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Introduction
Under Turkish Contract Law, cases of strict liability are regulated to strengthen the protection of the injured party and ensure the fair distribution of social risks. In this context, Article 69 of the Turkish Code of Obligations No. 6098 specifically addresses the liability of the building owner and provides for liability without requiring fault. This provision is based on the principle that the risks arising from buildings and other structures must be borne directly by the owner.
The strict liability of the building owner has gained even greater importance today, particularly due to increasing urbanization, the proliferation of high-rise buildings, and the complex technical characteristics of structures. In this article, the liability of the building owner—based on Article 69 of the Turkish Code of Obligations—will be examined in terms of its scope, conditions, limits of liability, and practical implications.
The Concept of the Building Owner
A building owner is the person who owns a building or a structure. However, this concept does not always coincide with that of the real property owner. While the real property owner generally refers to the person who owns the land on which the building stands, the building owner may sometimes be the owner of a structure located on land belonging to another person.
For example, in the case of temporary structures such as huts, kiosks, or pergolas built on another person’s land, the building owner may be a different person from the real property owner. In such cases, liability will not rest with the real property owner registered in the land registry but with the owner of the defective building or structure.
Therefore, the key factor to consider when determining liability under Article 69 of the Turkish Code of Obligations is not the owner of the real property, but directly the owner of the building or structure.
The Legal Nature of the Building Owner’s Strict Liability
Article 69 of the Turkish Code of Obligations departs from the classical fault-based liability regime and adopts a strict liability regime. Under this framework, the building owner is held liable for damages arising from defects in the construction or deficiencies in the maintenance of the building, even in the absence of fault.
This type of liability bears a resemblance to strict liability. Since buildings and structures inherently pose a potential danger to their surroundings, the owner’s fault is not required to establish liability when such a danger materializes, in order to protect the injured party.
However, this liability is not absolute. The owner may be exempted from liability by proving that the causal link has been severed.
In its decision dated September 7, 2020, Case No. 2018/5021, Decision No. 2020/4885, the 17th Civil Chamber of the Supreme Court ruled that exempting building owners from liability on the grounds of lack of fault regarding damages resulting from a fire in a building was contrary to the law.
In this decision, the Court of Cassation emphasized that, pursuant to the explicit provision of Article 69 of the Turkish Code of Obligations, fault need not be established, and underscored the building owner’s strict liability. Thus, it is evident that this liability is strictly applied in practice.
Conditions of Liability
- The existence of a building or structure
For liability to arise, the existence of a building or construction work is first required. The most important element of the concept of a building is its connection to the ground. Therefore, movable elements are not considered part of the building.
A building or structure is not limited to the main structure alone but also encompasses its integral parts and details. Elements such as elevators, balconies, and staircases are also included within this scope. This is because the absence or defect of these elements directly affects the integrity and safety of the structure.
- The Presence of the Owner or Holder of a Limited Real Right
The person to whom liability is attributed is, as a rule, the owner of the structure. However, pursuant to Article 69/2 of the Turkish Code of Obligations, holders of usufruct and habitation rights are also liable to a certain extent.
Beneficial and residential right holders are held jointly and severally liable with the owner for damages arising from deficiencies in the building’s maintenance. However, their liability is limited solely to maintenance deficiencies; they cannot be held liable for construction defects.
Holders of personal rights, however, bear no liability in this context.
- Existence of a defect: construction defect or maintenance deficiency
Under Article 69 of the Turkish Code of Obligations, a defect may arise in two forms: a construction defect or a maintenance deficiency.
A construction defect refers to technical errors made during the construction of the building. Situations such as the use of substandard materials, missing materials, or deviations from the project plans fall under this category.
Lack of maintenance refers to situations of inadequate maintenance arising after the building’s construction. This includes a reduction in the building’s safety due to factors such as wear and tear over time or the effects of weather conditions.
The criterion here is adequate safety. The owner is obligated to take economically feasible measures. The duty of maintenance involves reasonable and balanced measures rather than those requiring excessive expenses.
- Damage and Causal Connection
For liability to arise, there must be an appropriate causal link between the defect and the damage.
If the defect in the structure did not contribute to the occurrence of the damage, the causal link is deemed severed, and the owner cannot be held liable. For example, liability will not arise if the damage is caused entirely by an external factor (such as force majeure).
The injured party’s assumption of risk may also be considered a cause that severs the causal link. This means that the individual knowingly and willingly exposes themselves to a dangerous situation and accepts the consequences of that risk. This situation is also referred to in the classical sense as “risk assumption based on consent.” In its decision dated November 24, 2014, Case No. 2014/20308 and Judgment No. 2014/16759, the 17th Civil Chamber of the Supreme Court ruled that the plaintiff, who was injured as a result of a roof tile falling from the roof, was entitled to compensation; however, since the plaintiff worked in a pharmacy located in the same building and was thus in a position to know about the demolition order issued for the building, the court ruled that the plaintiff bore contributory negligence. As seen, even if the causal link is not severed in a specific case, there may be situations where full liability is not attributed to the building owner.
Conclusion
The strict liability of the building owner reflects the principles of risk allocation and protection of the injured party in modern legal systems. Article 69 of the Turkish Code of Obligations imposes a heavy liability on the owner to prevent damages arising from buildings and construction works.
Under this liability regime, the owner’s fault is not required; what matters is the presence of a defect in the structure and the establishment of a causal link between this defect and the damage. Additionally, the scope of the maintenance obligation is determined within the framework of the principles of economic balance and adequate safety.
In conclusion, the owner’s liability serves the function of ensuring both individual and public safety; it contributes to the balanced sharing of risks that may arise, particularly in urban life.
References
Oğuzman, M. Kemal, Öz, M. Turgut. Law of Obligations: General Provisions, 20th ed., Vedat Publishing, Vol. 1, 2
Oğuzman, Kemal, Özer Seliçi, and Saibe Oktay-Özdemir. Property Law. 15th Edition. Istanbul: Filiz Publishing House, 2012.
Sirmen, Lale. Law of Property. 7th Edition. Ankara: Yetkin Publications, 2019
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