According to the Regulation on Leasing Uncultivated Agricultural Lands for Agricultural Purposes Published in the Official Gazette dated 22.08.2024; Except for agricultural lands that are privately owned by the Treasury or under the rule and disposal of the State, agricultural lands owned by real and legal persons and not cultivated for two consecutive years may be leased for seasonal agricultural purposes by the Ministry of Agriculture and Forestry.
In this article, first of all, the provision of the Law that is the basis of the aforementioned Regulation will be discussed, and then the rental procedure detailed in the Regulation will be discussed. In the final stage, these regulations, which are in the nature of an intervention in the property rights of real and legal persons, will be evaluated in accordance with the regime of restriction of fundamental rights and freedoms.
Pursuant to the provision added to Article 8/K of the Law No. 5403 on Soil Conservation and Land Use on 23.03.2023;
The Ministry; Except for agricultural lands under the private ownership of the Treasury or under the rule and disposal of the State, the agricultural lands belonging to real and legal persons that have not been cultivated for two consecutive years due to shareholding, ownership dispute, fragmentation, termination of agricultural activity, migration or any other reason, shall determine and lease these lands seasonally for not less than the current market value, with the rental income belonging to the land owners and provided that the land’s characteristics are not changed, in order to bring them into the economy and use them for the public good.
The provision of the said Law has legally enabled the state to lease lands belonging to real and legal persons that have not been cultivated for two consecutive years. The Regulation sets out the procedure for the said legal regulation.
According to the regulation;
The Land Determination Commission determines uncultivated agricultural lands through studies to be conducted on cadastral parcel data, satellite images, geographic information systems, data to be obtained from other public institutions, and on-site land inspections.
In determining uncultivated agricultural lands, the period from September 1 of the current year to August 31 of the following year at the latest is taken into account, taking into account the harvest period that varies by region. If no application is made by any of the owners of the leased agricultural lands during the rental season to carry out production in the next season, these lands are added to the list of uncultivated agricultural lands for two consecutive years.
The list of uncultivated agricultural lands is announced by the provincial/district directorates on-site, electronically, and on the provincial directorate website for a period of 5 days. Land owners and other interested parties may submit their objections regarding the lists to the Land Determination Commission within the announcement period. The Commission decides on these objections within 3 days. The final list created as a result of the evaluation of the objections is finalized with the approval of the civil governor or the person authorized by him.
The current rental prices for agricultural lands included in the finalized list of uncultivated agricultural lands are determined and a List of Agricultural Lands to be Leased is created. The list also includes the products or product groups that tenants can grow. These lands are rented by the Land Leasing Commission, with the rental income belonging to the land owners, provided that the land’s characteristics are not changed and that it is used in agricultural production by the lessor.
The rental transaction can be made on the basis of a single agricultural land parcel, or it can be made to cover more than one agricultural land parcel, taking into account the product to be grown within the scope of production planning, tenant potential and economic efficiency of agricultural production.
The rental fee cannot be lower than the current rental price determined by the Land Leasing Commission. The Land Leasing Commission announces the finalized List of Agricultural Lands to be Leased locally, electronically and on the provincial directorate website for a period of 7 days. The Land Leasing Commission receives rental requests within the announcement period.
Before the announcement process is initiated, the application status of the parcels included in the List of Agricultural Lands to be Leased to the Ministry Registration Systems and whether there is a precautionary measure decision issued by the court that prevents the use of the land are checked. Parcels with a precautionary measure decision are not subject to rental.
Those who want to rent the announced agricultural lands must fill out the Agricultural Land Rental Request Form completely and apply to the Provincial Directorate of Agriculture and Forestry within the announcement period. Rental applications can also be made through the TED Portal. Those who apply as real persons must be citizens of the Republic of Turkey.
Land owners and other interested parties can submit their objections regarding the List of Agricultural Lands to be Rented to the Land Rental Commission within the announcement period. The Land Rental Commission decides on the objections and determines the tenant within 3 days from the date of completion of the announcement period.
Leasing is primarily done to those residing in the settlement where the agricultural land to be rented is located, non-governmental organizations and professional chambers. The agricultural lands to be rented are rented to the specified priority groups, not less than the market rental price, to the highest bidder if more than one bidder is received from the priority groups, and to the highest bidder from the other bidders if no bidder is received from the priority groups. If there is more than one application where the highest rental price offered is equal, the owner who will increase their land to a sufficient income agricultural land size, the enterprise with the bordering or closest land among these applications will be leased by taking into account the order of priority.
A notification including the rental price, rental period, payment terms, the bank account to which the rental price will be deposited, contract expenses such as taxes, duties, fees and other expenses and similar information will be made to the finalized tenants. The rental contract will be issued after the tenant pays the rental price and contract expenses and fulfills other obligations, if any, within 7 days from the date of notification. Notarization and registration of the arranged rental contracts are not mandatory. The tenant presents the document stating that the rental price has been paid to the Land Rental Commission at the stage of signing the contract.
The agricultural land to be leased will be delivered to the tenant with the Land Delivery Report to be prepared on site 15 days from the date of the contract. In addition, tenants will benefit from agricultural supports related to these lands.
If the tenant uses the agricultural land he rents in violation of the Regulation and the lease agreement, he cannot bid for leases to be made within the scope of the Regulation in the following year, provided that the rights of the land owners are reserved.
The tenant is obliged to produce the products/product groups determined within the scope of agricultural production planning on the agricultural land he rents during the rental season, to comply with general agricultural production techniques, to avoid practices that will damage the structure of the soil, and to protect perennial plants and fixed facilities, if any, on the land.
In addition, the rental fee in the rental of agricultural lands is the market rental fee. In order to be used as a precedent in determining the market rental fee of agricultural lands, at least three rented agricultural lands with similar characteristics and in the same settlement area as the agricultural land to be rented are determined.
As can be seen; lands that belong to real and legal persons but have not been cultivated for two consecutive years can be rented by the Land Rental Commission established within the Ministry of Agriculture and Forestry in order to grow certain products or product groups.
According to the regulations in question, the Ministry can lease land based solely on the fact that it has not been cultivated for two consecutive years without attaching any importance to the consent of the landowner. In other words, with the migration from villages to cities, all lands that have not been cultivated for two consecutive years, including idle lands in villages, can be leased by the Ministry without any other conditions. To reiterate, the only limitation in terms of land, other than being suitable for agriculture, is that it has not been cultivated for two consecutive years.
According to Article 35 of our Constitution;
Everyone has the right to property and inheritance. These rights can only be limited by law for the public good. The exercise of the right to property cannot be contrary to the public good.
Although there is a legal basis for the intervention in the right to property due to the Ministry renting out lands that have not been cultivated for two consecutive years (Article 8/K of Law No. 5403), there are also some other conditions required for a right to be limited.
According to Article 13 of our Constitution;
Fundamental rights and freedoms can be limited only by law and only for the reasons specified in the relevant articles of the Constitution, without affecting their essence. These limitations cannot be contrary to the letter and spirit of the Constitution, the requirements of the democratic social order and the secular Republic, and the principle of proportionality.
Such a broad intervention limits the right to use, benefit and dispose of the property right to every land in the country, provided that it has not been processed for two consecutive years. In fact, a short period of time such as two years removes the intervention in rights from being an exceptional situation. When we consider the phenomenon of urbanization, the intervention in the property right with a condition of only two years brings many lands in the country into the scope of regulation. Although it can be accepted that the intervention is made for the public benefit in order to increase agricultural production, the tool used to achieve the foreseen purpose by imposing a short period of time such as two years is being used disproportionately. In this respect, the legal regulation is contrary to the principle of proportionality and does not impose strict conditions on the intervention in the property right, on the contrary, it seriously facilitates it. Moreover, land owners and other interested parties can only object to the Land Assessment Commission within the five-day announcement period. Since objections are not made to the higher authority, this regulation also brings with it the risk of ineffectiveness of the procedure. Therefore, although it has not yet been subject to a court decision, it carries the risk of causing serious disputes in the future.