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An action for determination of ownership of structures/improvements (muhdesat aidiyet tespit davası) is a declaratory action filed to have a court establish who created the integral components on an immovable property, such as buildings, facilities or trees. This action does not change the ownership of the immovable property; however, it ensures a fair distribution of the sale price during the dissolution of joint ownership or expropriation processes.
This guide comprehensively examines the legal nature, conditions for filing, competent court, methods of proof and litigation costs of actions for determination of ownership of improvements, which are frequently the subject of disputes in the Antalya region, in the light of recent Court of Cassation (Yargıtay) decisions.
What Is an Action for Determination of Ownership of Improvements?
An action for determination of ownership of improvements is a declaratory action seeking a court's finding that the permanent structures, facilities or planted trees located on an immovable property were created by someone other than the owner of the immovable or the other co-owners. The action does not change the ownership of the immovable; it merely establishes the existence of a fact and, particularly in the dissolution of joint ownership or expropriation processes, ensures a fair distribution of the sale price.
The Legal Nature of Improvements (Muhdesat)
In legal literature and judicial practice, "muhdesat" (improvements) refers to permanent structures built on land by someone other than the owner of that land, or by one of the co-owners in an immovable subject to shared ownership, as well as planted trees, vineyards and gardens. The most defining characteristic of an improvement is that it has established a permanent bond with the immovable and constitutes an element that increases the economic value of the immovable. Within the framework of property law principles, an improvement is accepted as an integral component (mütemmim cüz).
An integral component is an element that, when detached from the thing to which it belongs, ceases to exist, is damaged or loses its character, or damages the thing to which it belongs. Permanent structures, trees and facilities on an immovable are deemed to be of this nature and are subject to the ownership of the immovable.
The Criterion of Permanence and Removability
For a structure or plant to be characterized as an improvement, the criterion of permanence is essential. Elements located on the immovable but which are removable in nature and can be separated without damaging the essence of the immovable are not assessed within the scope of improvements. Recent decisions of the Court of Cassation (Yargıtay) have concretely drawn the boundaries of this distinction.
Court of Cassation (Yargıtay), 7th Civil Chamber, Judgment dated 19.09.2024, Case No. 2024/2667, Decision No. 2024/4007Elements such as a triplex residential structure, building outbuildings, a storehouse, a water tank, wire fencing and posts, a pergola, a coop, an animal shelter, a garage, a fountain, a lighting system, a vine-growing area and a grass field qualify as improvements. On the other hand, it was ruled that a decorative garden gate with a wooden roof, interlocking paving stones, an ornamental pool and curbstones do not qualify as improvements because they are removable, and that excavation and landscaping works are of a remedial and complementary nature.
Improvements Within the Framework of the Turkish Civil Code
The provisions of the Turkish Civil Code (Türk Medeni Kanunu) governing the scope of ownership form the fundamental starting point for resolving disputes over improvements. Pursuant to Article 718 of the Turkish Civil Code (TMK), ownership of land encompasses the airspace above and the ground layers below to the extent that there is benefit in their use, and, subject to statutory restrictions, this scope of ownership also includes permanent structures, plants and springs. This provision is the codified form of the superficies solo cedit (that which is built on the surface is subject to the land) principle that has persisted since Roman law.
Pursuant to Article 684/1 of the Turkish Civil Code (TMK), a person who owns a thing also owns its integral components. As a result of the combination of these two provisions, it is legally impossible for an improvement to be the subject of an independent ownership right separate from the ownership of the immovable.
An improvement does not grant its owner any ownership or limited right in rem independent of the ownership of the land. The right of the owner of an improvement is merely a personal right, and this right materializes as a claim for an economic amount in the event that the immovable changes hands or joint ownership is dissolved.
When Is an Action for Determination of Ownership of Improvements Filed?
An action for determination of ownership of improvements is not an action that can be filed at any time and under any circumstances. Pursuant to the second paragraph of Article 106 of the Code of Civil Procedure (Hukuk Muhakemeleri Kanunu), for a declaratory action to be filed, the plaintiff must have a current legal interest worthy of legal protection in filing this action. The mere desire to prove that a structure was built by oneself does not, on its own, constitute a legal interest.
The Condition of a Current Legal Interest
For a legal interest to exist, a right of the plaintiff must be at risk, this risk must be of a nature that can only be eliminated by a court decision, and the declaratory judgment must be capable of removing this risk. Filing an action today based on the possibility that the immovable may be sold in the future, while no liquidation process has yet begun, is contrary to the currency criterion and leads to the dismissal of the action on procedural grounds.
Court of Cassation (Yargıtay), 8th Civil Chamber, Judgment dated 18.06.2015, Case No. 2014/10675, Decision No. 2015/13368An action for determination of ownership of improvements, as a declaratory action, is filed and heard where a current legal interest exists within the meaning of Article 106 of the Code of Civil Procedure. The action does not produce a result concerning the substance of the immovable's title; it is limited solely to the establishment of an existing fact.
Dissolution of Joint Ownership, Expropriation and Urban Transformation
There are three fundamental situations in which a current legal interest is most clearly recognized: a pending action for dissolution of joint ownership, an expropriation proceeding, and urban transformation practices. Actions for improvements filed outside these three situations are, as a rule, dismissed on procedural grounds for lack of a legal interest.
The tourism-zone construction and urban transformation projects in Antalya create an important legal-interest basis for actions concerning improvements, due to practices within the scope of Law No. 6306 on the Transformation of Areas Under Disaster Risk. Particularly in zoning changes along the coastline and in tourism-oriented real estate projects, the ability of one co-owner to receive a share of the value of structures they personally built depends on a determination-of-ownership decision.
Court of Cassation (Yargıtay), 8th Civil Chamber, Judgment dated 16.02.2015, Case No. 2014/4692, Decision No. 2015/4239Where an action for the dissolution of joint ownership exists in respect of an immovable subject to shared or joint ownership, one of the co-owners or joint owners may file an action for a determination that the improvement on the immovable was created by them, thereby ensuring that this is reflected in the sale proceeds in the action for the dissolution of joint ownership.
In the expropriation process, pursuant to Article 19 of Expropriation Law No. 2942, in the expropriation of a place registered in the name of another, the minimum material value of the buildings and the appraised value of the trees are paid to the possessor. For this payment to be made, the ownership must have been established by a court decision.
Competent Court by Subject Matter and by Venue
In actions for determination of ownership of improvements, the court competent by subject matter is, pursuant to the general provisions of the Code of Civil Procedure, the Civil Court of First Instance (Asliye Hukuk Mahkemesi). Although the action concerns rights over assets, because it does not involve a request for registration of ownership, the Civil Court of First Instance is competent regardless of the value of the action. The court competent by venue, pursuant to Article 12 of the Code of Civil Procedure, is the court of the place where the immovable is located, and this is a rule of exclusive venue.
Actions concerning improvements relating to immovables located within the boundaries of Antalya may only be filed before the Antalya Civil Courts of First Instance; an action filed before the court of another place is dismissed for lack of venue. In these proceedings conducted at the Antalya Courthouse, filing the case in accordance with the cadastral information of the immovable and the co-ownership structure prevents delays in the proceedings.
How Are the Parties to the Action Determined?
In terms of the proper defendant, the most critical procedural step is filing the action against the correct persons. As a rule, an action for determination of ownership of improvements must be filed against all co-owners of the immovable. However, co-owners who expressly acknowledge that the improvement was created by the plaintiff and do not raise a dispute need not be named as parties to the action.
Court of Cassation (Yargıtay), 8th Civil Chamber, Judgment dated 25.06.2015, Case No. 2014/11781, Decision No. 2015/13988For a declaratory judgment to be rendered, it must be proven beyond doubt by whom the items in dispute were created. It is not correct to render a determination-of-ownership decision in the operative part of the judgment stating that the ownership of the improvement belongs to the plaintiff; the decision must remain limited solely to the determination that the improvement was created by the plaintiff.
Another important matter in determining the parties concerns changes in the ownership structure of the immovable. If a co-owner transfers their share after the action is filed, the new owner must be joined to the action pursuant to Articles 124 and 125 of the Code of Civil Procedure. For this reason, obtaining an up-to-date registry extract from the Antalya Land Registry Directorate (Antalya Tapu Sicil Müdürlüğü) immediately before filing the action, and correctly identifying all rightholders, is mandatory.
Ownership Disputes in Shared and Joint Ownership
The area where disputes over improvements are most intense is situations of shared ownership or joint ownership, where more than one person holds rights over the same immovable. In such structures, one of the co-owners may, with or without the consent of the others, build a structure or plant trees on part of the immovable.
Especially in the olive, citrus and vegetable gardens in the Antalya countryside and in agricultural lands transferred by inheritance, the additions made to the immovable by one of the heirs while the decedent was alive or after their death form the basis of ownership disputes. In such cases, the burden of proof is heavy; because if one of the co-owners cannot on their own prove the claim of construction, a presumption may arise that the structure was built by the common decedent.
Methods of Proof and Evidence
In actions for determination of ownership of improvements, the burden of proof lies with the plaintiff. The plaintiff is obliged to prove beyond doubt that the improvement was created by their own means, in their own name and on their own account. Pursuant to Article 190 of the Code of Civil Procedure and Article 6 of the Turkish Civil Code, if this burden cannot be discharged, dismissal of the action is inevitable.
Official Records, Permits and Invoices
Foremost among the means of proof are building permits, occupancy permits (iskân), the names appearing as owner/responsible person in construction projects, along with material invoices, transport receipts, and bank receipts relating to payments for craftsmen and labor. It is of great importance that the materials contained in invoices issued in the plaintiff's name are consistent with the structure that is the subject of the action in terms of quantity and quality.
The fact that electricity, water and natural gas subscription records are in the plaintiff's name is also a beginning of evidence; however, although subscriptions indicate the person actually using the structure, they may not always accurately reflect the person who built the structure. For this reason, subscription records alone are not deemed sufficient and must be supported by other corroborating evidence.
Expert Examination
In order to technically determine the nature and age of the structure and by whom it was built, the court conducts an on-site inspection (keşif) and appoints a surveying expert, a construction engineer and, depending on the nature of the immovable, an agricultural expert. The surveying expert prepares a sketch showing the location of the improvement, the area it occupies in m² and its boundaries. The construction expert determines the approximate construction date by examining the depreciation of the structure, the materials used and the construction technology. The agricultural expert, by examining the age, species and planting distances of the trees, forms an opinion on the planting period.
Witness Statements
In situations where official records are insufficient or where the improvement was created in earlier times, witness statements constitute the most critical link in the proof process. The statements of neighbors who witnessed the construction process, the village headman (muhtar), craftsmen who worked on the construction, and local persons who know the period when the trees were planted play a key role. However, for witness statements to be relied upon as the basis of the judgment, they must be consistent with the concrete facts, free of contradiction, and based on observation rather than hearsay.
Elements Qualifying as Improvements and Those Excluded
The recent case law of the Court of Cassation (Yargıtay) clearly distinguishes between elements deemed and not deemed to be improvements. The table below summarizes which items will be taken into account when valuation is carried out in the expert examination.
| Criterion | Elements Deemed Improvements | Elements Not Deemed Improvements |
|---|---|---|
| Structures | Residence, triplex structure, building outbuildings, storehouse, garage, water tank, coop, animal shelter, fountain | Prefabricated structure, removable structures |
| Garden Elements | Wire fencing and posts, pergola, vine-growing area, grass field, lighting system | Decorative garden gate with wooden roof, ornamental pool, curbstone |
| Groundworks | Permanent concrete road, wall, foundation | Interlocking paving stones, excavation, landscaping work |
| Plants | Planted fruit trees, olive, citrus, vineyard | Annual plants, temporary potted plants |
| Determining Criterion | Permanent and integral-component character | Removability / complementary nature |
Value of the Action, Court Fees and Attorney's Fees
In actions concerning improvements, the value of the action is not the value of the entire improvement, but the value of the improvement corresponding to the share of the defendants. This rule directly affects both the amount of the court fee and the opposing party's attorney's fee. For example, in an immovable containing a structure worth TRY 100,000, if the plaintiff's share is 50 percent and the defendants' total share is 50 percent, the fee-based value of the action is accepted as TRY 50,000.
Court of Cassation (Yargıtay), 8th Civil Chamber, Judgment dated 29.02.2016, Case No. 2014/16283, Decision No. 2016/3577The court fee and attorney's fee to be adjudicated at the conclusion of the proceedings must be calculated over the value of the improvement corresponding to the defendant party's share in the immovable and excluding the value of the land. Collecting the fee over the full value or adjudicating an attorney's fee over the full value is a ground for reversal.
In the expert examination, the basis is not the costs at the date the structure was built, but the current market values at the date of the on-site inspection. In carrying out the valuation, the depreciation of the structure, amortization and incomplete works are taken into account; elements that do not qualify as improvements are excluded from the calculation.
Procedural Errors to Be Avoided
The most common errors in actions concerning improvements are: leaving the composition of parties incomplete, using the expression "determination of ownership" in the operative part of the judgment, failure to concretize the current legal interest, and paying the fee over the full value. Before filing the action, all hearing minutes and pleadings in the dissolution-of-joint-ownership file must be examined meticulously, and only the co-owners who object or remain silent should be named as defendants.
In the statement of claim and the relief sought, the expression "registration of ownership as belonging to the plaintiff" should not be used; rather, the expression "determination that the improvement was created by the plaintiff" should be used. Otherwise, the decision becomes subject to reversal.
Frequently Asked Questions About the Action for Determination of Ownership of Improvements
Are the action for determination of ownership of improvements and the action for annulment of title the same thing?
No, these two actions are entirely different from one another. An action for annulment of title (tapu iptali) is an action concerning a right in rem over the ownership of the immovable, and if successful, the title record changes. An action for determination of ownership of improvements, however, is merely a declaratory action; it does not change the ownership of the immovable, it only establishes by whom the structure was built and plays a role in the distribution of the sale price.
Can an action for determination of ownership of improvements be filed without an action for dissolution of joint ownership being filed?
As a rule, no. Due to the condition of a current legal interest, the action may only be filed when there is a pending action for dissolution of joint ownership, an expropriation proceeding or an urban transformation practice. If none of these three situations exists, the action is dismissed on procedural grounds for lack of a legal interest.
Which court is competent by subject matter in an action for determination of ownership of improvements?
The court competent by subject matter is the Civil Court of First Instance (Asliye Hukuk Mahkemesi), and this rule is independent of the value of the action. The court competent by venue is the court of the place where the immovable is located; this is a rule of exclusive venue, and an action filed before the court of another place is dismissed for lack of venue.
Is it also necessary to file the action against co-owners who acknowledge the improvement?
No. There is no legal interest in filing an action against co-owners who expressly acknowledge that the improvement was created by the plaintiff and do not raise a dispute. Actions filed against such persons are dismissed on procedural grounds for lack of a legal interest; only the co-owners who do not acknowledge it or remain silent should be named as defendants.
Are removable structures deemed to be improvements?
No. According to the settled case law of the Court of Cassation (Yargıtay), the criterion of permanence is essential. Removable elements such as prefabricated structures, a decorative garden gate with a wooden roof, interlocking paving stones, an ornamental pool and curbstones do not qualify as improvements; they are excluded from the calculation in the expert valuation.
How is the court fee calculated in an action for improvements?
The court fee and attorney's fee are calculated not over the value of the entire improvement, but over the value of the improvement corresponding to the defendant party's share in the immovable and excluding the value of the land. Paying the fee over the full value is a ground for reversal; completing the fee over the value determined after the on-site inspection is mandatory.
How do I prove who created the improvement?
The means of proof include the building permit, occupancy permit, material invoices, bank receipts paid for construction labor, electricity-water subscription records and witness statements. These means are assessed not individually but together. During the expert examination, the age and materials of the structure and the period of the planted trees are examined technically, and the consistency of the submitted evidence with the material reality is investigated.
