When a building with an occupancy permit (building use permit) is demolished and a new one is built in its place, it is generally unlawful for the municipality to request a retroactive parking receipt. Because, according to Article 37 of Zoning Law No. 3194, an occupancy permit cannot be issued without the parking fee being paid; the existence of an occupancy permit constitutes a legal presumption that the parking obligation has been fulfilled. At this point, the burden of proof shifts from the taxpayer to the administration. In the new building, if the purpose of use has not changed and there is no increase in area, a new fee cannot be demanded; only the difference is calculated for the increased area, and the right of the old building is offset. In practice, the 6th Chamber of the Council of State has produced jurisprudence in favor, while the Joint Chambers of Administrative Courts (İDDK) and the 4th Chamber have produced jurisprudence against; therefore, each case should be evaluated individually.

One of the most common surprises encountered by a rights holder entering the urban transformation process is this: When a building that has been occupied for years, has a condominium title deed, and has an existing parking lot is demolished and a new one is built in its place, the municipality comes forward and says, “kour records do not show a parking payment, please deposit the fee again”. So, can a parking fee genuinely be requested again for a building that has an occupancy permit? In this article, we examine the presumption of payment created by the occupancy permit, how the burden of proof shifts, the offset method applied in case of an increase in square meters, and the cancellation and refund lawsuits to be filed if the municipality insists, in light of current Council of State jurisprudence.

We previously discussed the fee/tax exemption aspect of this issue in detail; for completeness, see What Are the Taxes I Will Not Pay in Urban Transformation? Full Exemption List.

1. Why is the Occupancy Permit a Presumption that “Parking Fee Has Been Paid”?

In Turkish zoning legislation, there is a chain-link connection between parking obligations and the occupancy permit (iskan). The fact that an occupancy permit has been granted for a building is official proof that the building’s parking requirement has either been physically met within its plot or met by paying a fee in a regional parking facility. In other words, the occupancy permit automatically creates a presumption that the parking obligation has been fulfilled.

What does presumption mean? A presumption is a fact accepted as true until proven otherwise. When an occupancy permit is presented, the assumption “the parking fee has been paid” comes into play; the burden of proof for the contrary (i.e., that it was not paid) now rests not with the owner, but with the administration claiming it.

The basis of this presumption has been clearly stated in the established jurisprudence of the 6th Chamber of the Council of State. Indeed, in the decision of Danıştay 6. Daire (E.2018/8078, K.2022/2221, T.24.02.2022); with regard to structures with an occupancy permit, it was emphasized that since it is clear that a building permit and an occupancy permit cannot be issued without the parking fee being paid as per Article 37 of the Zoning Law, it must be accepted that the parking fee has been paid. (ZONING LAW art.37 — CHAIN RULE No parking payment → No permit issued → No occupancy permit issued OCCUPANCY PERMIT EXISTS ⇒ PARKING FEE IS CONSIDERED PAID) The burden of proof now rests with the administration.

2. Legal Basis: Zoning Law art.37 and Parking Regulation

Article 37 of Zoning Law No. 3194 introduces a mandatory provision: A building permit cannot be issued for buildings and facilities requiring parking unless the necessary parking space is allocated, and an occupancy permit (iskan) cannot be granted unless the parking facility is established. This provision is also supported by the Parking Regulation; according to the regulation, a portion of the regional parking fee must be paid during the permit application stage, and the remainder must be paid no later than before the occupancy permit is granted.

The Ministry of Environment, Urbanization and Climate Change has revised the payment schedule and distance rules for parking fees over time; the payment period for the remaining fee, excluding the initial payment made for the regional parking, has been extended provided that it does not exceed the occupancy permit date. (Click for the Ministry’s parking regulation)

Legal consequence: Given that the remaining fee must be paid by the occupancy permit date at the latest, it is an inevitable consequence of the legislation that a structure holding an occupancy permit must have completed its parking obligation. The occupancy permit is proof that this payment has actually been made.

3. The Principle of “Deemed Paid” and Burden of Proof in Urban Transformation

When new buildings are constructed in place of risky structures demolished under Law No. 6306 on the Transformation of Areas Under Disaster Risk, municipalities frequently demand retroactive payment receipts. However, according to the settled jurisprudence of the 6th Chamber of the Council of State:

If the demolished building had an occupancy permit, the parking fee is considered to have been collected previously.

For the administration to request receipts, which should be in its own archives, from the owner or to demand the fee again by stating “payment does not appear in records” constitutes service fault and breach of presumption.

The burden of proof shifts the moment the occupancy permit is submitted; the obligation to prove that the payment was not made now shifts to the administration.

 The municipality’s defense of “no record in the system” is not sufficient on its own. The absence of the old receipt is an archival fault of the administration; this fault is not accepted as evidence that refutes the presumption. The owner cannot be expected to have kept a receipt from years ago.

4. The Phrase “Received”: Collection or a Legally Required Process?

One of the key points of the dispute is how the phrase “fees and charges previously collected” in the legislation should be interpreted. Municipalities prefer to read this narrowly as “actually collected”. However, a purposive interpretation is different:

The term “received” here should not be interpreted merely as “money actually entered into the cash register”; but rather as “a legally required process culminating in an occupancy permit”. In a structure completed with an occupancy permit, the parking fee is legally considered already received. A contrary interpretation would lead to the duplicate collection of the fee, contrary to the objective of promoting urban transformation.

5. Square Meter Increase, Re-request for Fee, and Offset Method

Article 7, paragraph 9 of Law No. 6306 stipulates that, in addition to fees and charges previously collected for the existing areas of risky structures, a difference may be collected only for changes in use purpose and increases in building area. The implementation principles derived from this are as follows:

Offsetting Principle: From the amount of parking required for the new structure, the fee/parking right considered paid for the old structure is deducted. In other words, the calculation is not based on “full cost from scratch” but on the net increase. If the increase is within the 1.5 times limit stated in Law No. 6306, the parking right of the old building with an occupancy permit must be offset against the new building.

For the general framework of offset and refund discussions on this topic, also see our article titled I Don’t Want to Participate in Urban Transformation — Can My Share Be Sold Forcibly? and our main guide on Urban Transformation.

6. Counter Jurisprudence: The IDDK and the 4th Chamber’s Adverse Stance

The issue does not follow a single line in the judiciary. Alleging that the parking fee was removed from the exemption list with the regulation amendment dated 21.06.2019, there are also decisions that partially find municipalities justified in demanding the full fee, even if the square footage does not increase, on the grounds that it constitutes a “new construction activity” . In some decisions of the 4th Chamber of the Council of State and the Board of Administrative Case Chambers (IDDK), there are views that the parking fee is not explicitly listed among the fee and charge exemptions in Law No. 6306, and therefore its collection may be lawful.

In contrast, the 6th Chamber of the Council of State emphasizes that interpretations narrowing exemptions should be avoided in line with the purpose of urban transformation, and the parking fee should be considered within the scope of exemption. In some decisions of the IDDK, however, a middle ground has been adopted; it has been stated that if the risky structure is rebuilt exactly as it was, no new fee will be paid, but if there is an increase in area causing a population increase, only this difference should be calculated.

Practical assessment: Since there is no unity in case law, the outcome may vary depending on the occupancy permit status of your building, whether its purpose of use has changed, whether the area increase remains within the 1.5-fold limit, and which department/court your file will be brought before. Therefore, it is not correct to make a general “you will definitely win” assessment; each file must be evaluated with its own evidence.

7. What to Do? Annulment of the Transaction and Refund of the Paid Amount

The course of action to be followed if the municipality re-accrues the full parking fee for a building with an occupancy permit is as follows:

Written application: Apply to the municipality with a petition; submit the building’s old occupancy permit (building use permit) and state that the parking fee is deemed paid according to Article 37 of the Zoning Law, and that the burden of proof rests with the administration.

Annulment of accrual: If your request is rejected, file a lawsuit in administrative court (administrative or tax court) within the prescribed period for the annulment of the administrative act in the nature of an accrual/payment order.

Refund request: If you were compelled to pay the fee to obtain an occupancy permit, make a “payment with reservation” and also request the refund of the paid amount. Making the payment with reservation is important for a refund lawsuit.

Time limit warning: The time limits for filing lawsuits against administrative actions and for refund applications are limited and are preclusive. It is critically important to consult a lawyer immediately upon receiving an accrual/payment order to avoid missing the deadline. Protect Your Occupancy Permitted Building’s Parking Right. In annulment and refund cases, the burden of proof rests with the administration — the correct petition makes a difference

8. Why is Expert Lawyer Support Necessary?

Parking fee disputes in urban transformation involve technical stages such as proving occupancy status, payment with reservation, cancellation of accrual, and filing a refund lawsuit in the correct court and within the legal period. Due to conflicting case law, the structuring of the petition with correct legal grounds (presumption under Zoning Law Art. 37, offset principle under Law 6306 Art. 7/9, current Council of State decisions) directly affects the outcome.

As 2M Law Office, we provide consultancy and litigation services throughout Turkey and primarily in Istanbul, including the districts of Tuzla, Pendik, Kartal, Maltepe, Ümraniye, Ataşehir, Kadıköy, Sancaktepe, Küçükçekmece, and in the Kocaeli (Gebze, Darıca) regions, in the fields of urban transformation law, risky building processes, and disputes regarding fees and parking charges.

To secure your process and protect your occupied building’s parking rights, you can contact our team: 2M Law Office — Our Lawyer Team (Att. Meryem Günay).

Frequently Asked Questions (FAQ)

We demolished our building with an occupancy permit; the municipality is requesting the parking fee again. Do I have to pay?

As a rule, no. The existence of an occupancy permit is a legal presumption that the parking fee has been paid. Unless the administration proves otherwise (that it has not been paid), it cannot demand a receipt or a new payment from you. Due to conflicting case law, it is recommended that your specific case be evaluated by a lawyer.

I can’t find the old parking receipt, and the municipality says “it’s not on record.” Is this against me?

No. The absence of the receipt in the archive is the administration’s own fault and does not overturn the presumption. You cannot be expected to have kept a receipt from years ago. Presenting the occupancy permit is sufficient to shift the burden of proof to the administration.

The new building will be larger than the old one. Will the parking fee not be paid at all?

If there is an increase in area, the difference is calculated not as “full price from scratch” but only for the increased portion, and the parking right of the old building is offset. If the purpose of use is the same and the increase is within the 1.5 times limit, the offsetting of the old right against the new building comes into question.

If I don’t pay the fee, I can’t get the occupancy permit. What should I do?

To avoid delaying the occupancy permit, you can pay the fee by making a “reservation” (ihtirazi kayıt) and then file a lawsuit in administrative court for the cancellation of the accrual and the refund of the paid amount. The “reservation” is important for your refund request; therefore, consult your lawyer before payment.

Is the case law entirely in our favor on this matter?

There is no complete unity of case law. While the 6th Chamber of the Council of State largely rules in favor of the owner, some decisions by the Council of State’s Administrative Cases General Assembly (İDDK) and the 4th Chamber contain opinions in favor of municipalities. The outcome; may vary depending on the occupancy permit status, purpose of use, area increase, and the chamber where the case will be heard.

In which court should I file the lawsuit?

Against the parking fee accrual/payment order, an administrative court or a tax court may be competent, depending on the nature of the transaction. Correctly determining the competent court and the lawsuit period is critical to prevent loss of rights; this evaluation must absolutely be done with a lawyer.

Legal Disclaimer: This article is for general informational purposes only and does not constitute legal advice. Since there is no unity of jurisprudence in parking fee disputes, your specific situation must be evaluated by a lawyer, and decision details must be confirmed from current official sources. It is recommended to consult an expert lawyer before taking any action regarding your specific case.

Tags: parking fee for building with occupancy permit, urban transformation parking fee, presumption of paid parking fee, parking under Law No. 6306, parking under Article 37 of the Zoning Law, parking fee refund lawsuit, urban transformation offset, Tuzla urban transformation lawyer, Istanbul urban transformation lawyer, Council of State parking fee decision