Introduction

This study has been prepared to analyze the legal remedies available to a rights holder who applied for a social housing project conducted by the Housing Development Administration of Turkey (TOKİ) for a specific location (e.g., Tuzla district), but was allocated a residence in another district (e.g., Arnavutköy) against their will as a result of a lottery, and to examine how the practice is shaped in light of existing judicial decisions. The review was conducted based on the summaries of the judicial decisions presented.

1. Legal Nature of the TOKİ Dispute and the Supreme Court’s Perspective

Supreme Court decisions generally treat the issue as a breach of contract or poor performance. The plaintiff’s claim that “it was not one of the apartments built in the promised region” is considered by the courts as a matter that should be seriously examined. As stated in the decision of the 13th Civil Chamber of the Supreme Court, numbered 2017/9980 E. and 2018/2719 K., the annulment of the local court’s decision on the grounds that “the claim that the plaintiff should have been allocated a unit from the 1st stage among the demands in their petition, but was instead allocated a unit from the 12th stage, was not addressed at all” indicates that such claims must be examined on their merits.

The Supreme Court has clearly outlined the roadmap that courts should follow in such cases. In several decisions (e.g., Supreme Court 13th Civil Chamber, 2016/7522 E., 2017/8332 K.), the following statement is reiterated:

“…it is necessary to establish a judgment based on the outcome of an explanatory report obtained through an expert on-site inspection, if necessary, to determine how many stages the entire construction area consists of, whether it is divided into regions internally, and in which stage the properties given to the plaintiff are located, suitable for scrutiny by the parties, the judge, and the Supreme Court; however, the decision rendered as a result of an incomplete examination and assessment in writing is contrary to procedure and law, and thus necessitates reversal.”

This approach has the potential to be interpreted in favor of the rights holder, especially when two different districts like Tuzla and Arnavutköy are involved, as the difference between them is much more pronounced than a mere “stage” or “zone” difference.

However, as in the decision numbered 2023/2706 E., 2024/785 K. of the 3rd Civil Chamber of the Supreme Court, if it is determined during the examination that “the entire project area was arranged as a 1st stage housing area, and only the 1st stage was divided into regions,” then it can be decided that the residences provided from different regions are in compliance with the contract. Therefore, details such as whether TOKİ presented the Tuzla and Arnavutköy projects under a single “mega project” will gain importance.

2. TOKİ : Authorized Jurisdiction

In many decisions, such as the Court of Jurisdictional Disputes’ decision no. 2010/337 E., 2011/110 K., it has been stated that the social housing relationship between the administration and the citizen “does not arise from a unilateral administrative act and action based on public authority and power, and taken ex officio” and is a “private law relationship”, and it has been ruled that the ordinary judiciary (Civil Court of First Instance) is responsible for such cases. According to this view, the lawsuit to be filed will be a compensation or specific performance case arising from breach of contract.

3. Legal Remedies and Claims That Can Be Pursued

In light of the above analyses, the legal remedies that the rights holder can pursue and the claims they can put forward are as follows:

Specific Performance or Compensation Lawsuit: If the view of the ordinary judiciary is adopted, a housing unit from Tuzla can primarily be requested (specific performance) in accordance with the commitment before the Civil Court of First Instance, and if this is not possible, compensation for damages incurred due to poor performance can be claimed. These damages may include the difference in value of housing units between the two districts, moral damages, or additional expenses.

Compensation for Difference in Value (Goodwill Difference): The Supreme Court considers the delivery of a residence in a location different from that promised in the contract as a breach of contract and rules that the resulting difference in value can be compensated. In a decision, it was stated that the court must “render a judgment based on the outcome, by conducting an on-site inspection when necessary, and obtaining an explanatory report from an expert, suitable for review by the parties, the judge, and the Supreme Court” (yargitay-13. Hukuk Dairesi-2017/9980). The plaintiff can claim the difference in value between the residence in Tuzla and the residence in Arnavutköy.

Compensation for Positive Damages (Compensation in Lieu of Performance): The General Assembly of Civil Chambers of the Supreme Court has stated that if the administration fails to deliver the residence it promised under the contract, the rightful owner can claim compensation for positive damages in lieu of performance. Since this damage is “equal to the fair market value of the residence that should have been delivered to the plaintiff” (yargitay-Hukuk Genel Kurulu-2019/42), the rightful owner can claim the current market value of the promised residence in Tuzla.

The Importance of Making a Reservation: If the right holder is forced to take delivery of the residence in Arnavutköy, signing the contract or the delivery record with a “without prejudice to my rights in Tuzla” type of reservation can prevent the loss of rights in a future lawsuit (Supreme Court 3rd Civil Chamber, 2023/1177 E., 2023/3044 K.). The Supreme Court has indicated that taking delivery of the residence without any objection may lead to the loss of rights in a future lawsuit. In a decision, it is seen that the case was dismissed on the grounds that the plaintiff “took delivery of these apartments … without making any reservation.” Therefore, when taking delivery of the residence, signing a record with a reservation (ihtirazi kayıt) stating that the allocation is contrary to the application is of critical importance for evidentiary purposes in the litigation process.

Conclusion

The allocation of an apartment in Arnavutköy by TOKİ in response to a Tuzla social housing application is a serious situation that grants the applicant the right to pursue legal remedies. The course of action to be followed primarily depends on a detailed examination of the application guide and all related documents. Subsequently, a lawsuit for specific performance or compensation can be filed. It is recommended that the right holder initiate the legal process by consulting a lawyer before signing any document or taking delivery of the residence. A publication suggestion.

Why Is Expert Legal Assistance Necessary?

Disputes arising from TOKİ social housing applications in Istanbul’s districts such as Tuzla, Arnavutköy, Pendik, Kartal, and Gebze are complex and detailed in terms of legal processes. To protect the applicant’s rights, to direct correct demands in specific performance or compensation lawsuits, and to meticulously follow critical steps such as making a reservation, it is of great importance to obtain expert legal support. An experienced lawyer prevents potential loss of rights by guiding the rights holder through all stages, from the examination of application documents to the conduct of the court process.