This memorandum examines various possibilities regarding the compensation for damages caused by the destruction or collapse of buildings due to earthquakes, such as death, injury, and the destruction of movable or immovable property.

1. Responsibility for Compensation Payment Under the Liability of the Owner of the Real Property

Due to the recent earthquakes in our country, thousands of buildings have collapsed, and tens of thousands have become unusable. In the event of the collapse or damage of buildings due to the earthquake, it is possible to claim compensation from the owner of the building [apartment, office, shop, etc.] under certain conditions. The fact that the building is still under construction is irrelevant in this case.

According to Article 69/1 of the Turkish Code of Obligations [TCO], the owner of a building or other structure is responsible for damages arising from defects in its construction or deficiencies in its maintenance. In order for the responsibility defined in the relevant provision to arise, it is not necessary for the owner to be at fault. The owner is responsible for damages caused by construction defects or maintenance deficiencies, even if the degree of fault is not present.

No evidence is provided for the owner to relieve themselves of this responsibility. Therefore, if the damage arises from construction defects or maintenance deficiencies, the owner cannot be freed from liability even if they prove that they took all the necessary precautions for the construction and maintenance of the building to prevent the damage.

What is important here is the causal link between the damage that occurred and the construction defect or maintenance deficiency of the structure. In other words, the damage must be caused by a defect in the construction or a deficiency in maintenance of the structure. In cases such as force majeure, the fault of the damaged party, or the severe fault of a third party, no link can be established between the damage and the construction defect or maintenance deficiency, and therefore, no claim for compensation can be made.

In the earthquake, the owner must be held liable for the damages caused by the damage to the building they own under the principle of strict liability. According to the case law of the Court of Cassation, earthquakes that occur at a level that does not constitute force majeure will not break the causal link.

In order for the responsibility of the building owner to arise, there is no need for a contractual relationship such as tenant-landlord, operator-customer, or employer-employee between the damaged party and the building owner. Therefore, after an earthquake, if the building owner [the building/apartment owner] causes damage due to construction defects or maintenance deficiencies, compensation for damage caused by destruction in the building can be claimed from the owner.

According to Article 72 of the TCO, the compensation must be claimed within two years from the date the damaged party learns of the damage and the liability for compensation, and in any case, within ten years from the date of the act. However, if the compensation arises from an offense that is punishable under criminal law and subject to a longer limitation period, this limitation period applies.

If there is a separate landlord-tenant relationship between the building owner and the damaged party, in this case, competition of rights will occur. In other words, the tenant may resort to both the provisions on the responsibility of the building owner under Article 69 of the TCO and the contractual responsibility provisions within the lease agreement.

If the building owner is required to pay compensation in such a case, according to Article 69/3 of the TCO, the building owner may recourse to the person who is responsible for the damages. The persons to whom recourse can be made may vary depending on the specific case, but the architect, contractor, or engineers involved in the construction process may also be targeted for recourse. The building owner may also recourse to the previous owner who sold the property to them under a warranty obligation. Additionally, if a third party was assigned the maintenance of the building, recourse can be made to them as well. Finally, since these persons are jointly responsible for the damage with the owner, the damaged party may also file a direct compensation lawsuit against them.

2. Rights the New Owner of the Real Property Can Assert Against the Previous Owner

Due to the destruction caused by the earthquake, the new owner of the property may have some rights against the previous owner within the scope of the warranty provisions. In this regard, the seller is liable for the absence of any characteristics that they notified to the buyer regarding the property. Moreover, the seller is also responsible for any hidden defects that reduce the value of the property or eliminate the benefits the buyer expects from it, and those that do not comply with its intended use.

The new owner who has suffered damage due to the destruction or collapse of the building caused by a defect can claim compensation for the damage under the warranty provisions in the TCO.

If a hidden defect is discovered in the property after the purchase, the defect must be reported to the seller immediately. Otherwise, the buyer is considered to have accepted the property with that defect. In the case law of the Court of Cassation, defects caused by an earthquake are considered to be hidden defects.

Under the Consumer Protection Law No. 6502, the liability for defects in real property sales contracts is defined as five years from the delivery date of the property. Furthermore, in relation to defects discovered within a specific time after delivery, the burden of proof is reversed, and within this period, the seller must prove that the property is not defective. Lastly, no statute of limitations applies to defects hidden through gross negligence or fraud.

3. The Contractor's Liability for Damages to the Building Caused by the Earthquake

The contractor [builder] responsible for the construction of the property is obliged to build the property in accordance with the rules of science and art, as well as in compliance with zoning regulations. The contractor is responsible under the warranty provisions in the construction contract for the damages caused by the deficient, incorrect, or faulty construction of the property due to the earthquake.

In construction contracts, fault liability is the principle for the contractor. Lawsuits regarding the contractor's liability for defects are subject to the limitation periods specified in Article 478 of the TCO. Lawsuits for defective works other than real estate structures are subject to a two-year statute of limitations. For real estate buildings, this period is five years. However, if the contractor's fault is gross, the statute of limitations will be 20 years, regardless of the defect type. The statute of limitations begins from the delivery of the defective work.

Additionally, the contractor has tortious liability if they construct a building with construction flaws and fail to comply with the project and application rules for buildings in earthquake zones. Therefore, the contractor is also liable under tort law to third parties who purchase the property from the owner. In this case, the two- and ten-year limitation periods for tort will begin from the date the earthquake-caused damage occurs.

However, the contractor's responsibility must be evaluated based on the applicable regulations at the time of construction and delivery. Even if the property was built in accordance with zoning plans and regulations, if the earthquake's intensity is such that damage to the building is inevitable, a reduction in the compensation amount will be required. Therefore, the contractor's liability must be evaluated separately for each case.