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Energy Investments and Right of Construction
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Att. Fatih Isik
Introduction
Power generation facilities are established, in general, over pub-
licly owned or expropriated properties. However, it is also possible to
build energy projects over lands that are owned by private law persons.
In such cases, projects are generated by means of an agreement
between the project developer and the land owner. An agreement is
entered into between the parties in the event the acquisition of land, or
establishing a long-term usage right in favor of the project developer
comes into question. At this point, due to its characteristics and vari-
ous advantages, obtaining a right of construction over the land is gen-
erally preferred. Therefore, the beneficiaries’ rights and the effects of
the right of construction will be briefly examined herein.
Right of Construction
As per Art. 826 of Civil Law numbered 4721 (“CL”), the right of
construction is defined as “
an easement right that grants its third party
beneficiary the authority to build construction on or underneath the
land, or to preserve an existing construction.
” Hence, the right of con-
struction entitles a person to build and own construction on a third
party person’s property. The owner of the servient estate holds owner-
ship of the land; yet, is obliged to respect the presence and preserva-
tion of the construction of beneficiaries’ over the land.
Right of Construction and Lease Agreement
As stated, the land may be brought into a project developer’s use
with methods other than transfer of the ownership. The first method is
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NEWSLETTER 2015
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Article of August 2015