JULY & AUGUST 2012 |www.opp.org.uk WORDS | Stefano Lucatello Pool problem?


What happens when you move a swimming pool? If you’re a developer with a construction problem, can you get around it by simply rearranging your site? What happens if the buyers later object?


metres to one side and built a house where the pool would have been. We obtained a revised building licence that permitted this. The owner of that house has not complained but the person who had agreed to buy the house opposite the new pool is complaining and refusing to complete. He says he intentionally bought a property that was NOT opposite the pool. . The agent notified all the buyers but this buyer says he was not told. Can the buyer refuse to complete? Can we now resell his property? If we resell, we are likely to receive less than this buyer paid. Can we claim compensation?


The Problem: I develop in Turkey. On the site of one of the pools we found a huge piece of rock so we moved the pool 50 U


nder Turkish Law, the relationship between the property owners of


a building or site is regulated by Turkish Condominium Law No. 634 (“the Law”).


According to the Law “independent ownership rights” are established by the owner or the co-owners of real estate over the portions of a completed building (such as fl oor, apartments, offi ces, shops, stores, cellars, warehouses etc) which are available to be used separately and independently.


On the other hand, “servitude


rights” are established by the owner or the co-owners of a building plot over the portions of a building with these characteristics and being built or to be built in future. This is the basis for the condominium ownership that will be established after the building has been completed.


“Construction servitude” is the servitude established under the provisions of the Law by the owner or the co-owners of a building plot for the independent premises of one or more buildings which are being built or will be built on the plot to be taken as a basis for condominium ownership in the future and the “holder of a construction servitude” is the holder of those rights. Therefore, during the construction period the relationship between the owners or the co-owners of a real estate is called “construction servitude”.


Construction servitude is a servitude type which depends on your share in the building plot and it is converted into condominium ownership of those shared facilities upon the request of a building plot owner or owners who have construction servitude or one of


them from land register office after the building’s occupancy certificate is received.


Therefore, the relationship between the owners of houses in this site is “construction servitude” and each buyer is a holder of construction servitude.


Holders of construction servitude have the following rights:


1. Demanding the mutual execution of the obligations incumbent of them to start and complete the building within the period stipulated in the agreement 2. Bringing legal proceedings to force this Therefore, holders of construction servitude have the right of demanding the mutual execution of the obligations incumbent of them in order that the building can be commenced and completed within the period stipulated in the agreement and they have the right to bring legal proceedings to this effect. To complete the building,


construction servitude holders may appoint one or more of their number or people from outside as project manager. Note that this manager has the same duties and responsibilities as a regular site manager.


If the transition to condominium ownership has not been completed but the building has been completed and 2/3 of the independent divisions has actually started of properties on which construction servitude was established, the provisions of condominium ownership are applied to the management of the main real estate. In addition, under the provisions of


the Reconstruction Law no. 3194 of 3 May 1985, a building construction license must be obtained for all buildings from the Municipality, the


Province, or an authorized private architecture of engineering bureau. In order to obtain the license, application will be made to the above- mentioned authorities by submitting the title deed, the architectural drawings, the structural drawings,


“In our case the revised building licence was obtained without the consent of the owner”


and the electrical and mechanical installation drawings.


If the application is complete, the authorities will grant the permit within, at the most, 30 days. If the application is incomplete or irregular in any way, the permit will be issued only after the defi ciencies or errors have been eliminated. Furthermore, a specifi c fee will be


charged for the construction permit. Construction should commence within two years from the permit issuance or the permit needs to be renewed. Within fi ve years from the date of the permit constructions has to be completed. At the end of construction the


owner is obliged to obtain a permit to use the building.


This permit from the governorship and the municipality will only be granted if the building complies with the construction permit. Legally, electricity, water and sewerage connections are only provided to buildings with a utilisation permit. According to decision of Court


of Appeals for the 18th circuit, dated 13th.June.2005 and numbered 2005/6206, an amendment to the building licence would amount to a


change in “construction servitude” based on this building licence. Therefore, all holders of


construction servitude must consent to this amendment and the new building licence must be approved by the municipality after the consent of the property owners at the time of amendment. However, in our case the revised building licence was obtained without the consent of the property owner. The developer should have asked for property owner’s consent before obtaining the revised building licence. Even if the agent has sent notifi cations to all buyers about the change, just notifying them would not suffi ce, they should also give consent to this change.


Therefore, this buyer can refuse to complete on this basis and can cancel the sale contract and demand the return of the funds he has already paid with interest.


Following the cancellation of the contract the developer can resell the property, however, even if the developer resells the property, he cannot claim compensation if he receives less than this buyer paid.


Please note that the above advice provides general information and does not constitute specific legal advice. Kobalt Law LLP accepts no liability for incorrect content or ad- vice and reliance upon any part of the above response by any reader. For further information or advice, please contact Francesca Pecego or Stefano Lucatello at Kobalt Law LLP on +44 02077391 700 or email francescap@kobaltlaw.co.uk or stefanol@kobaltlaw.co.uk


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