Service on the Property Owner Will Not Bind You
Official titleDecision of the Council of State (Danıştay), Sixth Chamber
The Council of State held that calculating the time limit for filing a lawsuit against an administrative action from the date of service on the property owner and dismissing the lawsuit on time-bar grounds was unlawful, and reversed the decision in the interest of law.
Details of the Regulation
A lawsuit was filed by a company operating as a tenant of a property located in Istanbul Beşiktaş against the cancellation of the property’s structure registration certificate on the reasoning that the structure had been built after the specified date, as well as against the demolition and fine proceedings. The court of first instance found the proceedings unlawful and annulled them; however, the İstanbul Bölge İdare Mahkemesi 5. İdari Dava Dairesi based itself on the date of service on the owner of the property and dismissed the tenant’s lawsuit on time-bar grounds.
The Council of State Chief Public Prosecutor’s Office stated that the decision produced results contrary to the law in force and filed an appeal on points of law in the interest of law. The Chief Public Prosecutor’s Office argued that the tenant could not be bound by service on the property owner, that the right to seek redress was restricted, and that the time limit should begin from the date on which the tenant learned of the action or from the date of notification to the tenant.
Upon review, the Council of State 6th Chamber held that the Regional Administrative Court’s narrowly construed time-bar decision infringed the right to seek redress and the right to a fair hearing, both guaranteed by the constitution. In accordance with Article 51 of Law No. 2577, the Court reversed the local court’s decision in the interest of law, without affecting the legal consequences of the judgment.
Questions You Might Have
- When may a tenant file a lawsuit against a demolition order served on the property owner?
- Service on the property owner does not bind the tenant; the tenant may file a lawsuit from the date on which they learn of the action or the date on which it is served on them.
- Does this decision affect the property owner’s previous lawsuit?
- No. Decisions reversing a matter “in the interest of law” do not change the outcome of previously finalized court decisions for the parties; they merely correct a legal error.
- Why was dismissal of the lawsuit on “time-bar” grounds found to be unconstitutional?
- Because asserting that the time limit for an action of which the person was not notified has expired prevents that person from accessing the courts and violates their right to a fair hearing.
Key Terms
- Kanun Yararına Temyiz
- A legal remedy instituted to protect the law against decisions rendered by courts that have become final but contain unlawful elements.
- Süre Aşımı
- Dismissal on procedural grounds due to a lawsuit not being filed within the legally prescribed time limits.
- Yapı Kayıt Belgesi
- A registration certificate issued for structures built without a permit or in violation of planning law under the construction amnesty.
- Hak Arama Hürriyeti
- Everyone’s right to make allegations and present a defense before the judiciary as a plaintiff or defendant by using lawful means.
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REGAS Commentary
This decision provides an important safeguard as to who may file a lawsuit against administrative actions and within which time limits. An action established by the administration, such as an order demolishing a building, may affect not only the owner but also every other “interested” person, including a tenant or the holder of a superior interest. The Court confirmed that notification to the property owner does not automatically bind the tenant and that the tenant has a primary right to have recourse to a judicial remedy to protect their rights.