TURKISH SUPREME COURT
5th Civil Chamber
Main Case No.: 2014/4788
Decision No.: 2014/12549
Date of Decision: 05/06/2014
EXCESSIVE DETERMINATION OF THE COST OF THE EASEMENT RIGHT – THE APPLICATION AND POWER OF ATTORNEY SUBMITTED BY THE PLAINTIFF SHOULD BE RETURNED – VIOLATION OF THE JUDGMENT
Summary: The subject of the case is real property; the damage ratio resulting from its geometric location, area, and the route of an electrical transmission line was determined at a higher rate than the percentage of the property’s total value (1), and by disregarding the identification and reporting of a higher damage rate, a determination was made that exceeds the cost of the easement right; the plaintiff’s application and power of attorney, submitted by the party deemed not to have made the payment, should be returned; the right is recognized, and the decision must be reversed.
(Turkish Civil Code Art. 756)
Case and Decision: Regarding the transfer of the real property between the parties, the energy transmission line pole without expropriation, in exchange for the compensation amount for the easement right, due to the collection made as a result of the lawsuit, on the written examination date regarding the figures provided above for the acceptance of the Supreme Court’s decision, it was considered necessary to examine and discuss the disputed documents, as indicated in the file by the administrative authority, regarding the petition submitted by the defendant to the plaintiff:
The case concerns the value of the real property transferred to the power transmission line, the seizure of the property without expropriation, and the collection of a sum equivalent to the right of way in exchange for the cost of the pole site.
The court decided to accept the case, and the decision was appealed by the defendant administrative authority.
Regarding the methodology, no procedural inconsistencies were found in the valuation of the property in question using the income approach or in the decision to collect the cost of the pole site and the easement fee.
However;
1 – Without taking into account the fact that a higher rate of value loss—calculated as a percentage of the property’s total value—was identified and reported due to the property’s real estate nature, geometric location, area, and the value loss resulting from an electricity transmission line route, the cost of the easement right was determined,
2 – It is not considered necessary to return the application and power of attorney documents submitted by the plaintiff.
This is not accepted as correct.
Result:
Since the plaintiff’s attorney’s objections were taken into account, the decision was made by unanimous vote on May 6, 2014, in accordance with the reasons outlined in Article 428 of the H. UMK, to refund the previously collected objection fee upon request and to record the objection fee in the Treasury by unanimous vote. (¤¤)