Construction activities across Turkey encompass a wide legal spectrum, ranging from land share construction contracts to turn-key building projects. At the core of these relationships lie the provisions governing work contracts under the Turkish Code of Obligations (Law No. 6098, “TBK”). The primary obligation of a contractor or developer is to build and deliver a structure on time, free of defects, and in strict compliance with the contract, approved architectural plans, zoning regulations, and technical standards.
However, in practice, delivered properties frequently exhibit flaws such as waterproofing failures, non-conforming structural executions, sub-standard materials, cracks, or static deficiencies. Under Turkish law, these deficiencies fall under the scope of defective work in construction law, granting landowners and independent unit buyers specific legal rights, inspection duties, notification burdens, and compensation remedies. At Mükyen Hukuk, we examine all legal aspects of defective construction and available remedies in this comprehensive guide.
1. Concept of Defect and Classification of Defects
In legal terms, a defect exists when a delivered structure lacks attributes promised in the contract, fails to meet justifiable expectations under good faith rules, or contradicts objective usage purposes. Defects are categorized based on how they manifest:
Apparent Defects (Açık Ayıp)
Apparent defects are visible flaws that can be identified upon initial delivery through ordinary inspection. Examples include visible wall cracks, broken tiles, sub-standard painting, damaged doors or windows, and faulty fixture installations. The client must inspect the property as soon as customary business flow permits and report apparent defects to the contractor within a reasonable timeframe.
Latent Defects (Gizli Ayıp)
Latent defects are flaws that cannot be detected during an ordinary initial inspection, emerging only over time through usage, wear, or seasonal changes (such as winter rainfall). Typical examples include foundation waterproofing failures, roof leaks, inadequate thermal insulation noticed during winter, and concrete structural strength deficiencies. Notification for latent defects must be served immediately upon discovery.
2. Legal Distinctions Between Defective Work and Incomplete Work
In practice, defective work and incomplete work are frequently confused, yet they differ completely in legal consequences and applicable procedural rules:
Defective Work (Ayıplı İş): The agreed work has been performed, but its quality is flawed, sub-standard, or incorrect (e.g., installing low-grade tiles instead of first-class ceramics). The client is bound by strict inspection and notification burdens for defective work.
Incomplete Work (Eksik İş): Items specified in the contract or approved plans that were omitted entirely (e.g., failing to install promised generators or kitchen cabinetry). For incomplete work, inspection and notification burdens do not apply. Claims for incomplete work can be pursued directly within general statutory limitation periods.
3. Client’s Optional Rights Under TBK Article 475
When a structure is delivered with defects, Article 475 of the Turkish Code of Obligations grants the client explicit legal options. These options are exercised through unilateral declarations and do not depend on contractor consent:
Rescission of Contract (Sözleşmeden Dönme): If defects are so severe that accepting the work contradicts equity, the client can rescind the contract. However, for buildings constructed on the client’s land where removal would cause excessive destruction, good faith rules restrict rescission, favoring price reduction or repair instead.
Reduction in Price (Bedelden İndirim): The client can retain the property while requesting a price reduction proportional to the loss in value caused by the defect.
Free Repair Request (Ücretsiz Onarım İsteme): Provided it does not incur disproportionate expense, the client can demand that the contractor repair all defects at their own expense.
Claiming Damages (Tazminat Talebi): Independent of or alongside the optional rights, damages can be claimed for general losses caused by contractor fault.
| Legal Remedy | Qualification Condition | Is Contractor Fault Required? | Notification Burden |
|---|---|---|---|
| Rescission of Contract | Defect renders the property unusable | Not required (Objective liability) | Mandatory (Timely notice required) |
| Reduction in Price | Defect causes loss in property value | Not required (Objective liability) | Mandatory (Timely notice required) |
| Free Repair Request | Repair cost is not disproportionate | Not required (Objective liability) | Mandatory (Timely notice required) |
| Claim for Damages | Direct or indirect financial loss occurs | Required (Fault-based liability) | Mandatory (Timely notice required) |
4. Notification Burdens, Proof, and Statutes of Limitations
To preserve claims arising from defective construction, statutory notification timelines and limitations periods must be strictly observed.
Inspection and Notification Burden
While notice forms are not strictly prescribed by law, issuing written notice via a notary public is recommended for evidentiary proof. The notice must explicitly specify the location, nature, and extent of all identified defects.
Statute of Limitations (TBK Article 478)
For real estate structures, defective work claims expire 5 years from the date of physical delivery. However, if the contractor acted with gross negligence or fraud (such as deliberately omitting structural rebar or using sub-standard concrete), the limitation period extends to 20 years from delivery.
5. Consumer Protection Aspect in Residential Property Sales
Individual buyers purchasing residential property directly from developers for non-commercial purposes hold “consumer” status under Consumer Protection Law No. 6502 (TKHK). In consumer transactions, additional statutory protections apply:
Reversal of Burden of Proof: Defects emerging within the first 6 months from delivery are presumed to have existed at delivery. The burden of proving the absence of defects rests on the developer.
Competent Court: Consumer Courts hold jurisdiction over consumer property disputes, providing procedural advantages and fee exemptions for buyers.
Safeguard Your Legal Rights with Mükyen Hukuk
Defective construction claims involve technical court expert reports, notary notifications, and strict statutory limitation periods. Failing to serve timely defect notices or selecting inappropriate legal remedies can result in the forfeiture of property rights.
At Mükyen Hukuk, we provide expert legal representation for landowners, unit buyers, and developers in construction disputes, handling evidence collection, notary notices, repair demands, and compensation lawsuits. Contact our law office today to initiate your legal proceedings and safeguard your property rights.