The time limitation period for contesting a Title Deed Registration on the New Land Register following a land ownership survey under Cadaster Law 3402 does not apply to the Turkish Government enabling it to start a court case for the annullment of title deeds in Forest areas even after the statutory time limitation period for contesting title deed registrations has expired.
The Cadastral Survey for the new Register under Law 3402 identifies land ownership boundaries. According to Cadastre Law 3402 Clause 1, the Turkish Government is legally committed to eventually surveying the whole country in order to complete the Modern Land Register, as per Turkish Civil Law No 4721. This Land Ownership Cadastre Survey of Turkey, aimed at compiling a modern Land Register, has been going on since 1936 according to Law 3402 and its predecessor Law 2644 (Tapu Kanunu) and is still incomplete. Today, in as yet un-surveyed areas, all private land is still registered under old title deeds. When an area is surveyed, information in those old title deeds and on the old Register must be considered together with any other evidence of ownership in order to issue more scientifically measured and accurate modern Title Deeds or 'Tapus'. Once a survey is complete and the appeal period is passed, the new registered title deeds replace the old ones, and the old title deeds cease to be valid. The appeal period is 6 months for land without previously registered title deeds and 10 years for previously registered land.
When a Forest Survey declares private land with Registered Title Deeds to be State Forest the title deeds are usually annulled by court decision. In its defense before the European Court of Human Rights, the Turkish Government justifies the actions of its courts by claiming that the Turkish Constitution forbids the private ownership of State Forests. The Turkish Government does not respect the sanctity of Registered Title Deeds in forest areas and is not bound by the Statutory Time limitations for contesting the validity of new deeds issued as a result of a Land Ownership Cadastre Survey.
The ten year time limitation periods imposed by the current Cadastre Law 3402 does not apply to the Turkish Government but applies to everyone else.
When land has undergone a Land Ownership Survey according to the Land Ownership Cadastre Law, (currently Law 3402 see below), and a modern registered Title Deed is issued to confirm a land claim, a Forest Survey result can cause the new Title Deed to be annulled even if the Statutory time limitation period for complaints has ended. According to Cadastre Law 3402 clause 12, there is a time limitation period of 10 years following the announcement of the result of a Land Ownership Survey, after which new or renewed Title Deeds can no longer be challenged in Court. However until 25.2.2009 this time limitation period was applicable to everyone except for the Turkish Government. Therefore the Turkish Government using the Turkish Courts could and did annul Title Deeds up to even 50 years after they had been issued or renewed, confirmed and transferred to the new Land Register.
On 25.02.2009, probably as a result of pressure from the European Court of Human Rights, Law 5841 was passed. Clause 2 and 3 of this Law amends Cadastre Law 3402 Clause 12 and temporary Clause 10, see http://www.tbmm.gov.tr/kanunlar/k5841.html
This amendment decrees that the 10 year time limit for contesting the result of a Land Ownership Cadastre Survey under law 3402, which was previously applicable only to private citizens, now also applies to ALL Government bodies. This should have prevented the Turkish Government from seeking to annul Registered Title Deeds after more than 10 years had elapsed since they were issued (to replace older title deeds or land claims) by the Land Ownership Cadastre Survey. However, the Supreme Court of Appeals No.20 made an application to the Constitutional Court requesting the cancellation of Law 5841 (under file no 2009/31). In such a situation, according to Article 152/3 of the Constitution, the Court can delay applying the new law for a maximum of 5 months. If it is not cancelled by the Constitutional Court within the 5 months then the Court must apply it. By February 2010 although it was nearly a year since February 2009 when Law 5841 was passed, the Court of Appeals was still refusing to apply it, even though it had not yet been cancelled by the Constitutional Court and even though the 5 month grace period offered by the Turkish Constitution had lapsed. Old Title Deeds were still being annulled.
This can be seen in the decisions of the 20th Civil Circuit Supreme Court of Appeals no: 2010/10370-11452 K dated 29/09/2010 and in the decision no: 2010/7000-10654 K dated 15/09/2010. In these decisions the Land Ownership Cadaster Survey for the lands in question were finalized in 1956 and 1962 respectively, yet the new Deeds issued in 1956 and 1962 were annulled in 2010, 54 and 48 years later, despite the 10 year limitation period for such court cases (applicable to the Turkish Government) introduced by Law 5841 in February 2009.
On 12.5.2011 (Case no: E. 2009/31, Decision no: K. 2011/77) the Turkish Constitutional Court of Turkey decided to cancel (with immediate effect) the amendments to Cadastre Law 3402 Clause 12 and temporary Clause 10 passed by Law 5841, thereby reinstating the Turkish Government’s immunity from the 10 year time limitation period for contesting the results of a Cadaster Survey. See http://www.resmigazete.gov.tr/main.aspx?home=http://www.resmigazete.gov.tr/eskiler/2011/07/20110723.htm&main=http://www.resmigazete.gov.tr/eskiler/2011/07/20110723.htm
In paragraph 6 of its final assessment (in section V of the judgment), the Constitutional Court recalls articles 43 and 169 of the Turkish Constitution which state :
ARTICLE 43. “The coasts are under the sovereignty and disposal of the state.
In the utilisation of sea coasts, lake shores or river banks, and of the coastal strip along the sea and lakes, public interest shall be taken into consideration with priority.
The width of coasts, and coastal strips according to the purpose of utilization and the conditions of utilization by individuals shall be determined by law.”
ARTICLE 169. (2nd paragraph) “The ownership of state forests shall not be transferred to others. state forests shall be managed and exploited by the state in accordance with the law. Ownership of these forests cannot be acquired through prescription, nor shall servitude other than that in the public interest be imposed in respect of such forests.”
In paragraphs 7 and 8 of this assessment the Court sums up as follows:
“If (the ammendments to Law 3402 introduced by Law 5841) are implemented the Government will be unable to apply to the courts for the annulment of title deeds in coastal and forest areas after a survey has identified land as being private land and after the 10 year time limitation period for contesting the survey result has expired. This would lead to the finalisation of the title deeds registrations and the privately owned title deeds would become valid. This would make it possible to own land in coastal and forest areas.”
“Articles 43. and 169. of the Constitution provide for the basic protection of the environment and seek to protect the right of the public to benefit equally from the environment. These article state that coastal areas and forest areas are under the sovereignty and disposal of the state thereby forbidding the private ownership of land in these areas. For this reason it is not possible to gain ownership of land in these areas through the expiration of time limitation periods.”
Despite the above reasoning many lawyers in Turkey still argue that the annulment of Title Deeds in forest area because of Article 169 of the Turkish Constitution is illegal because Article 169 paragraph 2 (see above) is only applicable to State Forest. (see separate post on this blog entitled “The Legality of the seizure of private land within forest areas in Turkey”
Conclusion
The ECHR has already repeatedly condemned Turkey for annulling title acquired in good faith in forests or on the coastline without compensation being paid. These judgments have resulted in some compensation being awarded to the injured parties by the ECHR.
If the 10 year time limitation period were made to apply to the Turkish Government, a court case to annul deeds in forest areas would become illegal after the 10 year time limitation period had expired. The Turkish Government would then have to invoke expropriation laws and forcibly purchase the land in question in the national interest. Such an expropriation would not necessarily contravene Article 1 of Protocol No.1 of the European Convention of Human Rights provided a fair balance was preserved between the interests of the landowner and those of the general public through the payment of fair compensation.
Currently the annulment of such title deeds acquired in good faith without compensation often leads to compensation being awarded by the ECHR. Expropriation of the same land according to Turkey’s expropriation laws would legally require compensation according to Turkish Law. Either way the compensation would eventually have to be paid. However the legal procedure to obtain compensation via the the ECHR is much more lengthy and uncertain – a situation which might discourage many potential claimants especially those more ignorant of their rights or less able to afford the legal fees. Therefore the current procedure of annulling title deeds through the courts rather than expropriating them may be preferable to the Turkish Administration.
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