309 / 522
to sign a lease agreement. However, due to the fact that the lease agree-
ment grants personal rights (
right in personam
) to the parties, they do
not provide sufficient protection for the project developer; in particu-
lar, when weighing the necessity of a long-term operation for a prof-
itable energy investment against the possibility of the land owner’s
possible demise, or transfer of the land to third parties. At this point,
annotation of the lease agreement with the land registry may be a solu-
tion. Unless the agreement is annotated with the land registry, it shall
not grant any right against third persons, and the future of the land shall
be jeopardized by the risks of transfer of the land and title through
descent. However, although the annotation creates an effect of right in
rem and servitude attached to the property, it does not render the rights
arising from the lease agreement as real rights (
right in rem
)
1
, and the
lessee shall not benefit from certain protection mechanisms vested
with the beneficiary of a real right.
On the other hand, establishment of a right of construction is quite
efficient for energy projects due to the fact that it provides a right to
construct over the land, as well as the ownership of the construction,
throughout the duration of the right of construction. Furthermore,
while the lessee is only authorized to file actions for protection of pos-
session against the third parties’ unlawful interventions, the beneficia-
ry of the right of construction shall be authorized to file real actions
(
actio in rem
) as well, which is explained below.
Protection of the Right of Construction
The rights of a beneficiary of a right of construction for protection
of its authority to construct on the land, and to preserve such construc-
tion, should also be considered. This issue bears importance, especial-
ly with regard to preventing unlawful intervention of the owners of the
servient estate or the previous owners facing expropriation.
There are no explicit provisions regarding the protection of the
beneficiaries of the right of construction against unlawful interventions
of third parties. However, the right of the beneficiary to file real actions
against the offenses of third parties is an acknowledged principle aris-
ENERGY LAW
293
1
Kemal Oğuzman/Özer Seliçi/Saibe Oktay-Özdemir
, Eşya Hukuku, Istanbul, 2013, p. 253, n.
1037.