INTRODUCTION
The Turkish Civil Code No. 4721 ("TCC") aims to protect and regulate property rights. Property rights are fundamental to the economic and social structure of individuals and communities, and they are protected by the Constitution of the Republic of Turkey No. 2709. However, property rights are not absolute and are balanced by certain circumstances involving rights and interests. Among the servitudes regulated in the TCC, rights of way serve as one of the tools to balance property rights. In essence, the right of way refers to a property owner's ability to access their own property by passing through another property.
Rights of way are regulated under Articles 747 and 748 of the TCC, with Article 747 addressing the compulsory right of way that arises from the necessity for a property to be connected to a main road. According to Article 748 of the TCC, other rights of way include temporary rights to access a neighboring property for the purpose of operating, improving, or constructing on the property.
This article will focus on the compulsory right of way, addressing its concept, legal framework, scope, conditions, and right of way lawsuits.
This article will focus on the compulsory right of way, addressing its concept, legal framework, scope, conditions, and right of way lawsuits.
A. THE CONCEPT OF FORCED RIGHT OF WAY AND ITS LEGAL NATURE
The right of way is regulated under the section "Restrictions on Immovable Property Ownership" within the second division of the TCC titled "Content and Restrictions of Immovable Property Ownership," under the subsection "Neighbour Rights." Article 747 of the TCC defines the right of way as a property owner's right to request a passage through one or more neighbouring properties for a fee if their property lacks sufficient access to a road. The article emphasizes that the compulsory right of way should be determined by considering the interests of both parties.
Since the TCC imposes an obligation on the neighbouring property owner to comply with a right of way request, the establishment of this right is derived from the law. It is important to note that the establishment of this right is subject to a request and does not arise automatically by law. The request for a compulsory right of way is considered a constitutive right. Upon exercising this right, the neighbouring property owner becomes obligated to establish a servitude of passage. The right can be established either through an agreement with the neighbouring property owner or through a court decision upon the request of the right holder.
Furthermore, the compulsory right of way is an easement right attached to property ownership, established in favor of one property against another, and is referred to as a land easement. Additionally, since the right of way is a right attached to the property, the properties for which the right of way is established must be registered in the land registry.
B. CONDITIONS FOR COMPULSORY RIGHT OF WAY
According to Article 747 of the TCC, one of the conditions for a compulsory right of way is that the right must be directed towards a neighbouring property. The compulsory right of way applies only to neighbouring properties, and in this context, the term "neighbour" should not be interpreted narrowly. It may be necessary to use multiple neighbouring properties for access to a road. Additionally, the right must be exercised against the neighbour most suitable for providing access based on ownership and road conditions, and subsequently, against the one who would suffer the least harm.
Another condition is the necessity of road access. The compulsory right of way aims to eliminate the impediment to a property owner's access to a main road. Therefore, the compulsory right of way cannot be used to provide access to a private street or to connect two properties owned by the same owner.
Additionally, the compulsory right of way can only be requested if the passage is essential. Essentially, the compulsory right of way can only be requested if there is no access to one of the main roads or if the existing access is obstructed in any way. Moreover, the necessity must be present at the time of the request.
Furthermore, if the use of the property changes due to reasons other than the property owner's personal preferences, the right of way may be requested due to the change in circumstances. The criterion to be considered is whether the change is due to the property owner's personal desires and reasons. Otherwise, a request for a right of way cannot be made.
Lastly, it should be noted that a property owner who has lost access to a main road due to their own actions cannot request a compulsory right of way as this would be contrary to Article 2 of the TCC.
C. RIGHT OF WAY LAWSUIT
As mentioned above, the compulsory right of way can be established through an agreement with the neighbouring property owner or through a court decision upon the request of the right holder. In other words, if the request for a right of way is not accepted by the neighbouring property owner, the property owner can file a lawsuit to establish a servitude of passage.
This request must be made by the property owner themselves. In this case, the plaintiff will be the owner of the property for which the right of way is sought. The defendant will be the owner or owners of the property or properties from which the compulsory right of way is requested.
As explained in the previous section, only a property owner who must necessarily pass through a neighbouring property to access a main road can file this lawsuit, and the lawsuit can only be filed if an agreement cannot be reached with the neighbouring property owners. Additionally, the property must be registered and subject to private ownership.
The court will thoroughly examine whether the property owner requesting the compulsory right of way truly needs the passage and whether there is another possible access to the property. If the court concludes that the compulsory right of way should be established, it will determine the right in a way that causes the least damage to the neighbouring property owner and will order full compensation for the damages to the neighbouring property owner.
Moreover, Article 2 of the Code of Civil Procedure No. 6100 ("CCP") regulates the jurisdiction of civil courts, stating that civil courts of first instance are competent to hear cases related to property rights regardless of the value or amount of the claim. Given that Article 747/1 of the TCC allows for the request of a right of way "in exchange for full compensation," it is clear that the subject of this lawsuit pertains to property rights, and the civil courts of first instance are competent. Article 12/2 of the CCP, titled "Jurisdiction in cases concerning property rights" states that "lawsuits concerning easement rights shall be filed in the court where the property subject to the easement right is located," thus establishing a mandatory jurisdiction rule for the location of the property.
The compulsory right of way is a necessary right for a property owner's access to their property and can be requested as the property's situation and needs change, thus there is no statute of limitations or preclusion period for a right of way lawsuit.
Finally, it should be noted that, according to established jurisprudence of the Court of Cassation, the litigation costs in compulsory right of way lawsuits are borne by the plaintiff.
D. CONCLUSION
In conclusion, the compulsory right of way holds a significant place among the restrictions on property rights regulated in the TCC. Property owners can request a right of way over neighbouring properties to access a main road if the necessary conditions are met. This right can arise through an agreement or, in the absence of an agreement, through litigation. This right plays a critical role in ensuring the fundamental purpose of property ownership, which is to benefit from and use the property. The conditions for establishing a compulsory right of way and the lawsuit process aim to meet the property owner's access needs while protecting the rights of neighbouring property owners. The court, in the course of litigation, evaluates the necessity of the right of way and the availability of alternative routes, balancing the interests of both parties.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.