Compensation of Earthquake Damages from the Relevant Persons under Private Law

GENERAL EXPLANATIONS

While some of the damages caused by the earthquake are compensated within the scope of the compulsory earthquake insurance, other damages that are not covered by this insurance must be compensated by the contractor, building contractors (civil engineer, architect), landlord, building inspection institution and municipality. The indemnification responsibility of the administration, including the municipality, is beyond the scope of this article. The liability of the administration is analyzed in another article. This is because the scope of compulsory earthquake insurance is essentially limited to the damages incurred to the insured immovable property, and there may be many other damages other than these. In particular, all bodily damages including death, moral damages, debris removal costs, loss of profit, business stoppage, rent deprivation, alternative residence and workplace costs, all kinds of movable property, goods and similar damages are outside the scope of Compulsory Earthquake Insurance. 

In order to cover these damages, the contractor, civil engineer and architects who constructed the immovable property may be held liable due to the construction of a building in violation of the legislation in force. (23rd Civil Chamber of the Court of Cassation, E. 2017/2640, K. 2020/2367, T. 30.6.2020) The source of liability may vary according to the concrete event and various possibilities. There are two types of liability. The first one is tort liability, and the second one is the liability arising from the delivery of defective goods under the contract of work. It should be noted that in practice, damages are generally compensated due to tort liability.

LIABILITY IN TORT

A tort is to cause damage to the property or personal assets of another person through a defective and unlawful behavior. This liability arises in the absence of a contractual relationship. For example, if the contractor completed the building in violation of the earthquake legislation and transferred it to person A, person A transferred it to person B, and the earthquake occurred while the building was in the ownership of person B, in this case, since there is no contract between person B and the contractor, tort liability will be in question. Or, in the given example, if person A rents the building to person B, in this case, tort liability will also be in question. In order to be able to talk about this liability, it is not necessary to be the owner of the building, but only to have suffered damage due to the building built in violation of the legislation. Necessary conditions for the emergence of tort liability;

Fault

The earthquake regulations in force at the time the building was constructed are important in terms of defect. What is expected from the contractor or building contractor is to construct the building in accordance with the earthquake legislation in force at the time of construction. The precedent decision is as follows;

"The evaluations in the expert report taken as basis for the judgment by the Local Court were made according to the Earthquake Regulation dated 2007. Since the 1975 Earthquake Regulation was in force at the time, the contractor cannot be expected to know and foresee the developments that occurred after the construction and delivery of the building constructed within the framework of the provisions of this regulation, it is clear that the adverse provisions that came into force later and increased the responsibilities of the contractor cannot be applied to the contractors. Therefore, the contractor's responsibility and duty of care should be evaluated according to the provisions of the Earthquake Regulation of 1975, which was in force at the time of the construction and delivery of the building" (Court of Cassation General Assembly of Civil Chambers E. 2017/15-254, K. 2020/6, T. 14.1.2020)

In terms of liability, there is joint and several liability. This means that the contractor of the building and the project author will be responsible for the entire damage, regardless of their fault rates in the occurrence of the damage.  For example, although the contractor is 50% at fault, the injured party may claim the entire damage from the contractor, and if the contractor has compensated the entire damage, the right of recourse to other persons who are at fault in the occurrence of the damage is reserved. The precedent decision on this issue is as follows;

"The plaintiff stated that his immovable property, which was built by the defendants in violation of the rules of science and art and earthquake regulations, was severely damaged in the earthquake that occurred on 17/08/1999 and demanded the collection of the material damage from the defendants jointly and severally.(...) In the expert report on fault, which is within the scope of the file and taken as a basis for the court's judgment, it is stated that the building owner defendant M. G. and accordingly his heirs, the other defendant İ.B., who is in charge of the building, is 50% at fault and the non-suit contractors M.B.T. and H. O. are 25% at fault. In Articles 50 and 51 of the Code of Obligations, it is regulated that in the event that the wrongful act and the resulting damage is caused by more than one person, the injured party has the right to request that one, several or all of the participants in the act be held responsible in a chain if he wishes. The same provision is repeated in Article 61 of the new Turkish Code of Obligations numbered 6098. In this case, since it is understood that the plaintiff relies on joint and several liability in the lawsuit petition and it is accepted that the non-suit contractors M. B. T. and H. O. are also at fault in the incident, the defendant İ. B. should be held liable for the entire damage, not in proportion to its fault, in accordance with the principles of joint and several liability regulated in Articles 50 and 51 of the Code of Obligations." (Fourth Civil Chamber of the Court of Cassation Esas: 2012/13718, Decision: 2013/12101, Date: 24.06.2013)

Harm

The structure must have been damaged due to the fact that it was built in violation of the earthquake legislation. Being the owner of the building is not important here. In case of damage due to the building where the tenant lives as a tenant, compensation for these damages can be requested. Court of Cassation precedent decision;

"In the concrete case, the dispute is about the claim for compensation for the plaintiff, who stated that he was a tenant in the immovable property owned by the defendant, claiming that he lost all his materials and suffered heavy damages due to the complete collapse of the building in the ... earthquake that occurred in 2011. It is understood from the scope of the file that the plaintiff has a textile store in the main immovable property, which is a 3-storey shop, and the building was completely destroyed during the earthquake. It is not mentioned that the basis of the dispute arises from the lease relationship. In this case, the dispute must be resolved in the Civil Court of First Instance within the framework of the general provisions regulated in the Code of Obligations." (Seventeenth Civil Chamber of the Court of Cassation Esas: 2014/4325, Decision: 2014/7736, Date: 15.05.2014)

Link of Causation

The cause of the damage must be the structure that is not resistant to earthquake. In such a case, the claim that the earthquake severed the causal link is not accepted, but if the earthquake is very severe, equitable relief may be possible. The precedent Court of Cassation decision is as follows;

"The plaintiff's damage arose as a result of the collapse of the building in which he resided due to the earthquake and his being trapped under the debris. Although it cannot be accepted that the earthquake is considered as a force majeure and cuts the causal link with the damage, it must also be accepted that it is the biggest natural disaster that affects everyone in the region, which is unpredictable when and at what magnitude it will occur and causes a great destruction when the result occurs. Furthermore, the fact that the region is located in the first degree earthquake zone and the magnitude of the earthquake should not be overlooked. In that case, it is also necessary for the court to make an equitable deduction from the amount of pecuniary and non-pecuniary damages in accordance with justice. The fact that no evaluation was made in this regard was not deemed correct, and the judgment had to be reversed for the reasons explained." (Seventeenth Civil Chamber of the Court of Cassation Esas: 2014/4325, Decision: 2014/7736, Date: 15.05.2014)

LIABILITY UNDER THE CONTRACT OF WORK

This liability is a type of contractual liability that arises within the scope of the contract concluded between the owner and the contractor, i.e. the land owner and the contractor. The contractor, who is the contractor party within the scope of the work contract, has the obligation to create the structure, that is, the work, in accordance with the earthquake legislation in force. For this reason, contractors may be liable for all damages that may occur due to reasons such as problems in the connection of columns and beams, missing stirrups, poor concrete quality, use of unwashed sea sand, excessively short columns or cheap workmanship. In the event that the contractor delivers the building, which was built by ignoring the earthquake legislation, to the owner with one of the issues listed by way of example or a similar situation after completion, defective goods delivery will be in question and the fault of the contractor will come to the fore. The precedent decision is as follows;

"In the report obtained as a result of the examination conducted by the Chamber of Civil Engineers upon the request of the defendant, it was stated that according to the size of the walls and beams on the roof floor, "danger may arise in Herde", the low poured concrete on the stairs can only be used by some crushing, the septic tank side walls are made of puddles instead of curtains, and the column thicknesses are not in accordance with the earthquake regulations.(...) Even if it is not included in the contract, it is obligatory to carry out the work in accordance with the zoning legislation, science and technical rules. This issue is of public order and is one of the issues to be directly observed by the court. In the concrete case, the fact that the work was not carried out in accordance with the aforementioned rules is fixed with the suspension decision issued by the Authority and the opinions of the scientific experts taken at various stages and is also accepted by the court. Compliance with the provisions of the contract is in accordance with the rule of "fidelity to the covenant", which is a fundamental principle in law. In a work contract, the contractor is obliged to perform the work undertaken with loyalty and diligence in accordance with the trust placed in him, and to avoid any behavior that may harm the owner of the work. The duty of care is a consequence of the duty of loyalty. The contractor is at fault for grossly neglecting his duty of loyalty and diligence by making a project that is not in accordance with the contract and doing work contrary to this project, and for shaking the trust of the plaintiff to the root, as well as for not complying with the zoning rules regarding public order, regardless of any other reason." (Fifteenth Civil Chamber of the Court of Cassation Esas: 1998/4289, Decision: 1999/115, Date: 25.01.1999)

Since the defect here is not a defect that can be understood at first glance with the naked eye, there will be a hidden defect. If the hidden defect in the building is discovered during the earthquake, the landowner must immediately notify the contractor. As a result of the notification, the landowner shall have certain optional rights.

These rights are listed in Article 475 of the TCO. According to the aforementioned provision, the optional rights of the landowner are as follows

1. Requesting the elimination of the defect; If the defect arising after the earthquake is of a nature that can be eliminated (such as cracking of the wall), it will be able to request the contractor to eliminate this defect. However, if the elimination of the defect requires an excessive expense (such as reconstruction of the building), then the landowners will not have the right to demand the elimination of the defect. 

2. Refund of the price: This right is in the form of refunding a certain percentage of the price paid to the contractor due to the defect. For example, a landowner who has one of his flats rendered unusable may demand the refund of the price of this flat 

3. Rescission of the contract: If the earthquake has caused a substantial defect in the contractor's work, the landowner may request rescission of the contract. In the event that the entire building collapses, the landowner will be entitled to a refund of the price paid (or the land share given) if the fault is entirely the fault of the contractor, and may even demand that the excavation on the land be cleaned.

4. Right to Compensation: The use of the above-mentioned rights alone will not be able to cover all damages, especially considering the destructive effect of the earthquake. Because there will be many damages such as temporary and permanent incapacity for work, loss of profit, moral damage caused by the earthquake. In addition to the rights mentioned above, individuals will also have the right to claim compensation according to the general provisions of the Code of Obligations.

STATUTE OF LIMITATIONS

It is important to note that the Court of Cassation considers the statute of limitations as of the date of the earthquake.

"Although the building subject to the lawsuit was completed and delivered in 1978 and the relationship between the building and the defendant was legally severed as of that date, the wrongful act of the defendant should be deemed to have occurred on 17.8.1999, when the damage alleged to have occurred as a result of it occurred (the earthquake occurred as the event that caused the damage to occur). Therefore, this date should be taken as a basis for the commencement of the one-year and 10-year statute of limitations under Article 60 of the Law of Civil Procedure. The practice of the Court of Cassation on this issue is also in the direction that the date of learning of the damage, therefore, the date of the earthquake in which the damage occurred, should be taken as the beginning of the statute of limitations in cases regarding compensation for damages caused by the earthquake. As a matter of fact, it is also emphasized in the decisions of the General Assembly of Civil Chambers dated 04.06.2003 and numbered 2003/4-400 E. 2003/393 K.; dated 22.10.2003 and numbered 2003/4-603 E. 2003/594 K.; dated 03.12.2003 and numbered 2003/4-658 E. 2003/727 K."( HGK., E. 2010/111 K. 2010/137 T. 10.03.2010).

In terms of the exercise of the rights arising under the work contract, the statute of limitations is taken into consideration from the date the damage occurred. A precedent decision is as follows;

"In the delivery of the work, the owner of the work is obliged to inspect the work as soon as he has the opportunity according to the usual course of the work and to notify the contractor if there are defects. Subsequent hidden defects must be notified to the owner of the work from the date of their occurrence (Articles 359, 362 of the Code of Obligations). In the case in question, the work was delivered. Although some simple repairs were made by the plaintiff for the damages that occurred after the earthquake, the hidden defective manufacturing related to the essence of the damage was revealed as a result of the test made during the inspection report and the report received. Considering the nature of the defective manufacturing and the time that will elapse for the inspection on how to remedy the defect, it should be accepted that the notice of defect dated 18.11.2004 sent to the defendant was in due time. Pursuant to Article 126/4 of the Code of Obligations, the statute of limitations of 10 years must be applied to the lawsuits to be filed due to the fact that the contractor has not fulfilled the contract at all or as required by intent or gross negligence, and in particular has used defective materials or has produced a defective work. In this case, the court should accept that the notice of defect was made on time, go into the merits of the matter and decide on the result to be formed. It was not correct to establish a judgment without considering these issues, and it was deemed appropriate to revoke the decision."

DETERMINATION OF THE COMPETENT COURT

1. The civil court of first instance has jurisdiction in the lawsuit filed by the tenant against the contractor, the owner of the building, for the compensation of the damages incurred due to the earthquake.

"In the concrete case; the plaintiff's attorney stated that the defendant, who was the contractor of the building and rented the workplace to his client, did not build a building in accordance with the standards and earthquake regulations, the defendant did not carry out commercial activities in a building that did not comply with the standards and did not take the necessary safety precautions, and that he suffered material and moral damages as a result of his negligent behavior by renting such a workplace to his client and the collapse of the immovable property rented by the client from the defendant due to the earthquake that occurred in the district and demanded compensation. Within the scope of the file, it is understood that the dispute does not arise from the lease relationship, but arises from the tortious act, and it should be seen in the civil court of first instance." (Twentieth Civil Chamber of the Court of Cassation Esas: 2017/8632, Decision: 2017/7140, Date: 02.10.2017)

2. In the lawsuit filed by the tenant against the landlord, who is not the contractor of the building, for the compensation of the damages incurred due to the earthquake, the civil court of peace has jurisdiction.

"In the concrete case, the plaintiff claimed that the apartment he rented from the defendants collapsed in the earthquake and all his household goods were destroyed under the debris, and that the landlords did not take earthquake safety measures and did not build the house accordingly, and demanded compensation for the damage he suffered due to the loss of his household goods under the debris, and since the dispute between the plaintiff and the defendants arises from the lease agreement, the dispute should be seen and concluded in the Civil Court of Peace." (Seventeenth Civil Chamber of the Court of Cassation Esas: 2014/12808, Decision: 2014/15383, Date: 07.11.2014)

3. The consumer court has jurisdiction in the lawsuit filed against the contractor for the compensation of the damages incurred due to the earthquake in the apartments purchased from the contractor.

"The lawsuit is related to the claim for the collection of the compensation receivable arising from the construction of the immovables purchased from the contractor in violation of the earthquake regulations, and it is understood that the dispute between the parties falls within the scope of the Law No. 4077 on the Protection of Consumers amended by Law No. 4822. Article 23 of the Consumer Protection Law stipulates that all kinds of disputes related to the implementation of this law will be dealt with by the Consumer Courts. Since the dispute between the parties falls within the scope of the Law on the Protection of Consumers, the Consumer Court is authorized to hear the case."(Court of Cassation Decision - 13th HD, E. 2013/30476 K. 2014/5953 T. 4.3.2014)

4. In the event that the building taken over from a non-contractor building owner is damaged due to an earthquake, the civil court of first instance is authorized in the lawsuit to be filed against the transferor owner for compensation of the damage.

5. In the event of damage caused by an earthquake in a shopping mall, the consumer court has jurisdiction in the lawsuit to be filed against the shop owner for compensation of the damage.

"The plaintiffs claimed that ..., the joint children of ... and ... and the brother of the other plaintiffs, died on 23/10/2011 during the earthquake that occurred in ... district on 23/10/2011 by being trapped under the rubble in Kışla Mahallesi Sönmezler Street Old Sempaş Shopping Mall Building ... store, that the defendant was responsible for this incident, and that the defendant was responsible for this incident, and for these reasons, the collection of 15. 000 TL pecuniary compensation and 500. 000,00 TL non-pecuniary compensation with legal interest to be accrued from 25/10/2011.(...) The court decided to dismiss the lawsuit on the grounds that the defendant . ... is a tenant in the building, there is no causal link with the damage caused by its tenancy, therefore there is no fault, and the judgment was appealed by the plaintiff's attorney.(....) In order for a legal transaction to be accepted to be within the scope of Law No. 4077, there must be a legal transaction regarding the sale of goods and services between the parties defined above within the purpose of the law. In the examination of the concrete dispute, since it is understood that Aysun, the support of the plaintiffs, went to the store operated by the defendant as a customer, died under the rubble due to the earthquake, and there is a consumer relationship between the deceased and the defendant, the dispute must be resolved within the framework of Law No. 4077. Article 23 of the Law No. 4077 stipulates that all kinds of disputes related to the implementation of this law shall be heard by the consumer courts. The regulations regarding the duty are related to public order and are observed ex officio at every stage of the proceedings even if the parties do not assert them. In this case, while the court should decide to reject the lawsuit petition on the grounds that the consumer court has jurisdiction in the resolution of the dispute, it is contrary to the procedure and the law to have established a written judgment by examining the merits of the matter and requires reversal." (Third Civil Chamber of the Court of Cassation Esas: 2018/4791, Decision: 2019/1518, Date: 25.02.2019)

Note: This article was co-authored by Yalçın TORUN, Lawyer and Mediator and Meryem KILIÇ, Lawyer.