Ayse Kudat
Social Assessment
November 30, 2001
Ankara, Turkey
IT LOOKS GOOD ON PAPER
DIFFICULTIES ENCOUNTERED IN THE IMPLEMENTATION OF
THE NEWLY AMENDED EXPROPRIATION LAW
1. A large number of municipalities and central government
organizations have attempted to use Expropriation Law 4650 since
May 2001. There are many common elements in the practical
problems encountered. These apply both to projects that attempt to
lease or expropriate land for horizontal projects such as irrigation,
roads, water supply and sanitation pipelines, and to projects that
require a substantial amount of land in a specific site (such as
treatment plants, dams, etc.). The director of the expropriation
department of one governmental agency summed up his experience:
“finally we have money to acquire land but everything has come to a
stop because the new procedures tie our hands.”
2. The law requires exchange of information between different
government departments, particularly with respect to the
establishment of ownership and the valuation of land/assets. Yet,
expropriation departments are told that other agencies have much to
do and cannot provide information in a timely manner.
3. The crop prices obtained from official sources point to dramatically
high variation from one year to another, making it difficult for the
valuation commissions to estimate the revenue stream of land under
different crops.
4. Prices for certain crops are more easily established than others. For
instance, tea, tobacco and hazelnut cultivation is dominant in the
Black Sea region; the cost of cultivation and unit prices for these can
be obtained by relevant agencies. Information for other crops is
difficult to obtain in a reliable manner.
5. When expropriation departments attempt to calculate costs of
growing crops, calculations are made difficult by the high input
prices and other expenditures. For instance, the interest on loans
received by farmers for agricultural credit from the Bank of
Agriculture, has been very high. Taking this into consideration in the
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estimation on the net income from land produces high values and
pushes the expropriation or lease prices unrealistically high.
6. The valuation commissions established by the expropriation agencies
are not subject to the same pressure as the local valuation
commissions that operated in the past. Under the new Law, the
agency commissions are required to devote more attention to
reaching a “scientific” valuation figure. These figures are often far
below the figures established by the local level commissions in the
past. Therefore, owners/users are reluctant to agree on the new
prices offered by the expropriation departments.
7. The valuation of tress also presents a major problem. In some
regions (e.g., Black Sea), trees are planted among crops and orchards
are rare. In the southern regions, on the other hand, orange or lemon
tree orchards are dominant. Expropriation department face major
problems and are challenged by the owners in the valuation of
individual trees. Moreover, large sub-regional differences in this
respect further complicate issues.
8. The law requires that individual plots are visited and the valuation
records are created in the presence of owners whose signatures are
on these records. However, meeting owners during plot visits is
difficult. When owners are invited for negotiations, they often
challenge the accuracy of these records and refuse to sign them. The
members of negotiation commissions report losing excessive time in
trying to convince owners to review and sign these records. There are
many instances where they fail to do so.
9. Because there is no requirement to send a “registered letter with
confirmation” (iadeli taahhutlu), the expropriation agencies cannot
establish whether the owners have indeed received the registered
letters of “invitation to negotiation”. Expropriation departments
recommend that the letters be sent with a request for confirmation of
receipt. They also recommend that for resident owners the field
officers of the agency personally deliver the letters. Needless to say,
this increases the cost of land acquisition especially for linear
projects acquiring small plots of land from large numbers of
owners/users.
10.Regardless of the extent of effort, the difficulties encountered in
establishing the addresses of absentee owners are many. Often, the
friends and relatives of absentee owners provide telephone numbers.
Many of these also turn out to be incorrect; in other cases, contacting
an owner by telephone during working hours is difficult.
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11. Many owners who are said to be dead by members of a community
still appear as the only owner on the deeds.
12. Application to the local Birth Registration Offices to establish the
names and addresses of the heirs of a deceased owner also produces
additional deceased names. The determination of living heirs also
creates problems. The share of each heir cannot easily be
determined. The participation of all the heirs in negotiations cannot
always be secured. Also, the heirs fail to bring along a certification of
the inheritance to negotiation, thus further complicating and
delaying the acquisition process. To underestimate the time and
effort required to resolve the acquisition of plots with incomplete
inheritance status would be a major mistake.
13. The heirs of a small plot of land to be acquired rarely have much
motivation to complete the inheritance procedures. They are also
reluctant to pay the taxes and registration fees involved in assuming
ownership of their land. In linear projects, the expected
compensation to be received by each heir falls short of the time and
expenses required for inheritance registration. For this reason, the
heirs also refuse to attend negotiations. For the BTC project, this
could be a major concern. Failure to register inheritance usually
occurs in economically poorer but socially better integrated
communities/regions.
14.The land registry system contains large errors. This situation
surfaces at the time of the acquisition of the land and the transfer of
the title deed. To make the required deed corrections thereafter also
causes loss of time.
15.For owners whose addresses cannot be identified, the support of local
administration should be sought as per law of communication
(#7201, Tebligat Kanunu). Often, it is difficult to obtain their
cooperation and even when they cooperate, they cannot always
produce the desired results.
16.The negotiation commission does not have sufficient latitude to
operate and cannot always match the prices determined by the local
commissions during previous years.
17. For linear projects, there is every reason for the expropriation
agency to reach a negotiated solution. The cost of legal procedures to
be followed for non-negotiated situations is high and the time
requirements far exceed those specified by the Law.
18.When the expropriation agencies are forced to seek non-negotiated
solutions through the courts, they are faced with overcrowded local
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courts managed by a single judge. This delays decisions for large
numbers of small plots.
19.Because the capacity of local law institutions far exceed the lengthy
legal requirements to be met in establishing ownership and
acceptable valuation, in some regions special courts are being
established. This may be secured in anticipation of emerging
problems in some of the project affected areas.
20.The agency’s valuation commission is not invited to the courts. Thus,
they cannot present their justification and influence the Court’s
decision.
21.There is little knowledge of the changes in the Expropriation Law.
This is true even for the specialists. There is an urgent need to
disseminate the knowledge of the Law, especially among the people
so that negotiated agreements can be reached more easily.