Due to the earthquake disaster that occurred on 06.02.2023 in our country, many buildings were destroyed, and there were significant casualties and property losses. It is evident that the majority of these damages were caused by the construction of buildings in an earthquake-resistant manner that was contrary to the regulations. This article will explain how the administration is responsible for the damages and what legal remedies those affected can pursue.

What is a Building Permit and a Certificate of Occupancy?

The building permit, also known as the construction permit, is defined as the permission obtained from the relevant authority [1] for buildings that are subject to legal approval. In the legislation, buildings that are subject to legal approval are defined as all public and private buildings to be constructed in areas within and outside municipal and surrounding area boundaries through plans.

The Certificate of Occupancy is defined as the document that certifies that a building has been constructed in compliance with the permit and its annexes.

Administrative Responsibilities in Issuing Building Permits

Residential areas and structures such as buildings, parks, and social spaces in these areas must be constructed in accordance with zoning regulations. To do this, a zoning plan is first prepared, determining the locations where residential areas and living spaces can be situated. Compliance with zoning regulations for buildings is also determined through the building permit. While the building permit is usually issued at the completion stage of a building, it also becomes relevant when changes are made to a completed building, such as relocating or demolishing a column.

Building permits are issued by municipalities and the governorships outside municipal and surrounding area boundaries. The relevant authority is responsible for issuing, refusing, or reissuing building permits, halting constructions that are unpermitted or violate the permit conditions. As understood, when the administration identifies that a building for which a permit is requested does not meet the requirements, it should refrain from issuing the permit. The administration has an oversight obligation in this matter.

The building permit ensures that a building complies with safety, health, and environmental conditions, is habitable, and is earthquake-resistant. Therefore, before a building permit can be issued, the building must be inspected by experts to verify compliance with these conditions. This inspection is carried out by persons assigned by the administration. Hence, the administration has an inspection obligation.

On the other hand, the administration must notify the situation regarding buildings that have already been permitted and completed but have been identified as posing a danger in terms of general safety and order. This notification should be followed by necessary repairs or demolition of the building. If the building is not repaired or demolished, the administration is obligated to carry out these actions.

Legal Responsibility of the Administration in Issuing Building Permits

When issuing building permits, the administration must inspect whether the construction plans and projects comply with certain conditions. If deficiencies are found in these conditions, the building permit should not be issued. Failure of the administration to carry out the building permit procedure in compliance with the regulations, with the due care and diligence expected from it, will result in poor service and consequently legal liability.

In our law, the failure to perform, delayed performance, or improper performance of administrative services leads to service defects. Especially in cases of building collapses due to natural disasters like earthquakes, the administration's service defect comes into focus.

It should be emphasized that under the application known as the construction peace, for buildings that have been issued a construction registration certificate, Article 16 of the Zoning Law states that “The responsibility for the building’s earthquake resistance lies with the owner.” The administration’s failure to prevent construction in violation of earthquake regulations or allowing construction along fault lines does not eliminate its responsibility.

For the administration’s liability arising from its service defect, it is necessary that there is a defective action or process by the administration, resulting in damage. Therefore, there must be a causal link between the event that caused the damage and the public service provided. When considering the earthquake disaster, if the municipality issues a building permit for a construction that does not meet the conditions, such as opening an area along a fault line for construction, leading to damage during the earthquake, it constitutes a service defect by the administration. However, it should not be overlooked that the earthquake disaster is unforeseeable and unavoidable. This is important when calculating the degree of fault of the administration.

Lastly, since the administration is responsible for supervision and monitoring within its jurisdiction, it is obligated to detect unpermitted constructions and initiate the necessary administrative processes for these properties. Therefore, if the damage caused by the earthquake is due to an unpermitted construction, it should also be considered a service defect by the administration.

Compensation Lawsuit Based on the Service Defect of the Administration

If the administration fails to fulfill its responsibilities while issuing building permits, the damages incurred can be claimed through an administrative lawsuit. In the lawsuit, the plaintiff, who is the one affected by the earthquake disaster, or their heirs, will sue the relevant administration that issued the building permit. Tenants who are residing in the property damaged by the earthquake can also file this lawsuit.

The competent court in an administrative lawsuit against the administration is the Administrative Court in the place where the damage occurred.

In the lawsuit, the injured party may also claim non-material damages, along with material damages. Examples of material compensation include the cost of buildings and belongings destroyed in the earthquake disaster. Non-material damages can include harm resulting from the loss of loved ones due to the earthquake disaster or from physical and psychological health deterioration.

In this lawsuit, the injured party’s fault may lead to a reduction in the amount of compensation. For example, if the injured party caused damage by cutting a supporting column in an independent unit built over a fault line, the damage resulting from the earthquake may be considered as caused by the injured party.

Before filing the administrative lawsuit, the injured party must submit a written application to the relevant administration for compensation. According to Article 13 of Law No. 2577, this application must be made within one year from the date the damage was discovered, and in any case, within five years from the date the damage occurred. The administration must respond to this application within thirty days, either positively or negatively, and may also implicitly reject the application. A lawsuit can be filed within sixty days from the administration’s rejection or implicit rejection.

[1] Relevant Authority: The municipality within the surrounding area boundaries, and the governorship outside those boundaries.