Genel Makale

Property Rights of Natural and Legal Persons Under Private Law Over Immovable Cultural Assets

Av. Mert Erdoğan

First, it is worth noting that the subject of this article is limited to: real or legal persons under private law in the context of Turkish law who, according to land registry records, are the owners of existing properties (not those constructed later with a building permit), and which are protected under the provisions of Law No. 2863 and related legislation. To illustrate, as in the examples provided below, the article will briefly address whether it is legally possible for an individual to own the remains of a castle and put them up for sale, as well as the state’s positive obligations in this regard.

II. Theodosius is regarded as one of the reformist emperors of the Eastern Roman Empire. The city walls of Istanbul, also known as the Theodosius Walls, were constructed during his reign; the Theodosius Laws—a significant codification effort aimed at establishing the public authority of the Christian-Roman State—were also enacted during his reign. However, another project that set this emperor apart was the Magnaura Palace complex and the Pandidakterion tes Magnauras—Europe’s first university—which would be established under the palace’s auspices in subsequent years.[1] The four-story building—one of the surviving remnants of the palace where foreign ambassadors and visitors were hosted, and which housed the university—was put up for sale in recent years. According to reports on numerous news sites, interest in the building was so great that there were even prospective buyers from abroad. Discovered during the demolition of a facility that the former mayor of Eminönü had acquired as a sock factory, the structure was purchased in 2017 by I.B.B. Kültür A.Ş., a subsidiary of the Istanbul Metropolitan Municipality, for 9.5 million euros. The fate of the building, which currently remains idle, is unknown.[2]

Another building recently put up for sale is the structure in Cağaloğlu, Fatih District, Istanbul, which is said to bear traces of three different empires.[3] According to historian Mehmet Dilbaz, the building—whose top floor was constructed during the Republican era—has the columns of an 1,800-year-old Roman cistern in its foundation, with a Byzantine structure situated directly above it. As the ground level rose over time, the columns and the cistern structure were left buried beneath, yet the building seems unable to resist serving as a mirror to Istanbul’s past and the civilizations that once ruled over it. So, can immovable cultural assets be freely bought and sold simply because they are privately owned? Should the right to private property be prioritized, or should the view that cultural assets are the common heritage of humanity prevail—meaning that, in the public interest, immovable cultural assets belong to the public and, consequently, to the state?

The fundamental law protecting cultural assets in our legal system is Law No. 2863, the “Law on the Protection of Cultural and Natural Assets,” which entered into force in 1983. The second section of the law regulates the protection of immovable cultural assets. Regarding ownership, Article 5 under the heading “General Provisions” in the first section of the same law states: “Movable and immovable cultural and natural assets that are known to exist or may be discovered in the future and require protection—whether located on real property owned by the State, public institutions, or legal entities subject to private law—are considered State property. Endowed and attached waqf properties, which are subject to a separate status due to their special characteristics, are excluded from this provision. When examined specifically in light of this article, there is no dispute regarding waqf properties. Similarly, with regard to real property belonging to the State or public institutions and organizations, there is no dispute regarding ownership, as such properties are considered State property.

The point of contention centers on the question of who owns another immovable cultural asset located on real property that does not belong to the state or a waqf. Based on the phrase “constitutes state property,” it can be inferred that the state’s right of ownership over public property differs from that under private law; that state property, with certain exceptions, cannot be subject to private ownership; and that, in any case, when the public interest is taken into account, a private individual cannot be the owner of a cultural asset located on real property owned by a private individual. Accordingly, the view that the phrases in Articles 11, 12, and 15 should be understood to mean “the owner of the land on which immovable cultural and natural assets are situated” is a matter of debate in legal scholarship.[4]

What Does the Constitution Say on This Matter?

Article 35 of the Constitution of the Republic of Turkey No. 2709 recognizes and guarantees the right to property. The right to property is also regulated in Article 1 of Protocol No. 1 to the European Convention on Human Rights, to which Turkey is a party, thereby holding states responsible for protecting the right to property as a natural right. Similarly, Article 683 of the Turkish Civil Code No. 4721, titled “The Content of the Right to Property,” of the Turkish Civil Code No. 4721, titled “The Content of the Right to Property,” provides that “The owner of a thing has the authority, within the limits of the legal system, to use, enjoy, and dispose of that thing as he or she sees fit.” Taking national and international legislation into account, can it be said that a direct right of ownership is established in favor of a person with respect to an immovable cultural asset located on real property of which they are the owner?

Article 35 of the Constitution does not establish the right to property as an unlimited right; rather, it provides that this right may be restricted by law for the public good. This limitation may be imposed, in accordance with Article 13 of the Constitution, provided that it is consistent with the requirements of a democratic social order, is proportionate, and does not infringe upon the essence of the right. Restrictions imposed on the right to property must strike a reasonable balance between the public interest and the individual interest of the owner. Furthermore, it is stipulated that the exercise of the right to property may not be contrary to the public interest. The scope of the right to property is defined by provisions in several other articles of the Constitution. In this context, Article 43 regarding coastlines, Article 44 regarding land ownership, Article 46 regulating expropriation, Article 63 regarding the protection of historical, cultural, and natural assets, Article 168 on natural resources and assets, and Articles 169 and 170 on forests—all contain rules that define the framework for the guarantee of the right to property as set forth in Article 35 of the Constitution.

Article 63 of the Constitution, titled “Protection of Historical, Cultural, and Natural Assets,” assigns to the state the to ensure the protection of historical, cultural, and natural assets and values and to take supportive and incentivizing measures for this purpose; it further stipulates that restrictions to be imposed on assets and values subject to private ownership, as well as the assistance to be provided to rights holders and the exemptions to be granted as a result, shall be regulated by law . The purpose of enacting Law No. 2863 is to ensure that the State fulfills these obligations. [5]

Therefore, when Article 63 of the Constitution and the relevant provisions of Law No. 2863 on the Protection of Cultural Assets are evaluated together, they permit natural and legal persons under private law to hold property rights over immovable cultural assets; however, if such immovable assets are registered, these registration decisions limit the owners’ property rights in accordance with Article 13 of the Constitution.  In other words, owners holding property rights over registered immovable cultural assets are obligated to carry out the maintenance and repair of these properties. Owners may exercise the authorities granted to them by their property rights over these assets only to the extent that such exercise does not conflict with the provisions of the law (Cultural Heritage Protection Law, Art. 11/II).

In addition, the law provides for the Ministry of Culture to offer owners in-kind, financial, and technical assistance to ensure the proper protection of cultural assets (Article 12/I). To this end, a share equivalent to 10% of property taxes is paid by taxpayers (Art. 12/III); on the other hand, owners of cultural assets classified as Groups 1 and 2 are exempt from paying any taxes, fees, or charges (Art. 21/I). The provisions of the relevant law fulfill the state’s constitutional “duty to take supportive and incentivizing measures.”

Properties belonging to those unable to fulfill the maintenance and repair responsibilities established by this Law are expropriated in accordance with due process (Art. 11/III). The only way for the state to establish a right of ownership over these cultural assets is by paying compensation to owners who fail to fulfill their obligations in accordance with Article 46 of the Constitution, or—in site areas subject to the “Transitional Period Protection Principles and Conditions of Use” and the “Conservation-Oriented Zoning Plan” under Article 17/b of the Cultural Heritage and Natural Sites Protection Law, which impose a definitive prohibition on development, upon the owner’s application, through exchange with real estate belonging to municipalities and provincial special administrations.

Exchange transactions shall be conducted in accordance with subparagraph [f] of the first paragraph of Article 15 of Law No. 2863 [as amended by Article 24 of Law No. 5917 dated June 25, 2009] (f), and in accordance with the provisions of the “Regulation on the Exchange of Real Property Located in Protected Areas with State-Owned Real Property,” which were published in the Official Gazette No. 27588 dated May 22, 2010, and entered into force. In 2019, 105 cases were forwarded to the General Directorate of National Properties under the Ministry of Environment and Urbanization for evaluation in accordance with the provisions of the Exchange Regulation.[6] In 2019, 41,002,000.00 TL was allocated for expropriation proceedings, and 73 properties were expropriated.[7]

By recognizing immovable cultural assets as the common heritage of all humanity, Turkey has moved away from a state-centric approach to conservation as a result of this universal perspective[8], and instead has adopted an integrated conservation policy in line with the(International Council on Monuments and Sites), in line with the Charter for the Conservation and Management of the Archaeological Heritage[9].

Judicial Decisions Acknowledge the Constitutionality of Private Ownership of Immovable Cultural Heritage While Drawing Clearer Boundaries.

In its decision regarding the Bozcaada Greek Orthodox Church Foundation[10], the European Court of Human Rights assessed whether the rejection of the applicant foundation’s request to register immovable property in its name through acquisitive prescription violated the right to property; and although the court accepted that the conditions for acquisition by acquisitive prescription had been met in the foundation’s favor as a result of its lawsuit challenging the cadastral survey, the Court found that the right to property was enforceable in the event that no compensation was paid to the applicant, whose request was rejected on the grounds that the real property had been declared a cultural asset requiring protection and therefore could not be subject to private ownership. Although the applicant in this decision was a foundation, the point at issue is whether immovable cultural assets can be subject to private ownership.

Similarly, in the Kozacıoğlu case[11] against Turkey, the ECHR ruled that failing to take into account the fact that the expropriated property constituted a cultural asset in its valuation constituted a violation of the right to property; and in the Yıltaş Yıldız case[12], the significant discrepancies among the three expert reports obtained during the proceedings for the determination of additional compensation, coupled with the lower courts’ reliance on the lowest valuation, led the ECHR to conclude that the right to property had been violated.

Similarly, in applications filed with the Constitutional Court complaining about the registration of real property as a cultural asset and the resulting restriction or subjection to authorization of the powers of disposal granted by the right to property, the Court has held that since ownership has not been completely taken away from the owners, since the owners can still benefit from rights, exemptions, and privileges under the relevant legislation and exercise the powers conferred by the right to property, the interference may be deemed proportionate. For such an intervention to be deemed disproportionate, the petitioners must assert and prove that they are unable to benefit from the rights, exemptions, and privileges granted under the relevant legislation and are unable to exercise the powers conferred by the right of ownership. [13] 

In summary, as Prof. Dr. Andreas Lötscher has stated, “Good laws are transparent texts.” Legislators must draft laws in a manner that is clear, understandable, and leaves no room for doubt. The fact that the phrase “is state property” was not used instead of “has the nature of state property” in Article 5 of Law No. 2863 raises questions due to the lack of a definitive statement. Furthermore, the use of language in the phrase “real estate owned by natural and legal persons” that is open to the interpretation that “real estate” could refer to “land” is inappropriate. According to Prof. Dr. Sibel Özel, it is not possible to agree with this view. This is because, under the Turkish legal system, the right of ownership cannot be transferred by a single provision of law. If the cultural asset belonged to the state and the land to a private individual, expropriation would not be possible. [14]

Despite the careless language used by the legislature, the conclusion drawn from the spirit of the Constitution and the relevant statutory provisions is that real property deemed to be immovable cultural assets subject to registration under the law may be subject to private ownership. Registration does not eliminate the right of ownership but results in the owners of these immovable cultural assets—which are deemed to require protection—having to assume certain responsibilities. Moreover, this protection stems not from the property’s status as state property but from its status as a cultural asset belonging to all of humanity. Whether they are properties listed under Article 6 of the Cultural Heritage Protection Law or structures registered as Group 1 or Group 2, all of them may be subject to private ownership. What matters is that cultural heritage is transmitted in the manner it deserves—preserving its historical, architectural, and aesthetic characteristics as a bridge between the past and the future. If we know, we protect.

Mert ERDOĞAN, Esq.

This article was written by Attorney Mert ERDOĞAN. Even if the source is cited, the entire text may not be used without special permission. However, a portion of the quoted text may be used provided an active link is provided. Publication of this article, in whole or in part, without citing the author and source constitutes a violation of personal and intellectual property rights.