What is the Definition of Right of Passage?
The right of passage, regulated under Article 747 of the Turkish Civil Code No. 4721, is defined as the right allowing an immovable property without access to a road to reach it by using a neighboring property. The right of passage is a property right and can be asserted against all parties.
Is Mediation Mandatory in Right of Passage Cases?
It should be noted that the mediation process is mandatory before filing a lawsuit for the right of passage. At the mediation stage, parties may reach an agreement either for a fee or without any fee, resolving the dispute in this manner. If the mediation process does not result in an agreement, legal action must be pursued.
Who Are the Parties in a Right of Passage Lawsuit?
In a right of passage lawsuit, the plaintiff is the owner of the property that lacks access to a road. If the property is jointly owned, all owners must file the lawsuit.
The defendant in the right of passage lawsuit is one or more of the neighboring parcel owners.
In a right of passage lawsuit, an on-site inspection is conducted on the property, followed by an expert report. In this report, the expert determines the most suitable route for the plaintiff to reach the road. The expert also assesses the value of the route passing through the property. This amount, determined by the expert, must be deposited by the plaintiff before the judgment.
The court, considering the case file and the interests of the parties, should make a decision based on objective criteria and fairness. Once the court decision is finalized, the right of passage can be registered in the land registry.
Can a Right of Passage Lawsuit Be Filed Against the State?
The immovable property for which the right of passage is requested must be registered in the land registry. A lawsuit cannot be filed by designating unregistered Treasury land as the defendant. According to the General Communiqué of National Real Estate No. 324, dated 01.02.2012, an agreement on the right of passage is signed between the requesting party and the administration. This agreement specifies the duration and cost of the right of passage. However, it can be said that disputes resolved through administrative means are rarely encountered in practice.
Which Court Has Jurisdiction and Authority in Right of Passage Lawsuits?
The right of passage lawsuit is filed in the civil court of first instance located in the area where the immovable property is situated.
Who Bears the Litigation Costs in a Right of Passage Lawsuit?
In a right of passage lawsuit, all litigation costs are borne by the plaintiff. Even if the plaintiff wins the case, they cannot claim the expenses from the defendants. Since attorney fees are considered litigation costs under the Civil Procedure Code, no attorney fee will be awarded to the plaintiff’s attorney.
Does the Right of Passage End?
The right of passage can be inherited by heirs. However, although rare, the right of passage can also be established for an individual. In this case, the right of passage will terminate upon the death of the individual.
If the right of passage is established for a fixed period, it will expire at the end of that period.
If the necessity for accessing the road due to new circumstances on the property ceases to exist, the right of passage will also end.
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