311 / 522
a third person claims a right over the servient estate that prevent the
beneficiary from exercising his easement right, the beneficiary may file
a negative declaratory action, or if there are new registrations that con-
flict with the easement right, the beneficiary may claim the annulment
of these registrations
6
.
Right of Construction on Pledged Immovables
Prior to the implementation of the project, it is common to check
whether the servient estate is subject to any encumbrances. Particularly,
for the cases in which the right of construction is established on land
that is owned by private law persons through an agreement, the exis-
tence of a pledge should be checked. If a right of pledge is already
established over the land prior to the establishment of the right of con-
struction, the beneficiary of the pledge may request the sale of the land,
free from the right of construction. Article 132 of Enforcement and
Bankruptcy Law numbered 2004 is quite clear: “
If the debtor estab-
lishes an easement right or a right of encumbrance over the land with-
out consent of the creditor, this establishment shall not affect a credi-
tor’s right, and the creditor may request the sale of the land with or
without such right.
” In such case, the beneficiary shall face the risk of
losing all of his rights over the land. Furthermore, the beneficiary of
the right of construction shall not be able to argue having acted in good
faith since the pledge is registered with the land registry. Therefore, the
consent of the creditor of the pledged land should be obtained in order
to avoid unfavorable outcomes for the beneficiary of the right of con-
struction.
Conclusion
Energy investments are high-cost projects that are profitable in the
long term. Throughout this term, a right of construction may be estab-
lished over the land in order to provide protection for a project devel-
oper’s rights against the land owner and third persons. However, dur-
ing the establishment of a right of construction, the presence of a pre-
viously established pledged should be seriously considered.
ENERGY LAW
295
6
Oğuzman/Seliçi/Oktay-Özdemir
, p. 784, n. 2765-2766.