When a person is in possession of a real property (which refers to individuals or legal entities who physically possess the real property to derive some benefit or interest from it), and any encroachment or interference occurs by third parties, the individuals in possession of the property can prevent the unjust attacks on the property more swiftly by applying to administrative authorities under the Law on Preventing Encroachments on Real Property Possession No. 3091, dated December 4, 1984, without resorting to court proceedings. The purpose of Law No. 3091 is to ensure the security of possession and public order concerning real properties possessed by real or legal persons, public administrations, institutions, or organizations, or properties owned or under the sovereignty of the State, which are subject to the real property law of the public, by preventing encroachments or interferences by third parties through administrative authorities (Article 1 of Law No. 3091). The decisions to be made under Law No. 3091 are not conclusive in terms of property rights but rather constitute administrative measures. The law aims to protect possession based on actual control and possession of real property.
1) Cases Considered as Encroachment or Interference with Real Property
The Regulation on the Implementation and Principles of the Law on Preventing Encroachments on Real Property Possession provides separate explanations for the concepts of encroachment and interference. According to this regulation, encroachment refers to forcibly occupying or seizing the real property without the knowledge of the possessor, or making changes in the nature of the real property, while interference means partially or entirely violating the absolute control of the possessor over the real property. The Regulation also identifies actions that may be considered as encroachment or interference with real property under Article 12 of Law No. 3091. These cases include:
- a) Preventing the possessor from benefiting from the real property, such as passing through agricultural land, gardens, or fields continuously.
- b) Engaging in cultivation and planting.
- c) Harvesting or collecting crops in fields or gardens by claiming a right.
- d) Preventing the possessor from benefiting from the real property by leaving items such as stones, soil, trees, or fertilizers.
- e) Preventing the use of irrigation or drinking water, wells, cisterns, waterways, water pipes, or arches.
- f) Digging ditches, foundations, or building structures.
- g) Opening channels to cause water to pass onto others’ lands.
- h) Engaging in similar behaviors to those listed above.
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2) Competent Administrative Authorities and Application Process
In case of encroachment or interference with real property, the regulation provides for the process to be followed and the penalties to be applied to the offenders. According to Article 2 of Law No. 3091, if an unauthorized encroachment or interference occurs on real properties, and if the real property is within the boundaries of the central district of a province, the governor or a deputy governor designated by the governor will decide on preventing the encroachment or interference and deliver the real property back to the possessor. If the real property is within the boundaries of other districts, the sub-governors will decide on preventing the encroachment or interference and deliver the real property back to the possessor. If there is a dispute between two districts concerning the real property, the governor or the Ministry of the Interior will determine the competent authority.
If there are multiple possessors of the real property, any one of them can make the application on behalf of all possessors. In the case of public institutions and organizations or legal entities, their authorized representatives can make the application. For properties belonging to villages, any villager can apply for the prevention of encroachment or interference. Moreover, if the governor or sub-governor learns about encroachment or interference with public properties, state-owned properties, or properties owned by the public, he or she will conduct a direct investigation and render a decision (Article 3 of Law No. 3091).
Applications to the competent authorities must be made within sixty days from the date the authorized persons learn about the encroachment or interference. However, applications cannot be made one year after the occurrence of encroachment or interference. In addition, for state-owned properties, public properties, or properties owned by the public, there is no time limit for making such applications (Article 4 of Law No. 3091).
3) Investigation upon Application – Notification – Witness Testimonies – Decision
Upon the application of the authorized persons, the governor, sub-governor, or an official designated by them will conduct an on-site investigation. Applications clearly and unequivocally excluded from the scope of Law No. 3091 may be rejected in writing without conducting an on-site investigation. Technical experts or assistants may be assigned to the officials conducting the investigation when deemed necessary (Article 5 of Law No. 3091).
The location, date, and time of the investigation and the execution of the decision will be notified to the parties by the administrative authority. During the investigation and execution of the decision, the complainant, their legal representative if any, or their representative, whose name is stated in the application, the mayor, or a member of the council if the application is made for the prevention of encroachment or interference on village-owned properties, must be present at the real property. If the accused person cannot be served with the notification, the location, date, and time of the investigation and execution of the decision will be announced in the village or town where the property is located by customary means, at least three days in advance. If the accused person fails to appear, the investigation and execution of the decision will proceed in their absence. Necessary security measures are taken by the security forces under the written order of the highest local administrative authority during both the investigation and the execution of the decision (Article 9 of Law No. 3091).
After the witnesses are heard, if deemed necessary by the investigator, neutral individuals, and according to their relevance, representatives of the treasury, special administrations, municipalities, village headman, and members of the village council can also be heard by the investigator. The statements are taken under oath in accordance with the provisions of the Code of Criminal Procedure. The investigation must be completed within 15 days, and the decision must be made by the competent authority (Article 6 of Law No. 3091). If no decision is reached within 15 days, the situation must be reported to the higher authority along with the reasons (Article 11 of Law No. 3091).
4) Consequences of Administrative Decisions by Competent Authorities
Decisions made in accordance with Law No. 3091 are definitive, subject to administrative jurisdiction. However, typographical and mathematical errors in the decision can be corrected ex officio by the competent authority. The decision will state that those who claim to have superior rights to the real property must apply to the judicial authorities regarding the real property dispute (Article 7 of Law No. 309
1). Those who encroached or interfered with the real property, and for whom administrative measures were taken to prevent such encroachment or interference, can resort to judicial authorities for any cultivation, installation, or alterations they made on the real property, according to general provisions (Article 10 of Law No. 3091). It is essential to note that Law No. 3091 cannot be applied if there is a court decision regarding the real property dispute as part of an interim measure, or if the dispute has already been brought before the courts. Additionally, during the existence of a prevention decision made by the administrative authority, the judicial authorities cannot issue interim measures related to the real property dispute (Article 14 of Law No. 3091).
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5) Implementation of Administrative Decisions by Competent Authorities
Decisions concerning the prevention of encroachment or interference with real property will be implemented by an enforcement officer appointed by the competent officer, by delivering the real property, in its present state, to the possessor, legal entity, or public administration, institution, or organization. Implementation must be completed within five days from the date the decision is received by the enforcement officer (Article 9 of Law No. 3091). If the decision is not implemented within the five-day period, the situation and reasons must be reported to the higher authority (Article 11 of Law No. 3091). In addition, during the investigation and execution of the decision, if necessary, the highest local administrative authority may order security forces to take necessary measures in the place where the real property is located (Article 9 of Law No. 3091).
According to the additional Article 1 introduced by Law No. 4807, dated February 5, 2003, in the implementation of the decision concerning the prevention of encroachment or interference, locked and closed real properties must be opened if necessary. If required, these places will be forcibly opened, and locks and any type of obstacle will be removed. When the real property is occupied by the encroacher or the offender, the items belonging to the encroacher will be evacuated from the real property, and in case there are no representatives or if the encroacher is not present, the items will be handed over to a competent person from the encroacher’s family or employees. If there is no such person, the belongings will be kept by the possession of the possessor and delivered to the encroacher upon the immediate notification by the enforcement officer. If the encroacher does not claim the belongings within five days in case of local properties, or within thirty days if not local properties, the items will be sold through a public auction, following the determination and announcement of the value. The surplus money will be deposited in the Ziraat Bank on behalf of the encroacher, and the situation will be notified to the encroacher (Article 2 of Law No. 4807).
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6) Repeat Encroachments and Criminal Sanctions
Law No. 3091 provides for the process to be followed and the criminal penalties to be imposed in the event of repeat encroachment or interference with real property by the same offender. According to Article 12 of Law No. 3091, if the same encroacher commits a second encroachment or interference on the same real property, whether carried out by the same offender or others in favor of the first offender, the investigation and decision-making process will be repeated as in the first application. A repeat encroachment or interference on the same property constitutes a separate offense, and the files concerning the offenders will be sent to judicial authorities for action under Article 15 of Law No. 3091. Article 15 of Law No. 3091 stipulates the penalties to be applied for the second encroachment:
- a) If the real property belongs to public institutions or organizations or is under the sovereignty of the State, a penalty of up to two years of imprisonment will be imposed; if the real property belongs to other legal entities or individuals, a penalty of up to one year of imprisonment will be imposed.
- b) If the encroachment or interference is committed by an armed person or by multiple individuals, even without weapons, the penalties in subparagraph (a) will be increased by one fold.
- c) If the encroachment or interference is committed by two or more individuals in order to share or use the real property jointly, the increased penalty under subparagraph (b) will be additionally increased by one-third. If at least one of the individuals involved in this group is armed, the increased penalty under subparagraph (b) will be additionally increased by half.
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To benefit from our legal expertise and consultancy on preventing encroachments on real property possession through administrative proceedings, feel free to reach out to our Real Estate Lawyers in Antalya. We are dedicated to providing you with the necessary legal support, ensuring that your real estate investments in Turkey are successful and protected. Contact us today, and our experts will respond promptly, addressing your inquiries and guiding you every step of the way.