Compulsory Right of Passage Lawsuit

In order to benefit from their immovable properties based on the right of ownership, owners must have access to their properties. If the immovable property does not have a connection to the general road (a road used by everyone within ordinary measures), the owner of the property will inevitably suffer a loss of rights due to the inability to utilize the property in accordance with their economic purpose. Lawsuits related to the right of passage regulated in Articles 747 and onwards of the Turkish Civil Code are filed in our country due to the lack of a healthy structure in land planning and the failure to address the road needs of each property. The regulations made during the cadastral surveys in our country have not been adapted to the current needs and usage patterns, making lawsuits related to the right of passage highly important. [1]

An owner of immovable property can request an appropriate passage from neighboring property owners to ensure access to their property. When this access is requested from the court, the determination of the passage route should prioritize the interests of both parties. The right of passage is rooted in neighborly relations. When determining the route, the principles of neighborly relations must be observed by the court. [2] Neighborly relations encompass the legal rules regulating the rights and obligations of neighboring property owners towards each other.

The right of passage is regulated in Article 747 of the Turkish Civil Code under the third section titled "Neighbor's Right":

Article 747 - If the owner does not have sufficient passage to the general road from their property, they can request a right of passage from their neighbors in exchange for a full payment.

This right is first exercised against the neighbor who is most suitable based on previous ownership and road conditions, and then against the one who will suffer the least harm from it.

The compulsory passage is determined taking into account the interests of both parties.

1. Legal Characteristics

The right of compulsory passage, being a real right attached to the property that limits the ownership right by law, can be claimed by the new owner of the property for which the right of passage is established against the new owner of the property against which the right of passage is established. The right of compulsory passage is also a creating right, giving its holder the authority to establish, modify, and terminate a legal relationship through a unilateral legal action.

The right of passage is contingent upon the necessity of the property requiring passage, and the owner of the property against which the passage is claimed assumes an easement obligation. Thus, it is possible to speak of an easement when the owner's ownership right is restricted, and once the said obligation is fulfilled, an easement is established. [3]

2.Competent Court and Jurisdiction

According to Article 2 of Law No. 6100 on Civil Procedure, regardless of the subject matter of the case and the value or amount in dispute, the competent court for lawsuits related to property rights is the Court of First Instance. As the right of compulsory passage can be claimed in exchange for a full payment according to Article 747 of the Turkish Civil Code, the Court of First Instance is competent for such cases under Article 2 of the Civil Procedure Law.

The jurisdictional court, on the other hand, should be the local court where the property against which the right of passage will be established is located, as per the second paragraph of Article 12 of the Civil Procedure Law. If there are multiple properties, according to the third paragraph of the same article, the lawsuit can be filed in one of the courts located where the properties are situated.

3. Parties to the Lawsuit

The plaintiff is the owner of the property for which the right of passage is sought to be established. The defendant, on the other hand, is the owner of the property against which the right of passage will be established, and who will be subject to the easement obligation.

In a compulsory passage lawsuit, since this right will be established for or against specific properties, all owners of the properties for and against which the right of passage is sought must be parties to the lawsuit. However, if the property for which the right of passage is sought pertains to shared ownership, the lawsuit can be filed by one or several co-owners. [4] Additionally, individuals who have a legal interest in the outcome of the lawsuit regarding the property for and against which the right of passage is sought may also intervene in the case.

4. Conditions of the Lawsuit

According to Article 747/2 of the Turkish Civil Code, the request for a right of passage should first be directed towards the neighbor who is most suitable based on previous ownership and road conditions. If the need cannot be met in this way, the request should be directed towards the one who will suffer the least harm from the establishment of the passage. Consequently, the passage should not be demanded from another neighbor if it can be established through these criteria.

A crucial aspect emphasized in decisions by the Court of Cassation is how the appropriate route should be determined. It is important to note that when determining the suitable route, the preservation of the integrity and usage patterns of the property or properties against which the passage is established should be taken into account. In practice, it is observed that a compulsory right of passage is established by the court not for the use of a specific private road but for passing through a road designated for common use by the public and used by everyone within ordinary measures (such as a cadastral road).

The reason for the need for a passage and how this need will be met, instead of being based on the subjective desires of the plaintiff, should be determined in accordance with objective principles, considering the nature of the property. The principle of balancing sacrifices in limiting property ownership should be observed. According to this principle, the owner of the property for which the right of passage is established is obligated to compensate the owner of the property against which the right of passage is established for the harm they will suffer, up to the amount determined by the court. This compensation is considered the balancing fee.

The amount to be paid to the owner of the property against which the right of passage is established, due to the passage determined by the court, should be determined through objective criteria, taking into account the nature of the property, with the assistance of expert witnesses. The balancing fee determined by the court is deposited before the court's judgment. In cases where significant changes in the value of the property occur during the period between determining this fee and the conclusion of the lawsuit, it is another crucial point emphasized by the Court of Cassation that a new valuation close to the date of the judgment should be made. This ensures that the property owner whose property rights are restricted is not unfairly affected and prevents possible behaviors from the other party that might constitute an abuse of the right. [5]

Registration of the Right of Passage in the Land Registry

Upon the finalization of the court decision establishing the right of passage in favor of the plaintiff at an appropriate location, the plaintiff, in whose favor the right of passage has been established, can request the registration of this right in the land registry.

5. Conclusion

In our country, due to the lack of proper and up-to-date land planning, disputes can arise among neighboring property owners regarding the establishment of the right of passage. When a property owner requests the establishment of the right of passage in their favor according to Article 747 of the Turkish Civil Code, the court should objectively determine the reason for the passage requirement, in line with established principles. Following this, in accordance with the principle of balancing sacrifices, an appropriate compensation amount should be determined to compensate the property owner against whom the right of passage will be established for the sacrifice they make. In compulsory right of passage cases rooted in neighborly relations, the nature of the specific property and the reason for the requirement should be evaluated by the court based on examinations conducted by expert witnesses, considering the interests of the parties involved.

İlke Sıvacı

References

1. TACIN, Mustafa Hayri. "Uygulama Bakımından Zorunlu Geçit Hakkı Davası." TAAD, Year: 7, Number: 28, October, 2016, pp. 389-411.
2. Decision of the 14th Civil Chamber of the Court of Cassation, Case No: 2004/6545, Decision No: 2004/6161, Date: 24.9.2004.
3. OĞUZMAN, M. Kemal, SELİÇİ, Özer, OKTAY-ÖZDEMİR, Saibe. Eşya Hukuku, Filiz Kitabevi, 1st Edition, October, 2018, Istanbul, pp. 319-321.
4. Decision of the 14th Civil Chamber of the Court of Cassation, Case No: 2012/8241, Decision No: 2012/10015, Date: 12.9.2012.
5. Decision of the 14th Civil Chamber of the Court of Cassation, Case No: 2012/12800, Decision No: 2012/14477, Date: 17.12.2012.