Public Properties
and Expropriation
A. Definition
Public properties are assets owned by the state or public legal entities (e.g., municipalities, universities) and allocated
for public use or public service. They operate under a special legal regime that restricts private ownership and
commercial transactions to ensure they serve the public interest.
B. Types of Public Property
1. Public Domain Property (Amme Malları – Kamu Malları)
Public
Properties
(Kamusal
Mallar)
•
Purpose: Directly used by the general public (e.g., roads, bridges, parks, rivers, coastlines).
•
Legal Protections:
•
Inalienable: Cannot be sold, transferred, or mortgaged.
•
Immune from seizure: Protected against debt enforcement.
•
Exempt from prescription (zamanaşımı): Cannot be acquired through long-term possession.
2. Service Properties (Hizmet Malları)
•
Purpose: Used for public services (e.g., schools, hospitals, government buildings, military facilities).
•
Access: Primarily for authorized personnel or service beneficiaries (not open to unrestricted public
use).
•
Legal Status: While still protected, some flexibility exists (e.g., leasing parts for public-private
partnerships).
3. Private Property of the Administration (Devletin Özel Malları)
•
Purpose: Owned by the state but not allocated for public use (e.g., vacant land, rental buildings,
unused state assets).
•
Legal Treatment: Governed by private law (Civil Code), meaning they can be sold, leased, or
mortgaged like private property.
•
Example: Treasury-owned apartments rented to civil servants.
Key Legal Principles Governing Public Property
•
Non-transferability (Devredilemezlik): Public domain and service properties cannot be sold or privatized.
•
Immunity from seizure (Haczedilemezlik): Creditors cannot claim these assets.
•
Public interest priority: Any use must align with societal benefit.
Core Principles
1. Inalienability (Devredilemezlik)
Legal
Characteristics
of Public
Property
•
Public properties cannot be sold, transferred, or mortgaged to private parties.
•
Ensures permanent allocation for public use.
2. Immunity from Seizure (Haczedilemezlik)
•
Creditors cannot confiscate public assets to recover debts.
•
Protects essential public infrastructure (e.g., hospitals, roads).
3. Exemption from Prescription (Zamanaşımına Uğramaz)
•
Private parties cannot gain ownership through long-term possession (adverse possession).
•
Example: Squatters cannot claim public land.
4. Public Interest Priority (Kamu Yararı)
•
Usage must benefit society, not private interests.
•
Any change in function requires legal justification.
Legal Basis
•
Constitution (Articles 43 & 46): Defines state authority over public assets.
•
Civil Code (Medeni Kanun): Regulates property rights with exceptions for public goods.
•
Public Financial Management Law (No. 5018): Governs administration of state assets.
•
Municipal Laws: Local regulations on public space usage (e.g., parks, roads).
Exceptions & Limitations
•
Private Property of the Administration (Devletin Özel Malları) follows Civil Code rules (can be
sold/leased).
•
Urgent Public Needs: Temporary seizure allowed (e.g., disaster response).
Key Distinctions in Public Property Regimes
1. Ownership (Mülkiyet) vs.
Sovereign Control (Hüküm
ve Tasarruf)
2. Allocation (Tahsis) vs.
Ownership
3. Key Examples
4. Practical Implications
Ownership (Mülkiyet):
Tahsis (Allocation):
Kıyılar (Coastlines – Art. 43):
•The state holds full legal title over
assets (e.g., government buildings,
public land).
•Governed by property laws, but with
public-use restrictions.
Sovereign Control (Hüküm ve
Tasarruf):
•A designation for public use (e.g., a
park, road, or school).
•Does not change ownership but
restricts usage.
•Example: A state-owned building
allocated as a hospital cannot be
sold.
•Public domain – no private
ownership allowed.
•Usage restricted (e.g., no private
construction on shores).
Tabii Servet (Natural Resources –
Art. 168):
Private landowners may hold title but
cannot override public control (e.g.,
mining bans on private land).
•The state has exclusive regulatory
authority, even if not the legal owner.
•Applies to natural
resources (forests, minerals, water)
– private ownership
is prohibited (Constitution Art. 168).
•Example: A private landowner cannot
claim mineral rights; the state
controls extraction.
•State-controlled (petroleum,
minerals, geothermal energy).
•Managed under special laws (e.g.,
Petroleum Law No. 6491).
Ormanlar (Forests):
•Cannot be privatized (Constitution
Art. 169).
•Even if privately owned before
classification, they become statecontrolled.
Compensation rules differ:
•If the state expropriates owned
land, full payment is required.
•If it exercises sovereign control,
compensation may be limited (e.g.,
restricted usage rights).
Expropriation (Kamulaştırma)
Definition
Legal Framework
•Expropriation is the state's
power to compulsorily
acquire private
property for public benefit
projects (e.g.,
infrastructure, urban
renewal), provided that fair
and prior compensation is
paid to the owner.
•Constitution (Article 46)
•Mandates that
expropriation can only
occur for public interest.
•Requires full
compensation paid in
advance (or deposited in
court).
•Guarantees the right
to judicial appeal.
•Expropriation Law (No.
2942)
•Defines procedures,
valuation methods, and
appeals.
•Establishes expert
committees for fair price
assessment.
Conditions for Valid
Expropriation
•Public Benefit Justification
•Must be officially
documented (e.g., for
roads, hospitals, utilities).
•Cannot be used for
arbitrary state or private
interests.
•Fair and Immediate
Compensation
•Based on current market
value (including potential
damages).
•Must be
paid before property
transfer (or deposited in
court).
•Due Process & Judicial
Oversight
•Owners can challenge the
decision in administrative
courts.
•Compensation disputes go
to civil courts.
Expropriation Procedure
Exceptions & Special Cases
•Expropriation Decision
•Issued by a competent
authority (e.g., ministry,
municipality).
•Valuation Process
•Conducted
by independent
experts (considering land
value, improvements,
etc.).
•Negotiation with Owner
•The state must first
attempt an
agreement before forced
acquisition.
•Court Involvement (if
needed)
•If no agreement, the state
files a compulsory
expropriation case.
•Court determines final
compensation.
•Transfer of Ownership
•Once compensation is
paid, the property
is registered to the state.
•Urgent Expropriation
(Acele Kamulaştırma):
•Immediate seizure allowed
in emergencies (war,
natural disasters).
•Compensation is
settled afterward (risk of
abuse).
•Confiscation Without
Expropriation
(Kamulaştırmasız El
Atma):
•Illegal occupation by
authorities → Owner
can sue for
compensation.
Key Protections for
Property Owners
•Right to challenge public
benefit claims.
•Right to fair market
compensation.
•Right to judicial review at
every stage.
Contemporary Issues in Public Property and
Expropriation
1. Urban Renewal
& Gentrification
•Large-scale urban transformation projects often rely on expropriation powers
•Risks include:
•Displacement of low-income residents
•Loss of historical neighborhoods
•Speculative price increases in renewed areas
•Example: Sulukule renewal in Istanbul displaced Romani communities
2. Compensation
Disputes
•Frequent conflicts arise from:
•Undervaluation of properties by government assessors
•Delays in payment despite legal requirements
•Disagreements over "market value" calculations
•Cases often end up in prolonged court battles
3. Abuse of Urgent
Expropriation
•Growing concerns about:
•Expanded use of emergency powers for non-emergencies
•Bypassing normal procedures and oversight
•Favoring private developers under guise of public interest
•Recent constitutional amendments have raised safeguards