Question Marks in Urban Transformation

Question Marks in Urban Transformation

Indicative Abstract

The full text of this article has been published in Turkish

Introduction

The problem of poor construction is a known fact that is why the necessity of article 6306: “The Act on the Transformation of Areas under Disaster Risk,” which was passed by the Turkish Parliament is not open to discussion. However, this necessity should not prevent an objective critique.  The right to live in a healthy environment and the right to have decent housing are among the basic human rights; so is the right to own property. The duty of the legislature is to optimally accommodate these two basic rights. In this article we tried to analyse this in terms of accommodation.

The Background of this litigious law is as follows: First, the risky areas and building sites are going to be determined . The determination of risky buildings is going to be demanded by the owners from private institutions (in return for its compensation), if not, the Ministry of Environment and Urban Planning  or Municipalities and Special Provincial Administrations (in accordance with their authorization) will determine it ex officio. The risky areas are going to be determined by the Ministry or the aforementioned public institutions. All buildings in the risky areas are going to be demolished and all the people living in these areas are going to be transported to reserve areas in other locations. If the risky buildings are not renewed by their owners, the state is going to demolish and rebuild these buildings (through the Housing Development Administration of Turkey [1]). If the buildings cannot be renewed in the original location, the new buildings are going to be constructed in the areas reserved for this purpose. The various buildings and lands that belong to the public are going to be beneficial for this purpose. A pool of funds will be composed for the renewal spending. Rent support will be provided for the owners of demolished houses. In the cases that new buildings are not constructed, loan support for housing will be provided for the owners.

Is Citizen Consent Really Sought?

An emphasis on ‘volunteerism’ was made in the general legislative intention by stating “introduction of the volunteerism principle rather than ‘mandatory by law’ in article 7269”. The fifth article of the law has similar statements: “It is prior to reach an agreement with the owners”. However, because of the other articles of the law, it is obvious that the principle of “volunteerism” remains as a mere promise.

A Two thirds consent majority by the apartment owners in the buildings will be sufficient for the demolition. This may seem reasonable to convince people to give their consent, but the property rights of those who do not do so should be respected. The ‘involuntary citizen[2]’ who owned an apartment in the building which may or may not be under healthy conditions will be given a plot of land after the transformation. The response to the question “To what extent does this plot of land compensate the apartment’s value?” is not clear enough.

If the building owners do not give consent with a two thirds majority, the state is going to ‘URGENTLY’ expropriate the building. According to Turkish Expropriation Law, ‘urgent expropriation’ is a method that can be implemented in a ‘state of emergency’. Hereunder, urban transformation is considered as a ‘state of emergency’. “The army of minority, who did not give their consent” are not going to receive their expropriation payments in full, but rather,one sixth of the price is going to be paid immediately, while the remainder is going to be paid over the course of five years. This denotes the fact that it is not going to be easy for the former owners to purchase a new house by adding some money on top of the expropriation payments.

While the law provides options such as: housing, business places, housing certificates, housing loans for the volunteers, even their renters. It ignores those who did not give consent despite the fact that they could change their minds when they see the re-constructed buildings.

The threats to the right to own property are not limited to these. The SAFEST OF THE SAFE buildings located in the ‘risky areas’ or ‘reserved building spaces’ are also under threat.  Section 7 of article 3 states the following: “Other than the risky ones, all the buildings inside the areas determined for the implementation of the law and that are seen as necessary by the Ministry with regard to the unity of implementation are also subject to the articles of this law.”

According to section 3 of article 4, the electricity, water and gas services to the risky buildings are going to be cut.

The law tried to prevent all the possibilities of objection: the administrative executions of the law cannot be stopped. It is not convincing to explain this situation as ‘to prevent delays of the procedures’, since it was possible to put a provision like ‘Administrative courts retain jurisdiction about the requests to stop executions within 48 hours’.

The commitment to prevent objections from the start can also be seen in other parts of the law. Concerning the buildings that are determined as ‘risky’ by the Ministry or the other authorized administrations, the reclamation period is extremely short: Only fifteen days! Furthermore, the independence of the commissions to examine the objections is controversial.

Are We Ready for Implementation?

It is obvious that the government is willing to take action concerning this law in short time, but this issue is too complicated to get through with an act containing 25 articles; a comprehensive preliminary preparation and a number of secondary arrangements that settles the details were necessary. However, there is not any explanatory text other than one ‘Application Regulations’.

Application Regulation presents some explanations for some issues but there are requirements for secondary arrangements in other parts of the act: for example, which authorizations will be delegated from the Ministry to the Housing Development Administration of Turkey and Municipalities? What will be the ground regulations concerning the spending and recording of the pool of funds? What will be the rules concerning the assets like the housing certificates that will be given to owners? All of these things are not clear. Similarly, rent support, housing loans and interest support are ambiguous.

One of the problematic issues that requires rules is the format of the agreements. On which issues will the administrations and the owners reach an agreement? Standard law documents are required but they are still not present. The ground rules for land consolidation and apartment receiving for landownership are still indefinite.

For some indefinite issues, the act uses statements such as “Will be determined by the Ministry or Council of Ministers, will be settled by regulations”, but when these documents will be written is still indeterminate.

Do These Authorizations Go Beyond the Limit? 

The law gives extraordinary authority to the Ministry, indirectly to the Housing Development Administration of Turkey and Municipalities. The Ministry and its authority partners have limitless authority on all the real properties in the risky areas and reserve building sites. They can sell them, barter them, and transfer all the property rights to another location. There is no requirement of asking owners’ opinions.

The ministry and its authority partners, regardless of the real holder of  authority can make all kinds of construction plan and projects. They can change the existing construction plans, no questions asked. They can ignore the construction regulations that ensure the completeness and aesthetics of the urban area. The plans made by the Ministry and its authority partners are not subject to the limitations of the Construction Law and special laws concerning construction.

The Ministry can change all the standards concerning the construction plans and make new ones.

The Ministry and its authority partners operate without limitations and responsibilities brought by laws concerning: agriculture, forestry, tourism, shore, pasture, culture and other public spaces. The willingness to get rid of the existing laws is so excessive that it was not sufficient to state all different laws. The exemption was ensured through the statement that ‘the other laws that are against this law are not to be implemented’.

Too much authority and benefiting from all these exceptions may provide ‘speed’ in the transformation of risky buildings and risky areas, but it may not provide “equity”.

Will the Citizens Be Better Off?

The only solution for the citizen who does not have the means for the re-construction of  a house is the system of ‘apartment received for landownership’. In this system, the resources for the building contractor are going to be gained through increasing the storey height but this system, in which single-storey house owners get 3 to 5 apartments in the areas that are newly opened for construction, cannot be implemented easily in the old urban areas with dense settlement. Land consolidation that also include old public buildings can be a solution; however these areas (win-win) are not many in number.

The other solutions presented by the law are not as advantageous as the others for the owners: will the owner, who does not get a new apartment in the old location of the risky building but instead gets a new apartment in the reserve area in the fringes of the city be happy? Expropriation money, housing certificates or housing loans instead of new apartment are also not satisfactory.

On the other hand the potential of the transformation implementations by the law to make people unsatisfied is not limited to this. The actual tragedy is that the big capitalist corporations capturing the old, but at the same time central and valuable buildings under the name of “transformation, land consolidation”, and the economic exile of citizens to the corners of the city with the reasoning that “you cannot have new apartments in this area”. This would be the worst case scenario.

Conclusion

There are millions of houses that will not wait for an earthquake to be demolished, but there are not any citizens willing to renovate these houses by themselves. Consequently, this state-lead (even state-forced) solidarity of transformation is necessary. However, the state should avoid separating people from their land, leaving them with housing certificates, bonds and some other documents, while promising them new apartments. The present law is full of legal gaps and is simply insufficient. Even if it was written perfectly, there would be other necessities such as: good intentions/faith, transparency, respect for rights, being open to audit by the public, including people who will be affected by this law in the decision making processes, valuing knowledge and experience, considering the good will recommendations. Whether these components exist or not, the implementation will be the indicator.

 Hıfzı Deveci, Retired Member of the State Supervisory Council, Public Administration Specialist and Author

Please cite this publication as follows:

Deveci, Hıfzı (October, 2012), “Question Marks in Urban Transformation”, Vol. I, Issue 8, pp.28-31, Centre for Policy Analysis and Research on Turkey (ResearchTurkey), London, ResearchTurkey. (http://researchturkey.org/?p=2083)


[1] TOKİ
[2] The citizen that does not want to give his/her consent to the demolishment of the building.
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