Liability for Buildings Damaged or Collapsed in an Earthquake

Türkiye is an earthquake-prone country; sadly, frequent earthquakes cause heavy loss of life and property. In these earthquakes, many buildings are either seriously damaged or, worse, collapse. In a given area, while many buildings remain standing intact, the fact that only some of the buildings in the same area are damaged will constitute a presumption that there were certain problems in the construction/building process of those buildings. In such a case, it is clear that compensation for the damage may be claimed from the contractor at fault.

- When assessing liability, it will be necessary to accept that not only the contractor but also the persons who actively took part in the construction of the building and in its subsequent inspection, such as the author of the structural design, are liable.

“Counsel for the plaintiff cooperative stated that, during the period when the defendants ..., ... and ... were the managers of the cooperative, the cooperative’s construction works were carried out by the defendant ... as the contractor, and that the defendant ... was the person responsible for technical implementation, that the building consisted of 26 apartments, 1 caretaker’s apartment and 1 meeting hall, and that as a result of the earthquakes that occurred on October 23, 2011 and November 9, 2011, the Disaster and Emergency Management Authority (AFAD) issued a demolition decision for 14 apartments and a moderate damage decision for the remaining independent units(...) The action concerns a claim for compensation for pecuniary damage brought by the plaintiff cooperative, the owner of the buildings that were heavily damaged and collapsed or suffered moderate damage in the Van earthquakes of October 23, 2011 and November 9, 2011, against the defendants who were at fault in the construction of the building. (...)Although the defendant ..., who appears on the building permit as the author of the structural design and as the structural technical supervisor, was found in the expert report on which the judgment was based to be at fault at a rate of 2% as the author of the structural design because the building was not properly designed, and at a rate of 25% as the structural technical supervisor because the structural design of the building was not complied with, he was appointed to a public post on December 15, 2005, after preparing the structural design on October 7, 2005. It has been understood that the building permit for the building was obtained after this date, on January 6, 2006, that construction began, and that the construction was completed without an official structural technical supervisor. Given that the said defendant officially took up a public post, that he stated in his defense that he gave notice of this at that time, and furthermore that the plaintiff has neither alleged nor proved that he worked as technical supervisor on the construction after this date, the defendant ... should not have been held liable as the structural technical supervisor and should have been held liable only as the author of the structural design (at a rate of 2%); failing to take this point into account was erroneous.” (Court of Cassation (Yargıtay), 23rd Civil Chamber, Docket No. 2017/2640, Decision No. 2020/2367, 30.6.2020)

- Another point is that, in determining the amount of compensation, a reduction must be made by the amount of the damage covered by the state.

“In addition, the defendant party argued that public administrations had provided various in-kind and cash assistance to the plaintiff cooperative and to its members to whom dwellings had been allocated, and that the cooperative members had been given housing on favorable terms; in order to determine the actual damage of the cooperative, by corresponding with the relevant institutions and organizations, all kinds of financial support provided to the plaintiff cooperative and to its members whose homes collapsed or were damaged should have been inquired about, and the amounts determined should have been deducted from the compensation for pecuniary damage claimed in this action; the failure to carry out the necessary examination and investigation on this matter was not correct.” (Court of Cassation, 23rd Civil Chamber, Docket No. 2017/2640, Decision No. 2020/2367, 30.6.2020)

- It is also necessary to consider to what extent the event that caused the damage in question reduces the fault. If the collapse of or damage to the building would have been unavoidable even if everything had been done properly, then an appropriate equitable reduction in the compensation may also come into consideration.

“On the other hand, even if the building had been constructed in accordance with its plan and project, the zoning regulations and the earthquake regulation, considering the intensity of the earthquake that occurred, damage to the building due to the earthquake would have been unavoidable. (Judgment of the Assembly of Civil Chambers dated 06.03.2013, Docket No. 2012/786, Decision No. 2013/318) Accordingly, pursuant to Art. 43 of the former Code of Obligations No. 818, which was in force at the date of the event (Turkish Code of Obligations (TBK), Art. 51/1), an equitable reduction in keeping with justice must also be made from the compensation determined. The failure to make an assessment on this point was also not found correct, and the judgment had to be reversed for the reasons explained.” (Court of Cassation, 23rd Civil Chamber, Docket No. 2017/2640, Decision No. 2020/2367, 30.6.2020)

- If the contractor has concealed the defect through gross fault or fraud, the right holders whose building was consequently damaged in the earthquake may claim compensation for their damage from the contractor without being bound by any time limit. If the contractor is no longer alive, they may assert this claim against the contractor’s heirs.

“(...)The action is a claim for compensation concerning a defect in the immovable property built by the defendant as contractor, which the plaintiff purchased from a third party on May 29, 2019. (...) furthermore, from the examination of the report on the determination of evidence obtained in miscellaneous matter file No. 2017/51 of the Marmara Ereğlisi Civil Court of First Instance, which is in the case file, it has been understood that the building is 25 years old and that the Type B architectural implementation project was approved on April 2, 1991, (...) The sale of the immovable property in dispute to the plaintiff took place after Law No. 6502 on Consumer Protection entered into force. Art. 10 of the same Law, for its part, contains no obligation to give notice. Furthermore, Art. 12 of the same Law contains the following provision on limitation: "Unless a longer period is set by law or by the contract between the parties, liability for defective goods is subject to a limitation period of two years from the date of delivery of the goods to the consumer, even if the defect becomes apparent later. For immovable property intended for residential or holiday use, this period is five years from the date of delivery of the property. (2) Without prejudice to the third paragraph of Art. 10 of this Law, in second-hand sales the seller’s liability for defective goods may not be less than one year, and for immovable property intended for residential or holiday use, not less than three years.(3) If the defect has been concealed through gross fault or fraud, the provisions on limitation do not apply." In view of the said provisions, the limitation period has not expired for the present action, and the merits of the case must be examined and a decision rendered in accordance with the outcome. Accordingly, the Regional Court of Appeal’s dismissal of the plaintiff’s appeal and rendering of judgment as written, without taking into account these points, which have been made grounds for reversal, is contrary to procedure and law. Therefore, it was necessary to accept the plaintiff’s grounds of appeal on points of law and to decide that the decision of the Regional Court of Appeal be reversed. CONCLUSION: For the reasons explained above, it was unanimously decided on February 27, 2020 that the decision of the Regional Court of Appeal be REVERSED and that the case file be SENT to the Regional Court of Appeal pursuant to Art. 373/1 of the Code of Civil Procedure (HMK)” (Court of Cassation, 13th Civil Chamber, Docket No. 2019/4333, Decision No. 2020/2928, 27.2.2020)

- The buildings in question must be constructed in accordance with the earthquake regulation in force as of the date of their construction. The contractor cannot be expected to build in accordance with regulations that entered into force later.

“The assessments in the expert report on which the local court based its judgment were made according to the 2007 Earthquake Regulation. Since, in a building constructed under the provisions of the 1975 Earthquake Regulation while that regulation was in force, the contractor cannot be expected to know and foresee developments occurring after construction and delivery, it is clear that unfavorable provisions that entered into force later and increased the contractor’s responsibilities cannot be applied to contractors either. Therefore, the contractor’s liability and duty of care must be assessed according to the provisions of the 1975 Earthquake Regulation, which was in force at the time of the construction and delivery of the building. However, no assessment to this effect was made in the file, and the judgment was based on an expert report prepared with incomplete investigation and examination. In that case, what the court must do consists of obtaining, through a court-appointed expert or a panel of experts, and by conducting a new on-site inspection where necessary, a report suitable for rendering judgment and for review, determining whether there is damage in Block A, which is the subject of the action and was built by the defendant contractor, and, if there is damage, the source and nature of the damage and whether the defendant contractor is liable for this damage under the provisions of the legislation in force at the date on which the building was constructed, and deciding according to the resulting outcome. For this reason, the decision to persist had to be reversed.” (Assembly of Civil Chambers of the Court of Cassation, Docket No. 2017/15-254, Decision No. 2020/6, 14.1.2020)

- As for determining liability under criminal law, it must not be forgotten that the contractor who constructed the building in question, the persons who appear as the owners of the building on the date of the earthquake, and the public employees who did not perform their inspection duty bear liability.

“In light of this information, the accused ... and ... purchased, as co-owners with a 1/3 share each, the immovable property registered in the land register as a plot of land, but on which, in actual fact, there was an illegally built 5-story structure; the accused knew that, as of the dates of purchase, the structure in question was registered in the land register as a plot of land; although, in the subsequent process, they carried out a number of procedures to have the structure registered in accordance with procedures and regulations, they did not bring these attempts to a conclusion; the intention and attempts of the accused to bring the structure, which was illegally built and collapsed as a result of the earthquake, into conformity with procedures and regulations were aimed at preventing official problems that might arise in the future and problems concerning ownership that might arise among the accused; although there is no doubt that this characteristic of the province of Van, located within the boundaries of a first-degree earthquake zone, was foreseeable, the accused cannot be expected to have foreseen the earthquake that occurred and that, as a result of this earthquake, the structure in which they themselves lived could collapse; at the same time, the strength and resistance calculations for constructions carried out in earthquake zones, based on the earthquake risk of the place where they are built, must be made by the persons who personally design, carry out and supervise the constructions; although the accused ... and ... knew that the building they purchased, which collapsed as a result of the earthquake, was illegally built, they did not play an active role in the construction phase; and while there is no hesitation in accepting that the accused, who assumed certain risks by purchasing an illegally built building, are liable for the resulting outcome at the level of negligence, imposing an excessive penalty on the accused, whose liability is at the level of simple negligence, by applying the provisions on conscious negligence defined in Art. 22/3 of the Turkish Criminal Code (TCK), without taking into account that they could not be expected to foresee that an earthquake would occur and that, as a result of this earthquake, the building they owned would collapse and cause deaths,CONCLUSION: is contrary to law, and since the grounds of appeal of defense counsel for the accused were found justified in this respect, it was unanimously decided on March 9, 2020 that the judgment be REVERSED, partly in accordance with the request, pursuant to Art. 321 of the Code of Criminal Procedure No. 1412 (CMUK), which is still applied pursuant to Art. 8/1 of Law No. 5320.” (Court of Cassation, 12th Criminal Chamber, Docket No. 2020/332, Decision No. 2020/2497, 9.3.2020)

This article is a general assessment prepared in accordance with the legislation in force on its date of publication; it does not constitute a legal opinion. This English text is a translation of the Turkish original; in case of any discrepancy, the Turkish version prevails.