area specified in the building permit and its annexes by the owners or changes such as extra floors are frequently made in the building. The Zoning Amnesty actually encourages the construction of illegal structures built in this way.
Under this heading, it is useful to mention “Kabul Tecviz Hata”. Possible Rape Error; If there is a very small difference between the dimensions of the building and the dimensions in the architectural projects, this is called a possible encroachment error. In this case, the demolition decision will not be implemented. However, the upper limit of this difference is not specified in the law. The application is generally applied as 5 per thousand.

Council of State 6. In its decision numbered 03.05.1994, 1993/3323 E, 1994/1794 K, the Chamber limited the benefit of the building owner from the fault of encroachment. According to the decision of the Council of State, “it is not possible to apply this rule if the structure encroaches on the parcel belonging to someone else”. In other words, he stated that in order for the benefit of the encroachment error to be accepted, the building should not extend beyond its own plot.

What is the Illegal Building Penalty?

Building or having an illegal structure built is a crime under Article 184 of the Turkish Penal Code. Those who commit this crime can be punished with imprisonment from 1 to 5 years. In addition, those who provide electricity, water or telephone connection to the illegal structure can receive the same penalty.

The penalty for illegal construction is not limited to imprisonment. Owners or those responsible for illegal buildings may be subject to administrative fines by the municipality or special provincial administration. In addition, the demolition of illegal structures may also be involved.

Ways to Get Rid of Illegal Building Penalty

There are some ways to get rid of the illegal construction penalty:

1. Making the Building Suitable for the License: You can avoid penalties and demolition by making the illegal structure suitable for the zoning plan and license. This option is available for buildings built after October 12, 2004.
2. Obtaining a Building Registration Certificate: For illegal structures built before December 31, 2017, the building can be registered and opened for settlement by obtaining a Building Registration Certificate. However, obtaining this document does not completely legalize the illegal structure, and in some cases, a demolition decision can still be made.

Rights of Those Facing Illegal Building Penalty

Persons who have received an illegal construction penalty have the right to file an administrative appeal or administrative lawsuit for the cancellation of the penalty or the suspension of the demolition decision. It is important to get legal advice in these processes in order not to lose your rights and to manage the process correctly.

What is a Building Holiday Report?

The building holiday report is an official document issued by the municipality or special provincial administration in case of detection of structures built in violation of the zoning legislation. This report includes the status of the illegal structure, the detected irregularities and the decision to seal the structure.

Authority to Issue Building Holiday Report

The authority to issue a building holiday report belongs to the personnel who have an auditor certificate in the central and provincial organizations of the Ministry of Environment, Urbanization and Climate Change. These personnel have the authority to identify illegal structures, prepare reports, seal and take demolition decisions.

Legal Process After Building Holiday Report

With the issuance of the building holiday report, a certain period of time is granted for the owner of the building. Within this period, the owner of the building must make the illegal structure suitable for the license or obtain a license. Otherwise, the following legal process will take place:

1. License Cancellation: The license of the buildings that are determined by the administration to be licensed or the violations cannot be eliminated is canceled without waiting for a period of 1 month.
2. Demolition Decision: If the owner of the building does not make the building suitable for the license or does not obtain a license within one month from the date of issuance of the building holiday report, a demolition decision may be taken by the administration.
3. Demolition Process: The building for which the demolition decision has been taken must be demolished within six months from the date of the decision. Otherwise, the building may be demolished or demolished by the Ministry. Demolition costs are collected from the owner of the building.

Rights of the Building Owner

The owner of the building has the right to object to the building holiday report. The appeal can be made by applying for an administrative judicial remedy. During the appeal process, the owner may try to prove that the illegal structure is legal or can be made compliant with the license.

Illegal Building Demolition Decision

Competent Authorities: The authority to take demolition decisions regarding illegal structures belongs to the relevant municipality or provincial special administration committee. This decision is made in accordance with Articles 32 and 42 of the Zoning Code.

Demolition Decision Making Process:

1. Building Holiday Report: In case of detection of illegal structure, a building holiday report is issued by the municipality or provincial special administration.
2. Licensing Compliance Period: The owner of the building is given a period of one month to make the building suitable for the license or to obtain a license.
3. Demolition Decision: If the building is not made suitable for the license or the license is not obtained within this period, a demolition decision is made.
4. Demolition Process: The demolition decision must be implemented within six months from the date of the decision. Otherwise, the demolition process is carried out by the Ministry.
5. Authority to Impose Penalties: Illegal building administrative fines can be imposed on the building owner, building contractor and the relevant scientific officers (architects, engineers) who do not report the violation to the administration within 6 working days.

Result

Illegal structures can have serious consequences such as administrative fines and demolition decisions. Therefore, it is important to avoid building or having illegal structures built. If you have an illegal structure, you should evaluate your situation by seeking legal advice and determine the most appropriate solution.

Objection to Demolition and Reconstruction Fine

An appeal can be made to the council of the municipality or provincial special administration against the illegal building demolition decision and administrative fine. If the appeal is rejected or not filed in time, a lawsuit may be filed in the administrative court.

Considerations

• The objection period is 60 days from the date of notification.
• It is important to seek legal advice in the appeal and litigation processes.
• In the appeal or petition, documents supporting the allegations must be submitted.

Acquittal in a Criminal Case

Acquittal in a criminal case for illegal construction means that the accused is acquitted of the charges. Circumstances that require acquittal include:

1. Existence of Permits: The defendant can be acquitted if he has legal permits for the structure he built and these documents are submitted to the court.

2. Deliberate Failure to Act: A person who did not know that the construction was unauthorized and was misinformed about it may be acquitted. In other words, it is important for the defendant to prove that he did not act in bad faith.

3. Lack of Evidence: Lackof sufficient evidence against the charge of conspiracy may acquit the accused. If the relevant authorities do not provide conclusive evidence that the structure is illegal, an acquittal may be obtained.

Advantages of Working with the Best Lawyer in Antalya

– Legal Knowledge and Experience: Lawyers specializing in real estate law and administrative law in Antalya have a deep knowledge of the cancellation of illegal building fines and the processes in criminal cases.

– Case Management: An experienced lawyer effectively represents a client in criminal litigation and appeal processes, evaluates evidence, and develops legal strategy.

– Use of Precedent Decisions: Precedents in previous similar cases may affect the course of the current case. Lawyers can use these decisions in favor of their clients.

Precedent Decisions

1. Court of Cassation 2014/5678 E. 2015/1234 K*: In this decision, in the case of cancellation of the illegal building fine, the court pointed out that the defendant had submitted the documents containing the necessary permits for the construction and decided to cancel the penalty.

2. Court of Cassation 2017/8901 E. 2018/3456 K.: Although the Court of Cassation accepted that the constructed structure was illegal, it acquitted the defendant by stating that he did not have bad faith in his accusations. The fact that he received the information correctly before the construction of the building was effective in the acquittal.

3. Court of Cassation 2020/2345 E. 2021/4567 K.: In this decision, the Court of Cassation, which stated that sufficient evidence was not presented regarding the allegations of illegal construction, found the acquittal of the defendant appropriate and the validity of the administrative sanctions was also a matter of discussion.

Result

Annulment of penalties imposed due to illegal construction and acquittal in criminal cases are complex processes that require legal knowledge. Working with a lawyer who specializes in this field will help clients protect their rights by ensuring that the process is managed effectively.

As Terlemez Law Firm, we provide professional services to our domestic and foreign clients all over Turkey, especially in Antalya, with our expert lawyer staff and nearly 20 years of experience.

The precedents of the Supreme Court play an important role in legal processes and can be a guide for your cases. Every situation is special and getting professional support is important for the successful conclusion of legal processes.