The right of compulsory passage is an easement regulated under Article 747 of the Turkish Civil Code (“TCC”) concerning real property ownership. This right allows a property owner to request passage through a neighboring property when there is insufficient access to a public road. The right of compulsory passage grants the property owner the ability to demand access under specific conditions. Such a passage is established as a property-related easement, which the owner may request.

The TCC regulates the right of compulsory passage without infringing on the property owner's rights or causing undue hardship. The passage must be designated in a manner that considers the interests of both parties. The right is primarily directed toward the most suitable neighboring property. If the selected neighbor refuses to provide access, an alternative neighbor who would suffer the least damage is considered. The right of compulsory passage is a direct property-related easement that aims to ensure access to public or private necessities. This right is constitutive, meaning that it is established when the requesting owner demands the creation of an easement on the neighboring property. Consequently, the neighboring landowner becomes subject to an obligation that limits their property rights.

The right of passage does not affect full ownership of the land but grants only a right of access. This right applies solely to the land requiring passage and can be established based on the property’s needs. Since this process involves judicial oversight, the right of passage is determined not only based on the landowner’s request but also by considering the property’s purpose and previous ownership conditions.

1. Conditions for Establishing the Right of Compulsory Passage

Pursuant to Article 747 of the TCC, certain conditions must be met to establish the right of compulsory passage. First and foremost, the property requesting access must lack a sufficient connection to a public road. The necessity of the passage may be classified as absolute or relative, depending on the property’s intended use.

Absolute necessity arises when the property has no exit to a public road. Relative necessity occurs when an existing exit does not adequately meet the property's economic or functional needs. In such cases, the establishment of a passage may not be strictly necessary, but it should be assessed based on legal principles and equity. Before establishing the right of passage, the current condition of the land, its intended use, and possible solutions should be evaluated to determine the most appropriate course of action.

The right of passage requires landowners to make certain sacrifices. Therefore, the principle of “balancing sacrifices” must be considered when granting this right. This principle ensures that the landowner granting the passage suffers the least possible harm while selecting the most suitable route for the requesting property. Ideally, the existing roads and the previous usage of the properties should also be taken into account when determining the passage route.

2. Determining the Appropriate Route for the Right of Passage

The selection of an appropriate route for the right of passage is crucial. According to Article 747/2 of the Turkish Civil Code, the request for passage should first be directed to the most suitable neighbor. If this is not feasible, the passage should be granted through the neighbor who would suffer the least damage. While the right of passage imposes restrictions on ownership, it must also take into consideration neighborhood relations.

When determining the route, the continuity and use of the properties should not be disrupted. If no alternative route is available, a justification for the selected passage must be provided. The width of the passage should also be determined based on the purpose for which the property is used.

3. Right of Passage and Road Width in Agricultural Areas

When establishing the right of passage in agricultural areas, road width is a crucial factor. The width of the passage should be sufficient to accommodate agricultural vehicles while considering the purpose and characteristics of the land. Under Article 747/2 of the TCC, this width is generally set between 2.5 and 3 meters. However, the passage width may vary depending on the structure and needs of the agricultural land. If a wider passage is required, the necessity of such an expansion must be clearly justified in court.

4. Litigation Costs in Right of Passage Cases Are Borne by the Plaintiff

Pursuant to Article 747 of the Turkish Civil Code, the request for a right of passage must be directed to the most suitable neighbor, considering the existing road situation and property ownership. The law grants the requesting owner the right to determine the most appropriate route for access. However, this determination must respect the fundamental principles of neighborhood law and the limitations imposed on property rights by the “balancing sacrifices” principle. This principle aims to protect the interests of the requesting party while minimizing harm to the neighboring landowner.

Since lawsuits regarding the right of passage impose restrictions on property ownership, litigation costs are generally borne by the plaintiff. These costs include court fees, expert witness fees, and other legal expenses. Attorney fees should not be awarded in favor of the plaintiff, as all litigation costs fall upon them. In this context, the 14th Civil Chamber of the Court of Cassation ruled in Decision No. 2020/1627 E. and 2020/4682 K. that in a right of passage lawsuit, litigation costs should be borne by the plaintiff, and ordering litigation costs and attorney fees against the defendant would be unlawful. Consequently, based on the Court of Cassation's ruling, litigation costs must be collected from the plaintiff, and attorney fees should not be awarded in favor of the plaintiff.

5. Conclusion

Lawsuits concerning the right of compulsory passage involve restrictions on property ownership and are based on the principles of neighborhood law. In these cases, the passage route should be determined by considering the usage and integrity of the properties, selecting the most suitable route. Additionally, litigation costs are borne by the plaintiff, and it is not legally appropriate to collect these costs from the defendant. The principles of neighborhood law and the balancing of property rights must be considered to achieve the fairest outcome. Decisions of the Court of Cassation ensure the legal oversight of this process and facilitate the proper application of the law.