The Way to File Lawsuits Against Damage Assessment Procedures for Damaged Immovable Properties in the Earthquake Zone Has Begun
Damage assessment is a procedure that constitutes the basis for the demolition decision, the transactions regarding the right ownership and the evacuation of the buildings according to the damage status.
What is Damage Assessment?
Within the scope of Law No. 7269, it is regulated that damage assessment of buildings will be carried out first for the measures to be taken and aids to be provided in earthquake zones. Damage assessment is the process of classifying the building as undamaged, slightly damaged, moderately damaged, heavily damaged or collapsed. Damage assessment is carried out by science committees to be established by the Ministry of Environment, Urbanization and Climate Change. Damage assessment is a procedure that constitutes the basis for the demolition decision, the transactions regarding the right ownership and the evacuation of the buildings according to the damage status.
What is Entitlement?
Entitlement is the provision of housing or loans to families living in buildings that have suffered or are likely to suffer severe damage. Beneficiaries have the right to receive a construction loan from the state to be repaid or to buy one of the houses built or constructed by the state for disaster-stricken families, to be paid in installments.
The damage assessment reports, which constitute the basis for determining this entitlement and deciding on the demolition or evacuation of the building, could only be sued together with the actual transactions. However, with the decision of the Constitutional Court dated 30/11/2023 and numbered 2023/134 Esas, 2023/209 Karar and dated 30/11/2023; it was stated that the regulation on filing a lawsuit for damage assessment reports together with the main transaction violated the right to property and the right to effective application and was canceled. This decision was published in the Official Gazette dated 16.01.2024 and entered into force. Thus, the way to file a lawsuit against damage assessment procedures has been opened.
Constitutional Court Decision
Damage assessment is a procedure that constitutes the basis for the demolition decision, evacuation decision or transactions regarding entitlement, which are the procedures to be established after the issuance of damage assessment reports pursuant to the Law No. 7269 after the disaster, as well as a procedure that reveals whether the structure is damaged or not, and if it is determined that the structure is damaged, its damage status with the damage assessment report issued as a result of the damage assessment. In the event that the application for entitlement, which is one of the transactions to be established after the issuance of the damage assessment reports, results negatively, it is clear that it is possible to file an annulment lawsuit before the administrative judicial authorities against the transaction regarding the rejection of the application for entitlement and the demolition and evacuation decisions that may be taken according to the damage status of the immovable property for which a damage assessment report has been issued.
Although it can be said that whether the damage assessment reports, after which another administrative action is taken, are in compliance with the law will be discussed before the judicial authorities, not all damage assessment reports lead to a subsequent administrative action, and there may be a delay in the administration's action. It is seen that there is no judicial remedy that allows the examination of whether the damage assessment reports are in compliance with the law. Considering all these issues, it is concluded that the prevention of filing a lawsuit alone against an administrative act affecting the value of the immovable property is not compatible with the requirements of Article 40 of the Constitution.' (E.2023/134, K.2023/209, 30/11/2023)
