De facto expropriation refers to an administrative authority’s actual or legal interference with a property owner’s rights without following a lawful expropriation procedure. Although the term is not expressly defined in Turkish legislation, it is commonly described as the unlawful seizure or appropriation of privately owned immovable property without conducting an expropriation process. While Article 35 of the Constitution provides that the right of property may be restricted only by law, de facto expropriation lacks this lawful basis. The General Assembly of Civil Chambers of the Court of Cassation has also characterized such interference as an infringement that “impairs the essence of the right of property,” emphasizing that de facto expropriation has no constitutional or statutory foundation.
De facto expropriation occurs in two forms: de facto (physical) interference and de jure (legal) interference. De facto interference arises when the administration takes possession or uses the immovable property without legally transferring title to itself or to a third party. Legal interference includes administrative actions such as allocating a property to public use through zoning plans or similar regulatory measures without expropriation. Following legislative changes (Law No. 7144), Civil Courts of First Instance (Asliye Hukuk Mahkemesi) are now competent for both forms, and claims relating to de facto expropriation are heard before these courts.
As a result of de facto expropriation, the owner may claim the market value of the property as of the date of the lawsuit (together with statutory increases and default interest) and may also seek ecrimisil (compensation for unlawful occupation/use). Valuation is performed by an expert panel pursuant to Articles 11 and 12 of the Expropriation Law No. 2942. Compensation for unlawful occupation is generally calculated for the period from the date of interference until title registration or payment. Depending on the file, the action should be structured so as to cover both the compensation amount and other related losses within a single lawsuit.
In practice, the recommended steps against de facto expropriation include: promptly documenting the interference and requesting pre-trial evidence determination, first applying to the administration for amicable settlement, and—if settlement fails—filing an action before the Civil Court of First Instance within the statutory period (notably the three-month period following the end of the settlement window under the Temporary Article 6 framework). Where necessary, an annulment action may also be filed against zoning plans or similar administrative measures. Under Temporary Article 6 rules, if settlement negotiations are not concluded within six months, the owner must file suit within three months from the end of that period. De facto expropriation cases are also treated as urgent proceedings in practice.
Over the last decade, the Court of Cassation and the Constitutional Court have addressed this issue and emphasized property owners’ rights. For example, the 5th Civil Chamber of the Court of Cassation has held that each co-owner may file a separate action concerning unlawfully taken shared portions, and has recognized that ecrimisil claims may be admissible in cases of de facto interference. In the Constitutional Court’s 2019 decision in Recep Tok, de facto expropriation was identified as a serious violation of property rights contrary to Articles 13, 35, and 46 of the Constitution, and the Court stressed that the owner’s claims should be adjudicated in a manner that covers all damages.
This article addresses, in light of the relevant legislation, case law, and doctrine, the definition, elements, the de facto/legal distinction, compensation options, and litigation routes for de facto expropriation.
Legal Definition and Elements of De Facto Expropriation
There is no explicit statutory definition of de facto expropriation. In doctrine, it is generally defined as the administration’s unlawful taking of privately owned immovable property without conducting an expropriation process. Put differently, the administration may physically occupy a property without using its lawful expropriation authority, or it may prevent the owner from using the property through legal regulations. Such practices conflict with Article 35 of the Constitution, which provides that property rights may be restricted only by law and for public interest.
The General Assembly of Civil Chambers of the Court of Cassation has described de facto expropriation as an infringement affecting the essence of property rights and emphasized that it is a practice “lacking constitutional and statutory basis.” The Constitutional Court has similarly stated that such practices are incompatible with property rights safeguarded under Articles 13, 35, and 46. Therefore, where the administration disposes over an immovable property without an expropriation process, the owner has the right to seek compensation; the administration cannot create legal legitimacy for such conduct.
The commonly accepted elements in doctrine include:
- The property interfered with is subject to private ownership,
- The interference is carried out for a public interest purpose,
- The interference is committed by an administrative authority,
- The owner’s ability to exercise property rights is prevented or materially restricted.
For example, if an electricity transmission line passes over private land and renders it unusable (under the claim of public interest), the conditions for de facto expropriation may be satisfied. Likewise, if a property is allocated to public facilities in a zoning plan and is repeatedly excluded from investment programs for extended periods, the owner may argue that property rights have been violated.
The legal consequence is that the owner gains the right to claim compensation and/or file a lawsuit. A Court of Cassation unification decision has stated in substance that where property is transferred to public use without applying expropriation procedures, the owner may obtain a judgment for the property’s value as of the lawsuit date. Thus, whether the interference is physical or legal, the owner may litigate for the value of the property if they do not consent to the interference.
Differences Between De Facto (Physical) and De Jure (Legal) Interference
De facto expropriation may occur in two ways:
- De facto (physical) interference: the administration directly takes possession or uses the property (e.g., constructing a road or public facility on private land without a formal decision).
- De jure (legal) interference: the interference is realized through administrative acts (e.g., allocating land as park/road/public facility in a zoning plan; registering it as pasture/forest/wetland through regulatory acts).
Below is a structured summary:
| Feature | De Facto (Physical) Interference | De Jure (Legal) Interference |
|---|---|---|
| Definition | Physical occupation/use of the property without an expropriation decision | Allocation to public use through legal/regulatory measures |
| Example | Construction of a road or dam on private land | Allocation as park area in a zoning plan |
| Impact on Property Right | Possession is removed from the owner in practice | Use and disposition are restricted by regulation |
| Competent Court | Civil Court of First Instance (Asliye Hukuk) | Civil Court of First Instance (post-2023 practice; formerly administrative courts in certain contexts) |
| Type of Claim | Compensation for market value; ecrimisil may also be claimed | Compensation (value determination) claim |
| Evidence | Site inspection, minutes, expert review | Zoning plan documents, valuation, expert report |
| Key Case Law | Co-owners may sue separately (Court of Cassation 5th Civil Chamber) | Certain cases remain “de facto” even if physical elements later removed (Court of Cassation 5th Civil Chamber) |
| Legal Basis | Civil Code Art. 683; Expropriation Law Temporary Art. 6 (by analogy) | Expropriation Law Temporary Art. 6 (by analogy); Zoning legislation |
In physical interference, the owner is deprived of possession and must be compensated based on the value as of the lawsuit date. In legal interference, the owner remains the title holder, but usage is effectively “locked” or severely restricted. Court of Cassation case law indicates that physical interference often involves compensation and ecrimisil, whereas legal interference commonly proceeds primarily through a value compensation claim.
Compensation for De Facto Expropriation
As a result of de facto expropriation, the owner may claim pecuniary compensation. This typically consists of two principal components:
- The market value of the property as of the lawsuit date (including statutory adjustments under the expropriation framework), and
- Ecrimisil (compensation for unlawful occupation/use) together with statutory interest for the period of interference.
Valuation is carried out by an expert panel pursuant to Articles 11 and 12 of the Expropriation Law No. 2942. Land and building values are assessed through official unit prices, comparable transactions, and depreciation principles.
Common valuation components include:
- Land value: determined based on comparable sales considering use type (residential, commercial, agricultural, etc.) and location.
- Building/fixture value: calculated using unit prices and applicable principles (and, following Constitutional Court developments, reflecting current values in practice).
- Total value: land + building/fixture value.
- Interest/adjustments: statutory additions and legal interest are applied in accordance with the Expropriation Law framework and established jurisprudence.
Ecrimisil refers to compensation payable for unlawful occupation/use from the date the administration interferes with the property until payment is made. Case law recognizes that ecrimisil may be claimed alongside the principal compensation claim and is often awarded.
Evidence and proof in compensation cases may include land registry records, municipal tax values, zoning plan documentation, expert reports, and site inspection minutes. Ownership must be proven through title records (or through finalized court decisions in cases where registration is required).
Beyond pecuniary compensation, the owner may also seek compensation for other losses arising from the interference (e.g., crop loss or related damages) and, where appropriate, may also raise claims for non-pecuniary damages. The Constitutional Court has emphasized that claims should be assessed in a manner that covers all losses comprehensively and that requiring multiple separate cases may conflict with constitutional safeguards.
Litigation in De Facto Expropriation Cases
Amicable settlement (as a procedural precondition in certain cases)
Under Temporary Article 6 of Law No. 2942, for certain historical periods (09/10/1956–04/11/1983), an amicable settlement procedure is mandatory before filing suit. If no agreement is reached within the six-month settlement period—or the administration does not initiate settlement—then the owner must file suit before the Civil Court of First Instance within three months from the end of that period.
Competent court and venue
Following Law No. 7144, both physical and legal interference cases are heard by the Civil Court of First Instance, and venue lies with the court where the immovable property is located.
Subject matter and claims
The statement of claim generally seeks:
- the property’s market value as of the lawsuit date,
- statutory adjustments and interest, and
- ecrimisil where applicable.
Evidence determination and interim steps
Owners may request evidence determination (pre-trial or during proceedings) to secure site inspection and expert findings. These cases are treated as urgent in practice, and the court appoints an independent expert panel to determine value based on the property’s characteristics.
Judgment and enforcement
Upon finalization, the administration is obliged to pay the adjudicated amount. If payment is not made, enforcement proceedings may be initiated.
Practical Steps: What Can Be Done Against De Facto Expropriation?
If you suspect de facto expropriation, recommended actions include:
- Immediate documentation and evidence collection: photographs, videos, official correspondence, minutes, witness details.
- Settlement request: mandatory for certain periods; optional but often advisable in other cases to explore resolution before lengthy litigation.
- Evidence determination / site inspection: especially where intervention is ongoing or urgent.
- Filing suit within applicable deadlines: particularly the three-month filing window following the settlement period where Temporary Article 6 applies.
- Administrative annulment actions where necessary: especially in cases of legal interference arising from zoning plans or similar acts.
- Professional legal representation: due to the technical nature of procedure, deadlines, valuation strategy, and evidentiary planning.
Because de facto expropriation is unlawful by nature, it represents a serious infringement of property rights. Timely and accurate use of legal remedies is critical to preventing loss of rights.
Assessment and Conclusion
De facto expropriation occurs where the administration physically intervenes in an immovable property without a lawful expropriation process, or where it effectively “locks” usage and disposition through measures such as zoning plans. Since the interference lacks statutory basis and procedural safeguards, it constitutes a legally problematic—and often severe—violation that can eliminate the owner’s expected economic benefit from the property. In short, even if justified as public service, interfering with property “by avoiding expropriation” affects the core of property rights.
The correct legal strategy depends on whether the case involves physical or legal interference. With appropriate planning, the owner may seek compensation for market value, interest, and—where conditions exist—ecrimisil. The scope and impact must be evidenced carefully, and where necessary, evidence determination and site inspection should be pursued promptly. Because litigation route, deadlines, and claim components vary based on case-specific features, early planning substantially reduces the risk of irreparable losses.
If you suspect de facto expropriation affecting your property, a professional assessment should be obtained without delay. Misclassification (physical vs. legal), incorrect forum selection, poorly structured claims (value–interest–ecrimisil), or flawed expert strategy may create difficult-to-remedy outcomes. As Bektaş Law Office, we can rapidly assess your property’s status, structure the evidence plan, and manage the process end-to-end to ensure you claim the compensation you are entitled to effectively. For an initial legal assessment, please contact our specialized team.
