While Urban Transformation practices, which entered Turkish Law and our daily lives in 2012 with the LAW No. 6306 ON THE TRANSFORMATION OF AREAS UNDER DISASTER RISK, aim to serve the development of the country and provide citizens with new and durable buildings, frequent problems are encountered in the applications.
Within the scope of Urban Transformation, if a decision is made on the reconstruction of the building with at least 2/3 majority of the owners, offers from various contractor companies are evaluated and again, with the decision of at least 2/3 majority, the building is demolished by one of these companies and rebuilt in accordance with the project accepted under the agreed conditions. .
However, the problems that the owners are likely to encounter do not end with the delivery of the building to them, and after the delivery, there are losses caused by the contractor handing over the building as defective. First of all, it should be noted that the Construction Contract in Exchange for Land Share Transfer, signed between the contractor and the owners, is a work contract according to our law. This contract brings certain rights and obligations to both parties, and the most important obligations of the contractor, who is the contractor, is to deliver the building completely and on time, free from any defects.
In order for the contractor to be legally responsible for delivering the building as defective, certain conditions must be met, these conditions are;
Delivery of the building to the owners: In contracts made within the scope of Urban Transformation, the delivery is generally tied to a delivery-receipt report prepared by the parties. Therefore, the blackout periods arising from defects begin to run as of the signature date of this report.
The building has been delivered with defects: Again, in Urban Transformation applications, before signing the delivery-receipt report, the owners have the right to inspect the building and check whether there are any obvious defects and whether the building has been built under the conditions agreed in the contract. If defective or non-contractual manufacturing is detected, the owners may refrain from paying their remaining debts and/or taking delivery of the building. If the defect is of a size that can be seen and noticed immediately during the inspection during delivery, it is a Hidden Defect.
Owners' Rights in Case of Defective Delivery:
Whether it is an obvious defect detected upon delivery of the building or a hidden defect that emerges later with use, flat owners must first notify the contractor of the situation after the defect is detected. Periods for notification can be freely regulated in the Construction Contract in Exchange for Land Share.
The law grants optional rights to the owners in case the defect is not remedied even though the contractor is notified and a reasonable period of time is given (within this period if agreed upon by the contract) to rectify the defect. These optional rights are:
right to withdraw from the contract.
The right to a reduction in the fee. (In Urban Transformation, the contractor will not be able to find practical application since he/she builds in return for land share (floor)).
The right to request the removal of the defect
The right to request compensation for damages arising from the defect.
If the contractor does not correct the defect within the reasonable time given to him, the owners must first register the defect in the building by filing a declaratory lawsuit, and then provide compensation by filing a lawsuit by documenting the expenses he has made to eliminate this defect. The statute of limitations for compensation claims filed for hidden defects in immovable buildings is 5 years from the date of delivery.
Problems encountered in practice after the delivery of the building are mostly related to hidden defects. As CVG Law Firm, we recommend that the agreement to be signed with the contractor within the scope of Urban Transformation is prevented by adding protective clauses such as an additional letter of guarantee for defects for at least 2 years, valid after delivery, to prevent possible problems arising from hidden defects.
For More Detailed Information:
info@cvghukuk.com
Atty. I. Can Çayırpare email: can.cayirpare@cvghukuk.com Tel: 0532 474 30 35
Av. B. Güven Cem email: guven.cem@cvghukuk.com Tel: 0533 740 86 28
Av. Volkan Önkibar email: volkan.onkibar@cvghukuk.com Tel: 0535 662 61 06
