Loss of property due to limitation. Violation of the right to property

JUDGMENT

Elif Kızıl v. Turkey 24.03.2020 (no. 4601/06)

see here .

SUMMARY

The applicant purchased a property which she recorded in the land register. One year after the registration, her ownership became public ownership on the ground that the land was registered as an unknown owner. The applicant was informed of the registration when the deadline for claiming her property had expired. The domestic Courts irrevocably dismissed her action as time-barred.

The ECtHR found that although the commencement of the cadastral project had been announced, it was not guaranteed that the applicant was informed. Nor was the Government able to provide any evidence which could reasonably be used to ascertain that the applicant was aware of the cadastral works and their contents.

The Court therefore concluded that the authorities had not taken all lawful measures to inform the applicant of the loss of her property and held that the fair balance sought by the Convention had been disrupted. Violation of Article 1 of the First Protocol.

PROVISION

Article  1 of the First Additional Protocol

PRINCIPAL FACTS

The applicant, Elif Kızıl, was a Turkish national who was born in 1934. She lived in Kırşehir (Turkey)
until her death. Ms Kızıl’s four heirs wished to continue the application before the Court.

The case concerned the loss of ownership of a property which Ms Kızıl purchased in 1973 following a
revision of the land register in 1974.

In 1973 Ms Kızıl bought a piece of real estate. She was issued with a document of title registered in
the Land Registry. The following year, during the revision of the land register, the property was
entered for the benefit of the Treasury on the grounds that the name of the owner had not been traced. At the time Ms Kızıl was living in Germany with her husband. She was allegedly not informed
of the situation until 2002, when the authorities asked her to pay compensation for occupation. Up
until that date, according to the applicant herself and also to the Court of First Instance (CFI), she
had retained her peaceful enjoyment of her property.

In 2003 Ms Kızıl lodged an action to cancel the registration for the benefit of the Treasury, and
requested the re-registration of the property as belonging to her, pointing out that she had never
been informed of the revision of the land register and had only been apprised of the outcome of the
revision at the Land Registry in 2002. The CFI allowed her action.

In 2004 the Court of Cassation quashed the first-instance judgment on the grounds that Ms Kızıl’s
action had been intended to change the outcome of the Land Registry revision in 1974 and that it
had been lodged after the 10-year time-limit laid down in the Land Registry Act which had come into
force in 1987. The CFI complied with that judgment and dismissed Ms Kızıl’s action. The judgment
became final in 2005.

Relying on Article 1 of Protocol No. 1 (protection of property), Ms Kızıl complained that it had not
been possible to object to the loss of her property as she had not been informed of it until 2002

THE DECISION OF THE COURT…

The Court recalls that, according to its case-law, Article 1 of the First Protocol, which essentially guarantees the right to property, comprises three different standards: the first, which is expressed in the first sentence of the first paragraph and is of a general nature, provides: the principle of respect for property, the second, contained in the second sentence of the same paragraph, concerns deprivation of property and is subject to certain conditions. The third, referred to in the second subparagraph, recognizes that the Contracting States have the power, inter alia, to regulate the use of property in the general interest.

Article 1 of the First Protocol essentially seeks to protect the individual from any interference by the State with the peaceful enjoyment of his/her possessions.

The Court observes that the introduction of a period beyond which rights are expired – and new titles are registered – aims to guarantee the security of real estate transactions, which is undoubtedly an important objective of general interest.

As to the applicant’s interests, the Court noted that the latter had registered her title to the land register in 1973, less than a year before definitive land registration, and was eventually found to have been deprived of her property.

In addition, she was unable to assert her rights by challenging this measure before the courts because of the limitation period. At this point, it should be noted that the applicant was neither notified of the commencement of the cadastral project nor of the final cadastral survey. She claims that she was informed of the registration of her property as a Treasury asset only in 2002, a date when, according to herself and according to TGI, she was still enjoying her property peacefully.

In this context, the Court reiterates that the applicable procedures must also provide the person concerned with an adequate opportunity to present his/her case to the competent authorities in order to effectively challenge measures which infringe his/her right to property.

In the present case, it must therefore be examined whether the applicant knew or ought to have known the cadastral post and that the cadastral registration had ignored the title to the property which had the effect of rendering it unrecognized.

Although it was true that the commencement of the cadastral work had been announced, that the work in question had been publicized and that these measures had made it possible for the public to be widely publicized, there was no guarantee that the applicant had in fact been informed. The same applies to the posting of the final cadastre.

It also considers that the Government were unable to provide any evidence that could reasonably be used to ascertain that the applicant was aware of the cadastral works and their contents or could not have ignored their existence. In addition, the Court reiterated that the authorities did not appear to have taken steps to trace and inform the applicant, even if the inscription on the Treasury name in 1974 had a precautionary purpose.

The Government admitted, of course, that a third party, in this case a neighbor, had made use of the property and had attempted to obtain it from the State Treasury, thus concluding that the applicant had left the property because she would know that it was no longer  landlord in the land register.

The Court first observes that the evidence does not allow it to be established whether the neighbor had used the land with or without the applicant’s consent. It further notes that the national court found that the applicant had been in peaceful and uninterrupted possession of the property since 1973 and that this was not disputed by the Court of First Instance. It sees no serious grounds for departing from the facts of the national courts on this point.

It also considers that the Government were unable to provide any evidence that could reasonably be used to ascertain that the applicant was aware of the cadastral works and their contents or could not have ignored their existence. In addition, the Court reiterated that the authorities did not appear to have taken steps to trace and inform the applicant, even if the inscription on the Treasury name in 1974 had a precautionary purpose.

The Government admitted, of course, that a third party, in this case a neighbor, had made use of the property and had attempted to obtain it from the State Treasury, thus concluding that the applicant had left the property because he would know that it was no longer available. the landlord in the land register.

The Court first observes that the evidence does not allow it to be established whether the neighbor had used the land with or without the applicant’s consent. It further notes that the national court found that the applicant had been in peaceful and uninterrupted possession of the property since 1973 and that this was not disputed by the Court of First Instance. It sees no serious grounds for departing from the facts of the national courts on this point.

In any event, the fact that the land had been used for some time by one of its neighbors, with or without the applicant’s consent, and that the person concerned had sought to claim the property, is not sufficient to establish that the applicant had been aware of it. of the 1974 Land Registry and its consequences.

The same is true of the fact that the applicant signed on the day following the date on which she claimed to have been informed of the situation, requesting the recovery of her property from  the administration. It does not in any way prove that the applicant was aware of the facts at issue well before the information was provided to the State.

Therefore, there is nothing to indicate that the applicant knew or ought to have been aware of the registration of her property as a property of the Ministry of Finance before being informed by administrative officials in 2002 or that the authorities had taken all measures to identify the rightful holder and let him know.

In the light of all these considerations, the Court considers that the fair balance sought by the Convention was disturbed by the applicant and found that it had violated its right to property (Article 1 of the First Protocol).

Just satisfaction: Ms Kızıl did not submit a claim for just satisfaction

 


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