Contractor Selection and the Execution of a Construction Contract in Return for Land Share
Legal Basis: Law No. 6306 Article 6 – Implementation Regulation Article 13, Article 15 and Article 15/A
In the urban transformation process, after the demolition of risky structures, one of the most important stages is determining which contractor will build the new structure and the signing of a construction contract between the owners and the contractor.
According to Article 6 of Law No. 6306 and the provisions of the implementation regulation, in the transformation process, it is essential for the owners of the property to make decisions primarily. Owners can evaluate their properties through methods such as construction in exchange for a share of the land, revenue sharing, or similar approaches.
1. Determination of the Contractor
Legal Basis: Law Article 6 – Regulation Article 15
In urban transformation projects, for the construction of the new structure, land owners need to reach an agreement with a contractor.
According to Article 15 of the Regulation, decisions regarding applications to be made on parcels containing risky structures can be taken by a simple majority of the owners based on their land share.
In this process;
Landowners can receive projects and offers from one or more contractors
The project’s architectural plan, independent unit distribution, common areas, and construction period are evaluated
The project’s share of apartments in return for land or revenue sharing ratio is determined. According to the Regulation, upon the request of one of the owners, all owners must be invited to a meeting. The meeting;
is held by announcement for at least 15 days in the headman’s office or on the building’s bulletin board or by notification through a notary (Regulation Article 15). For the meeting to be held, the majority of land share ownership must participate, and for a decision to be made, a decision must be taken by the majority of land share ownership.
2. Determination of the Share of Apartments in Return for Land or Revenue Sharing Model
Basis: Law Article 6 – Regulation Article 13
According to Article 13 of the Regulation, the immovable properties of the owners in the application area can be evaluated through methods such as share of apartments in return for land or revenue sharing.
Construction Model for Share of Apartments in Return for Land
In this model; The contractor undertakes the construction and provides its financing. Landowners allocate their land to the project. The independent sections built are shared between the landowners and the contractor according to determined ratios. According to Article 13 of the Regulation, in such applications, contracts can be made with the owners by taking into account the agreed-upon rates.
Revenue Sharing Model
In this model; The independent sections built are put up for sale. The revenues obtained from the sale are shared between the landowners and the contractor. The Regulation also allows owners in transformation projects to be made project partners (Article 13/5).
3. Arrangement of Notary Approved Construction Contract
Basis: Law Article 6 – Regulation Article 13
The contract made between the landowners and the contractor is generally;
Construction contract in return for land share
or preliminary contract for sale of real estate and construction contract in return for flats. These contracts;
are drawn up or approved in the presence of a notary. In most cases, a notice is entered in the land registry. According to Regulation Article 13/12, in projects to be carried out based on a construction contract in return for flats:
Floor easement or condominium ownership can be established. The independent sections allocated to the rights holders must be clearly stated in the contract. In title deed transactions, the owner’s signature may not be required, and the administration can carry out the transaction. This regulation aims to ensure the rapid execution of transformation projects.
4. Key Provisions to Be Included in the Contract
Basis: Regulation Article 13 and Article 15
The scope of contracts to be made in urban transformation projects is quite broad. In accordance with the provisions of the Regulation, the following matters, in particular, must be clearly stipulated in the contracts:
The project’s architectural features and the number of independent units
The sharing ratio between landowners and the contractor
Construction start and completion period
The contractor’s delivery obligation
Penalty clause and delay compensation
Use of common areas
Rental assistance or temporary housing arrangements. Furthermore, according to the regulation, the sale of independent units falling to the contractor’s share depends on the construction progress level.
According to the provision of Regulation Article 13/10;
Independent units falling to the contractor’s share can be sold according to the construction progress rate,
For this sale to be made, written permission from the administration is required,
The contractor cannot sell independent units without the administration’s permission. This regulation has been introduced to prevent victimization through early sales in projects.
5. Failure of the Contractor to Fulfill Its Obligations
Basis: Law Article 6/14 – Regulation Article 13/11
The provisions of Law No. 6306 and its regulations grant significant rights to the owners in cases where the contractor delays the project or fails to start construction.
According to the provision of Article 13/11 of the Regulation, contracts may be terminated in the following situations:
Failure to Start Construction
After an agreement is reached with all owners
or if, after the owners make a decision with the majority of land shares, construction has not started within 1 year, the owners’ right to terminate the contract arises.
Long-Term Stoppage of Construction
If; construction has stopped at a certain stage and no activity has been carried out to complete the project for at least 6 months, owners can apply for the termination of the contract.
This situation;
photographs
construction inspection records
administrative records
is determined by documents such as satellite images.
6. Warning to be Issued to the Contractor and Termination Process
According to the regulation, the termination process proceeds as follows: Owners decide on termination with the majority of land shares. The application is made to the relevant Directorate or Administration. A written defense is requested from the contractor, and a 15-day period is given. If, as a result of the examination, it is determined that the conditions have been met, the contractor is warned to start or continue the work, giving a 30-day period.
At the end of this period, if the contractor does not start the work or does not carry out sufficient activities, the contracts shall be deemed to have been terminated ex officio without seeking the approval of the owners.
7. Post-Termination Process
In case of termination of the contract:
Contracts annotated in the land registry shall be canceled by the land registry office
Owners can enter into a new contract with a new contractor
Previous works and payments will be subject to settlement according to general legal provisions. The regulation also brought an important provision: rent support payments previously made by the contractor cannot be reclaimed from the owners.
15 Essential Clauses in an Urban Transformation Contract
In urban transformation projects, contracts signed between landowners and contractors are the most critical legal document of the project. The provisions included in these contracts are of great importance for preventing potential disputes in the future. Particularly, missing or ambiguous clauses in revenue-sharing construction contracts can lead to significant loss of rights for landowners.
The main provisions that must be included in an urban transformation contract are as follows:
1. Identity and land registry information of the parties
The clear identity information of the landowners and the contractor, or commercial registry information and authorized persons if it is a company, must be clearly stated in the contract.
2. Clear land registry information of the immovable property
Island, parcel number, land shares, and existing independent section information must be specified in detail.
3. Architectural features of the project
The number of floors, the number of independent units, apartment sizes, and common areas of the building to be constructed must be clearly stated in the contract.
4. Sharing of independent units
The apartments or workplaces allocated to the land owners and the contractor must be clearly specified.
5. Construction start date
The period within which the contractor will start construction after the signing of the contract must be determined.
6. Construction completion period
The project delivery date must be clearly stated and a time limit must be determined.
7. Penalty clause to be applied in case of delay
In case of construction delay, the late compensation to be paid by the contractor must be included in the contract.
8. Rent assistance or rent amount
The rent amount to be paid to prevent land owners from being victimized after demolition must be determined.
9. Contractor’s guarantee
A letter of guarantee to be obtained from the bank or another security mechanism must be arranged in the contract.
10. Construction quality and technical standards
The quality of materials to be used and technical standards must be specified.
11. Sale of the contractor’s share
The stage at which the contractor can sell the independent units must be determined.
12. Title deed procedures and establishment of floor easement
Procedures related to the establishment of floor easement and condominium ownership must be explained.
13. Insurance and building inspection
The construction must be inspected by a building inspection company and insurance procedures must be arranged.
14. Conditions for contract termination
It should be specified how the contract will be terminated if the contractor fails to fulfill their obligations.
15. Competent court in case of dispute
It should be stated which court will be authorized in disputes that may arise between the parties.
The clear regulation of these articles is the most important legal guarantee protecting the rights of landowners in urban transformation projects.
The Biggest Legal Mistakes Made When Choosing a Contractor
Most of the most common problems encountered in urban transformation projects stem from wrong contractor selection or incomplete contracts. Therefore, landowners need to pay attention to some important legal issues during the contractor selection phase.
The most common mistakes are as follows:
1. Failing to research the contractor’s financial strength
Many projects remain unfinished due to the contractor’s insufficient financing.
2. Not examining previous projects undertaken
Entering into an agreement without examining the contractor’s past projects poses a serious risk.
3. Not having the contract reviewed by an expert lawyer
Urban transformation contracts are highly technical agreements and must be reviewed by a legal professional.
4. Not obtaining collateral/security
Entering into a contract without a letter of guarantee or other security poses a great risk.
5. Not clearly specifying the construction period
Delays often occur in projects where the duration is not specified.
6. Not including a penalty clause
In case of delay, there is no deterrent sanction on the contractor.
7. Floor plans not being included in the contract
Failure to clearly define the independent sections to be built in the project leads to disputes.
8. Not registering an annotation (şerh) on the title deed
Not registering the contract on the title deed may lead to loss of rights.
9. Not investigating the contractor’s debt status
Contracts made with companies under foreclosure or in financial difficulty are risky.
10. Owners not acting in concert
When unity cannot be achieved among the owners, project processes are extended.
For this reason, when selecting a contractor in urban transformation projects, it is of great importance to conduct legal, financial, and technical due diligence.
Analysis of Sample Articles in a Flat-for-Land Construction Contract
Flat-for-land construction contracts are mixed-nature agreements made between landowners and contractors, regulating the reconstruction of real estate. These contracts contain provisions related to both works contracts and real estate transfer.
Below is a sample analysis of some important articles commonly used in flat-for-land construction contracts.
Construction Period Article
It is usually regulated in contracts as follows:
“The Contractor undertakes to complete the construction and deliver the independent sections to the landowners within 24 months from the signing of this contract.”
In this clause, the delivery period must be clearly specified. Failure to determine the period can cause projects to be delayed for years.
Penalty Clause
Example provision:
“In the event the Contractor fails to deliver the construction on time, they agree to pay the landowners delay compensation equivalent to the monthly rent amount for each month of delay.” Such penalty clauses incentivize the contractor to complete the project on time.
Guarantee Clause
“The Contractor agrees to submit a bank guarantee letter to ensure the fulfillment of its contractual obligations.” The guarantee clause constitutes an important assurance for landowners, especially in large projects.
Frequently Asked Questions About Urban Transformation
Kentsel dönüşüm sözleşmesi nedir ve neden önemlidir?
Kentsel dönüşüm sözleşmesi, arsa sahipleri ile müteahhit arasında yapılan ve riskli yapıların yıkılarak yerine yeni bir yapı inşa edilmesini düzenleyen hukuki sözleşmedir. Bu sözleşme; bağımsız bölüm paylaşımı, inşaat süresi, teslim şartları, gecikme cezaları ve tarafların hak ve yükümlülüklerini belirler. Eksik veya hatalı hazırlanan sözleşmeler ciddi hak kayıplarına neden olabileceğinden, kentsel dönüşüm sözleşmelerinin uzman bir avukat tarafından hazırlanması veya incelenmesi büyük önem taşır.
Kentsel dönüşüm için tüm maliklerin onayı gerekir mi?
Kentsel dönüşüm projelerinde karar alınabilmesi için tüm maliklerin onayı şart değildir. Mevzuata göre riskli yapıların bulunduğu parsellerde yapılacak uygulamalar arsa payı çoğunluğu ile alınan kararlarla gerçekleştirilebilir. Bu düzenleme, dönüşüm projelerinin azınlık malik tarafından engellenmesini önlemek amacıyla getirilmiştir. Ancak kararların hukuka uygun şekilde alınması ve tutanak altına alınması gerekir.
Kat karşılığı inşaat sözleşmesi nedir?
Kat karşılığı inşaat sözleşmesi, arsa sahiplerinin arsalarını müteahhide vererek karşılığında yapılacak binadaki bağımsız bölümlerin bir kısmını aldığı sözleşme türüdür. Bu modelde müteahhit inşaatı finanse eder ve gerçekleştirir, arsa sahipleri ise yeni yapılacak binada kendilerine düşen daire veya işyerlerini alırlar. Türkiye’de kentsel dönüşüm projelerinde en yaygın kullanılan model kat karşılığı inşaat modelidir.
Müteahhit seçerken nelere dikkat edilmelidir?
Kentsel dönüşüm projelerinde müteahhit seçimi en kritik aşamalardan biridir. Müteahhitin mali gücü, daha önce yaptığı projeler, teknik kadrosu ve finansman kapasitesi mutlaka araştırılmalıdır. Ayrıca sözleşmede teslim süresi, cezai şartlar ve teminat gibi hükümler açık şekilde düzenlenmelidir. Bu aşamada uzman bir kentsel dönüşüm avukatından hukuki danışmanlık alınması büyük riskleri önleyebilir.
Müteahhit projeyi yarım bırakırsa ne yapılabilir?
Müteahhitin projeyi yarım bırakması veya inşaata başlamaması halinde arsa sahipleri çeşitli hukuki haklara sahiptir. Sözleşmede yer alan hükümler doğrultusunda sözleşme feshedilebilir ve yeni bir müteahhit ile anlaşma yapılabilir. Ayrıca gecikme veya zarar oluşması durumunda tazminat talep edilmesi de mümkündür. Bu tür durumlarda hukuki sürecin doğru yürütülmesi için uzman bir avukat desteği alınması önemlidir.
Kentsel dönüşüm sözleşmesi tapuya şerh edilmek zorunda mı?
Kentsel dönüşüm sözleşmelerinin tapuya şerh edilmesi zorunlu değildir ancak büyük bir hukuki güvence sağlar. Tapuya şerh edilen sözleşmeler üçüncü kişilere karşı da geçerli olur ve müteahhit veya arsa sahiplerinin haklarının korunmasına yardımcı olur. Bu nedenle kat karşılığı inşaat sözleşmelerinin tapu siciline şerh edilmesi uygulamada oldukça yaygındır.
Why is Expert Legal Support Necessary in Urban Transformation?
Urban transformation projects are not merely technical and architectural processes; they are also comprehensive legal processes involving complex legal procedures, contracts, and title deed transactions. Each stage, such as hazardous building determination, the decision-making process of property owners, contractor selection, flat-for-land construction contracts, and title deed transactions, carries significant legal consequences. Therefore, obtaining expert legal support in the urban transformation process is of great importance for both landowners and investors.
Among the most common problems encountered in urban transformation projects are poorly prepared contracts, delays caused by contractors, disputes over independent section sharing, errors in title deed transactions, and projects remaining unfinished. To prevent such problems, contracts and processes must be carried out correctly from a legal perspective. Especially revenue-sharing construction contracts and urban transformation contracts, as they contain technical and detailed provisions, must be prepared or reviewed by a legal expert.
The main contributions an attorney can provide during the urban transformation process are as follows:
Conducting legal and financial risk analysis before contractor selection
Preparing revenue-sharing construction contracts and urban transformation contracts in accordance with the law
Managing decision-making processes among property owners in accordance with the law
Proper execution of title deed transactions and contract annotations
In case the contractor fails to fulfill their obligations, contract termination and management of legal processes
Monitoring compensation and litigation processes that may arise in urban transformation projects
Working with a law firm experienced in urban transformation law reduces risks that may arise from the beginning of the project and ensures the protection of the parties’ rights. Especially in transformation projects carried out in large cities like Istanbul, working with an attorney specialized in urban transformation provides a great advantage for the proper management of the process.
In this context, 2M Law Office provides legal consultancy and litigation services in the field of urban transformation law, flat-for-land construction contracts, and contractor agreements. Especially for landowners and investors seeking an Istanbul urban transformation lawyer, professional support is provided for contract drafting, project consultancy, and dispute resolution.
In urban transformation projects carried out in Tuzla and its vicinity, the support of a Tuzla urban transformation lawyer is important for both the proper management of the contract process and the protection of the owners’ rights. Obtaining legal consultancy in this process helps prevent major financial and legal risks that may arise in the future.
In conclusion, in urban transformation projects, obtaining expert legal support is not just a preference, but often a critical necessity that prevents loss of rights. Especially in high-value transactions such as flat-for-land construction contracts and contractor agreements, obtaining professional legal support contributes to the safe and smooth completion of the project.
