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Sales of Shares Within the Scope of Law No. 6306

KERIM KOCAMAN SERKAN TAGAL SEZAI OZKAMALI MUSTAFA KOCATEPE AHMET CAGDAS KIZIR
Sales of Shares Within the Scope of Law No. 6306

I) Introduction

As we know, natural disasters, large and small, that occur almost every year in our country appear as the unfortunate fate of our country. However, the results of these disasters are often not related to the magnitude of the disaster but to the conditions of the structures where the disaster occurred or in this area. Especially it is constantly stated that the severe consequences of the earthquakes in our country are the result of the poor quality of the buildings. It is a scientific fact that the earthquakes experienced in the past were not the last major earthquakes in our country, which is located in the earthquake zone. On the other hand, it is not difficult to foresee that in the event of a severe earthquake in our country, especially in Istanbul, people’s right to life will be in great danger due to the structures under disaster risk.

Here, the legislator has prepared Law No. 6306 on The Transformation of Areas Under Disaster Risk to prevent such a negative scenario; afterwards, it enacted the Implementation Regulation of Law No. 6306 to show the implementation of this law. This legislation aims to make risky structures and areas ready for earthquakes and forms the basis of today’s urban transformation practices.

In Law No. 6306, there are regulations to facilitate the urban transformation applications to be carried out in risky buildings in line with the purpose of this law. In this context, 2/3 majority was deemed sufficient for the implementation procedures to be carried out in risky structures. In this case, what will happen to the share of 1/3 minority stakeholder(s) who oppose urban transformation comes to mind. In the law, it is stated that the land shares of the owners who do not agree with the decision taken with at least 2/3 majority of the stakeholders in proportion to their shares in the parcels where the risky structures are located can be sold. Suppose the conditions stipulated in the law are met. In that case, the sale of the shares of the opposition stakeholder is made possible within the framework of the procedure outlined in Article 15/A of the Implementing Regulation. In that case, the establishment of share sales emerges as an important tool for realising urban transformation applications.

Law No. 6306, under the risk of disaster, includes risky area, risky structure and reserve structure areas. Still, in this study, we will examine the subject and conditions of the sale of shares belonging to the owners in risky structures within the scope of Law No. 6306.

II) The Law No. 6306 in General Terms and Urban Transformation

The Law No. 6306 is the main source of urban transformation applications today.[1] This Law is much more inclusive than the previous legislation on urban transformation.

According to Article 1, “The purpose of this Law; is to create healthy and safe living environments in accordance with science and art norms and standards in areas under disaster risk and on lands and lands with risky structures outside these areas.” As it can be understood, with this Law, the legislator purposed to remove the risks that may cause damage to life and property as a result of possible disasters, to ensure that urban areas and structures comply with planning and urbanism principles; in short, urban transformation.[2] Although the concept of “disaster” is included in Law No. 6306, when this Law is examined, it is understood that the main focus point is earthquake disaster.

When the justification of the Law No. 6306 is analysed, it can be seen that Turkey is at risk of earthquakes; nevertheless, it has been stated that most of the existing structures are not resistant to possible disasters, and they are severely damaged and destroyed even in a moderate earthquake. Law No. 6306 aimed to transform the structures and areas at risk as soon as possible and make Turkey ready for potential disasters and earthquakes. The scope of Law No. 6306 has been determined accordingly.

The law foresees that the structures on privately owned immovables be subjected to earthquake resistance tests, that the structures found to be risky as a result of these tests are demolished, and new disaster-resistant structures are built in their place; It is about the evacuation of the areas that will be exposed to disaster due to the nature of the ground on the ground and the transfer of the people living in these areas to the new settlement areas.[3]

In its decision dated 27.02.2014 and numbered M. 2012/87 K. 2014/41 of the Constitutional Court, the expression “Undoubtedly, there are important personal interests of risky building owners in this.” is included in relation to urban transformation in line with the justification and subject of the law. However, it is difficult to say that the interest expressed in this way exists for all owners in every concrete situation. The interest (benefit) desired to be obtained through urban transformation practices, and the right of ownership may come across from time to time; transformation is not always easy. The “share sale” business has already emerged as a result of this difficulty.

III) Subject of Sale: Share

It is seen that the legislature gives place to the concepts of “share”, “land share”, and “share” separately at different points in the Law and Implementation Regulation No. 6306. In our subject, a share is a concept that provides the authority to ‘participate’ in joint ownership of property and includes rights and obligations. Thanks to this share, the shareholders have the “owner rights and obligations” specified in TCC article 688. As a word meaning, “share” and “share” are synonymous. Indeed, if there is no joint (common) ownership among the owners who are entitled to the immovable property subject to the risky building decision, share and shares?? are used per the meaning of the word in the systematic of the Law No. 6306. However, if some are subject to the jointly shared property regime among the risky building owners, the legislator is based on the shares of these owners on their shares in the immovable.

Both in the calculation of 2/3 of the shareholders who have the minimum quorum to decide on the implementation procedures and in terms of constituting the subject of the sale; Not the whole of the jointly owned share, but the shares of the stakeholders, each of whom has ownership rights and obligations in terms of their share, are taken into account. Joint ownership shareholders participating in the decisions taken within the scope of Law No. 6306 while maintaining their property rights in the immovable after the transformation practices within the scope of their shares; The shares of (s) who do not participate in the decision may be subject to sale. In this case, the subject of the sale is not the entire share but the shares of the joint owners who do not participate in the decision regarding the implementation.

Thus, in the implementation procedures to be carried out in the building, which is determined as a risky structure and desired to be transformed quickly following the Law No. 6306, under the provisions of the Turkish Civil Code No. 4271, a possible preliminary problem regarding management and disposition in co-ownership is prevented.[4] As it can be understood, in this case, it is possible to say that the subject of the sale within the scope of the Law No. 6306 is the share.

IV) Terms of Sale of Shares

After completing certain conditions, the sale of shares to be carried out within the scope of Law No. 6306 becomes the subject of an administrative procedure. In other words, the realisation of the sale of the shares of the risky building owners by the administration primarily depends on the existence of the conditions specified in the legislation regarding the sale of shares. If the administration decides that the conditions for the sale of shares do not exist, it will reject the request; will accept the applications that meet the requirements, and carry out the sales transaction according to the sale of shares.

A) Presence Of Risky Building Decision

A risky structure is defined as “a structure inside or outside the risky area, has completed its economic life, or is at risk of ruin or severe damage, determined based on scientific and technical data” per Article 2 f.1/d of Law No. 6306.[5]

Therefore, for the share sale transaction to take place within Law No. 6306, there must first be a structure[6] in the middle.

The Implementation Regulation has not regulated every production that can be evaluated within the definition of building according to the Zoning Law, in a way that can be the subject of a risky building decision; It has narrowed the scope of buildings that may be subject to risky building decision. Accordingly, “risky structure detection; is made about structures that can be used on their own, that are covered and that people can enter and that people can sit, work, have fun or rest or worship, and structures that serve to protect animals and goods. Structures under construction but are not inhabited, and structures that have deteriorated statically due to dereliction or any other reason are not subject to risky building determination.” Based on this provision of the Implementation Regulation, it can be said that the building[7] concept defined in Article 5 of the Zoning Law should be understood from the structures that can be transformed within the scope of Law No. 6306 and its sub-legislation.

The Implementing Regulation also further narrowed the scope of buildings that could be subject to conversion by providing two additional conditions, “not under construction” and “be habitable” and “statically intact structural integrity”. After all, the scope has been kept broad in line with Law No. 6306 by not making distinctions as licensed-unlicensed, with and without a building occupancy permit, regarding the buildings that may be subject to transformation.

Undoubtedly, the existence of a building of this nature alone will not allow it to be subject to implementation procedures. The aforementioned building must have a risky nature, and a risk determination must be made in this direction.[8] This determination, which changes the legal status of the real estate, is the beginning of the urban transformation process and the first condition of the share sale within the scope of Law No. 6306.

B) Agreement of The Owners and The Decision to Sell The Shares

After the risky structure determination decision is taken, the owners must decide on the implementation procedures to be carried out on the real estate. No legal dispute will arise between the shareholders if the owners unanimously decide on the implementation procedures to be carried out on the immovable subject to the risky construction decision. In this sense, the problem arises if the owners do not reach a complete agreement on which way to save on the property, which has been identified as a risky structure.

According to Article 6 of the Law titled “application processes” , “in risky buildings, in the parcels where these buildings are located, before the buildings are demolished, the consolidation of the parcels, individual or combined or application based on the building block, allotment, abandonment, formation and registration to the title deed, re-building, sale of shares, flat or revenue sharing and other It is decided by at least two-thirds majority of the stakeholders in proportion to the shares they hold, regardless of whether they are a shareholder of the structure or not.” As it is understood, the issue of how the parcel where the building, which is the subject of the risky building decision in the legislation, will be evaluated is not numerus clausus. The owners decide the zoning practices to be carried out on the immovable and how the immovable will be evaluated upon the decision to determine the risky structure. These decisions to be taken by the owners are of a nature that will directly affect the shareholders’ opposition, the decision to sell the shares, the value of the shares to be subject to the sale and the right of ownership.

For the decisions to be taken by the owners on the evaluation of the immovable subject to the decision after the risky structure determination decision, special provisions have been introduced in the Law and Implementation Regulation No. 6306 regarding the time and quorum of the decision and the procedure for making the decision. The legislator and the owners of immovable cannot agree on how to be evaluated based on the possibility of legal disputes between them. They will be held in the building identified as risk decision-making about the application process and procedure separate from the general provisions. It allowed the shares of those who did not agree with this decision to be sold.

The decision quorum is important in terms of our subject so that this legal opportunity, which directly affects the property rights of persons, namely the owners of risky buildings, and even terminates it depending on the situation, can be used in accordance with the law and only this case will be examined.

Quorum

Suppose the owners of the risky buildings cannot reach a unanimous agreement regarding the implementation procedures to be carried out in the risky building. In that case, the legislator considers the decision taken by at least 2/3 majority of the stakeholders sufficient to ensure the transformation of the building under disaster risk in accordance with the norms and standards. In this case, the question of what the owners’ shares who do not agree with the decision will become to the fore, but as we mentioned above, Law No. 6306 allows the sale of these shares.

According to Article 6 of Law No. 6306, “[…] in risky buildings, in the parcels where these buildings are located, before the buildings are demolished, […] sale of shares, […], it is decided by at least two-thirds majority of the stakeholders in proportion to the shares they hold, regardless of whether they are a shareholder of the structure or not.” In this case, if a decision is made by at least 2/3 of the stakeholders regarding the implementation procedures to be carried out in risky structures, a decision should be made by the owners who participated in the decision for the sale of the shares of the owners who disagree with the decision.

The point to be emphasised is how the two-thirds majority will be determined. In Law No. 6306, the provision “it is decided by at least two-thirds majority of the stakeholders in proportion to the shares they hold, regardless of whether they are a shareholder of the structure or not.” is included while making this calculation. The doctrine has discussed whether the quorum in the provision mentioned above refers to the majority of the shares and shareholders or only the majority of the shares. It has been accepted that this quorum is the majority of the shares in general.[9]

The legislator has determined a different rule than the decision quorum stipulated in the Turkish Civil Code for co-ownership or the Condominium Ownership Law for the owners to dispose of the immovable property. Regarding the 2/3 quorum, the law was based only on the share. Considering the purpose of the Law No. 6306, it can be said that it is an appropriate approach to take the share as a basis in deciding on the sale of shares for a building that will be demolished if it is determined to be risky, that is if it cannot be strengthened.

Another statement that should be noted here is that it is regulated that the 2/3 quorum will be calculated in proportion to the shares of the owners “regardless of whether they are a shareholder of the structure or not”. Based on this statement, whether there will be a stakeholder without a shareholder in the structure arises. It can be said that this expression was introduced to indicate that the number of shareholders will not be taken into account in the decisions to be taken regarding the implementation process and, therefore, the share sale, only the share will be taken as the basis, and in cases where the ownership of the building and the supply may differ, the share of the landowners should be taken into account.

Indeed, it is possible to see the legal basis of these inferences when we look at the Implementation Regulation, which was issued to show the implementation of Law No. 6306. According to Article 15/7 of the Implementation Regulation, “If there is more than one building in a parcel and all of these buildings are determined as risky buildings, the implementations to be carried out are decided by at least two-thirds majority of all owners in proportion to their shares, regardless of whether they are shareholders of the building or not.”

As can be seen, if there is more than one risky building on a parcel, the 2/3 quorum is not sought separately for each risky building; This quorum is calculated over the total shares owned by the owners of risky structures. In addition, in Article 7/2 of the Implementing Regulation, titled “Detection of Risky Buildings and Objection”, the provision“If the building on the land belongs to someone else and this is stated in the land registry, it is made by the party who has annotated in favour of the risky structure determination” is indicated, indicating that the owner of the building and the owner of the land may differ. In such a case, the persons who can apply for the risky structure determination and the persons who will decide on the implementation procedures are separated; If a risky structure is determined, how the real estate will be saved and the sale of shares will be decided in line with the shares of the landowners, regardless of whether the building is the owner or not.

In this case, it is possible to say that the 2/3 quorum sought in the decisions to be taken regarding the implementation procedures and share sales will be calculated over the shares held by the owners of the risky building(s) on the parcel.

A question may come to mind; If there is both joint ownership and co-ownership on a risky structure, how will it be acted in this case?

There are various opinions in the doctrine on this issue. Oğuzman states that according to the dominant view defended by Selici and Ozdemir, there will be no share in joint ownership, which is a type of co-ownership, unlike shared ownership. Turkish Civil Code art. According to 201/2, “The partners do not have a determined share in the joint venture’s ownership, and each’s right is common to all the goods entering the partnership.”

In cases where joint ownership is in question, for the establishment of a transaction within the scope of Law No. 6306, it can be said that it is necessary to act within the framework of TCC art. 702 or to terminate the ownership jointly pursuant to TCC art. 703.

According to article 702 of the Turkish Civil Code, “The rights and obligations of the partners are determined by the provisions of the law or contract that gave birth to the community. Unlike the law or the contract, provision unanimously, the partners for both management and savings transactions. A decision they must make. As long as the contractual community continues, no share can be made, and no share can be saved. Each of the partners may ensure the protection of the community’s rights. All partners benefit from this protection.” In terms of our subject, the second paragraph of TCC 702 is important for us. According to the provision mentioned earlier, if there is no contrary provision in the law and the contract, to make a transformation decision about the risky building with joint ownership of it, the persons who have the right of ownership of the building must make this decision unanimously. Another possibility is within the scope of TCC 703. According to this provision, “The co-ownership ends with the property’s transfer, the community’s dissolution or the transition to shared ownership. Unlike a provision, unless found, sharing is made according to the provisions of shared ownership.

Based on this provision, if the co-ownership of the risky structure is eliminated or removed in any way, sales will be possible within the scope of Article 6 of the Law No. 6306, which we explained above, since the distribution will be made according to the provisions of joint ownership as a rule, and since the concepts of share (share) and shareholder can no longer be mentioned.

After these explanations, if we go back to the question we asked at the beginning; If there is both co-ownership and joint ownership on a risky structure, according to the dominant view; In terms of the part where co-ownership is in question, it will be possible to act on this issue by deciding as specified in Article 6 of the Law No. 6306.

To make such a decision in terms of the part where the joint property is located, the unanimity of the persons who have the property right in the form of cooperation is required. However, if the joint ownership is eliminated in any way since the principles of co-ownership will be passed, it will be possible to act within the scope of Article 6 of Law No. 6306.


Bibliography

  • CAKIR, ULKER, 6306 Sayili Kanun Kapsaminda Riskli Yapilarda Pay (Hisse) Satisi, Marmara Universitesi Hukuk Fakultesi Hukuk Arastirmalari Dergisi, Cilt 27, Sayi 2, Aralık 2021.
  • USTUN, Kentsel Donusum Hukuku, On Iki Levha Yayinlari, 2014, Istanbul.
  • OY, NAZIK, Kentsel Donusum Kapsamında Rezerv Yapı Alanı Riskli Alan ve Riskli Yapılar, Beta Yayinlari, 2014, Istanbul.
  • OGUZMAN, SECİL, OZDEMIR, Esya Hukuku, Filiz Yayinlari, 2020, Istanbul.

References

  • [1] Ustun, Kentsel Donusum Hukuku p. 128.
  • [2] Oy, Nazik, Kentsel Donusum Kapsaminda Rezerv Yapi Alaiı, Riskli Alan ve Riskli Yapilar p. 46.
  • [3] Ustun, Kentsel Donusum Hukuku p. 131.
  • [4] Cakir, Ulker, 6306 Sayili Kanun Kapsaminda Riskli Yapilarda Pay (Hisse) Satisi, p. 11.
  • [6] 3194 sayili Imar Kanunu’nun 5. maddesine gore yapi, “karada ve suda, daimî veya muvakkat, resmi ve hususi yeraltı ve yerustu insaati ile bunlarin ilave, degisiklik ve tamirlerini icine alan sabit ve muteharrik tesislerdir.”
  • [7] “Bina; kendi basina kullanilabilen, ustu ortulu ve insanlarin icine girebilecekleri ve insanlarin oturma, calisma, eglenme veya dinlenmelerine veya ibadet etmelerine yarayan, hayvanların ve esyalarin korunmasina yarayan yapilardir.”
  • [8] Gun Yazici, Yargi Kararlari Isiginda Kentsel Donusum, Riskli Yapilar ve Yargisal Denetim p. 146.
  • [9] Cakir, Ulker, 6306 Sayili Kanun Kapsaminda Riskli Yapilarda Pay (Hisse) Satisi, p. 14.

Translated By: Hilal OZISIK.

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