What is the liability of owners who do not care about their neighbours’ rights
and exceed their own property right and its boundaries, impacting the environment
as a result?
Article 730, Civil Code responds to this question, revealing the owner’s liability
with the followings words:
A person who suffers or encounters the risk of harm due to the immovable property owner’s
usage of his property right against the legal limitations of this right may sue for restitution
and compensation for the risk and harm.
The judge can decide the equalization of the damages arising from disorderly conducts
which are proper to the local custom and unavoidable, as due compensation.
In line with the wording of the article, it should be noted that the liability
regulated here is not a liability with fault, but instead an ‘absolute (objective)
liability (liability without fault)’. Indeed, as it does not allow the owner to prove
that he is not liable for the risk or the harm in question, it can be defined as
‘aggravated objective liability’ (Güneş, 2015: 312).
With respect to liability, in addition to the Civil Code, it is necessary to examine
the provisions under the Obligations Code (No. 6098). There are four main articles
which can be applied with regard to the liability of the parties causing environmental destruction or polluting the environment under this Code.
Of those, Article 49, Obligations Code on liability for tortious acts, states that:
“Any person who causes damage to another person, committing a tortious and
unlawful act, is obliged to repair that damage.”
Article 66, on the other hand, regulates the liability of the employer for the
damage caused by the employee. It puts forward that:
The employer is obliged to repair the damage caused to others by his employee in the
performance of the work assigned to him.
The employer is not held liable if he proves that in the selection, instruction and supervision
of that employee he took all due care to prevent the emergence of the damage.
Unless the employer in an enterprise proves that the organisation of such enterprise is
sufficient to prevent the emergence of the damage, he is obliged to repair the damage caused
by that enterprise’s activities.
The employer has the right of recourse against the employee who caused the damage for the
compensation paid to the extent that he is liable in person.
Article 69 is related to the liability of the owner of a construction, and it sets out
that:
The owner of a building or any other construction is obliged to repair the damage caused by
defects in their construction and failures in their maintenance.
The usufructuary and the holder of the right of residence are also severally liable together
with the owner for the damage caused by failures in the building’s maintenance.
The liable persons’ right of recourse against persons liable to them for these reasons is
reserved.
36
Z. Savaşan
and exceed their own property right and its boundaries, impacting the environment
as a result?
Article 730, Civil Code responds to this question, revealing the owner’s liability
with the followings words:
A person who suffers or encounters the risk of harm due to the immovable property owner’s
usage of his property right against the legal limitations of this right may sue for restitution
and compensation for the risk and harm.
The judge can decide the equalization of the damages arising from disorderly conducts
which are proper to the local custom and unavoidable, as due compensation.
In line with the wording of the article, it should be noted that the liability
regulated here is not a liability with fault, but instead an ‘absolute (objective)
liability (liability without fault)’. Indeed, as it does not allow the owner to prove
that he is not liable for the risk or the harm in question, it can be defined as
‘aggravated objective liability’ (Güneş, 2015: 312).
With respect to liability, in addition to the Civil Code, it is necessary to examine
the provisions under the Obligations Code (No. 6098). There are four main articles
which can be applied with regard to the liability of the parties causing environmental destruction or polluting the environment under this Code.
Of those, Article 49, Obligations Code on liability for tortious acts, states that:
“Any person who causes damage to another person, committing a tortious and
unlawful act, is obliged to repair that damage.”
Article 66, on the other hand, regulates the liability of the employer for the
damage caused by the employee. It puts forward that:
The employer is obliged to repair the damage caused to others by his employee in the
performance of the work assigned to him.
The employer is not held liable if he proves that in the selection, instruction and supervision
of that employee he took all due care to prevent the emergence of the damage.
Unless the employer in an enterprise proves that the organisation of such enterprise is
sufficient to prevent the emergence of the damage, he is obliged to repair the damage caused
by that enterprise’s activities.
The employer has the right of recourse against the employee who caused the damage for the
compensation paid to the extent that he is liable in person.
Article 69 is related to the liability of the owner of a construction, and it sets out
that:
The owner of a building or any other construction is obliged to repair the damage caused by
defects in their construction and failures in their maintenance.
The usufructuary and the holder of the right of residence are also severally liable together
with the owner for the damage caused by failures in the building’s maintenance.
The liable persons’ right of recourse against persons liable to them for these reasons is
reserved.
36
Z. Savaşan