Introduction: why land is the first real “permit” in energy
In Turkish energy projects—solar (GES), wind (RES), geothermal, hydro, biomass, storage, pipelines, substations, and transmission lines—the critical path often starts with land. Grid connection may be the headline risk, but land tenure is the risk that quietly kills timelines: an unbankable lease, a missing corridor for the cable route, a pasture/forest restriction discovered too late, or a Treasury parcel that cannot be allocated under the intended legal route.
For investors and lenders, land is not simply “where the plant sits.” It is:
- the foundation for construction permits and environmental approvals,
- a condition precedent in financing,
- the key to enforceability of security packages,
- and a predictable trigger for disputes (with landowners, administrations, and competing users).
This article focuses on land allocation and Treasury properties (Hazine taşınmazları) in Turkish energy projects—how land can be obtained, how the special energy-sector real estate procurement mechanisms work, and how to structure land rights so they survive audits, litigation, and exits.
1) A quick glossary (in investor language)
- Treasury-owned property (Hazine taşınmazı): immovable registered in the name of the Treasury, or land under the State’s rule and disposition (Devletin hüküm ve tasarrufu altındaki yerler).
- Easement right / “irtifak hakkı”: a limited in rem right recorded at the land registry that gives the investor a legally protected right to use a property for a specific purpose (e.g., energy facility, pipeline, transmission line).
- Use permit / “kullanma izni”: an administrative authorization (often used where an easement cannot be registered, especially for certain State-domain lands).
- Preliminary permit / “ön izin”: a pre-stage allowing planning, zoning, and project approvals without physical use of the land (often time-limited).
- Real estate procurement in the electricity market / “taşınmaz temini”: a special mechanism for licensed/pre-licensed energy entities where EMRA (EPDK) or TEDAŞ can run land procurement/expropriation-type procedures and issue decisions that substitute for “public interest” decisions in certain cases. (aydintdiosb.org.tr)
2) The four main land routes used in energy projects
Energy developers typically combine multiple routes in a single project (facility + access road + cable corridor + substation). The main routes are:
- Private acquisition: purchase, long-term lease, or private easement from landowners.
- Treasury land rights via National Property (Milli Emlak): lease, easement, use permit, and preliminary permit under the general Treasury property regime. (LEXPERA)
- Energy-sector real estate procurement: EMRA/EPDK (generation) or TEDAŞ (distribution) conducts the process under Electricity Market Law Article 19, with a Board decision functioning as a public interest decision (no separate approval authority). (aydintdiosb.org.tr)
- Investment incentive land allocation: for investors holding an investment incentive certificate, a 49-year easement/use permit model under the “Public Real Estate Allocation to Investments” rules (commonly linked to Law No. 4706 Ek-3 and the relevant “Usul ve Esaslar”). (LEXPERA)
A financeable project is the one where these routes are deliberately selected, rather than used “ad hoc” after the site is chosen.
3) Electricity Market Law Article 19: the “special lane” for energy land procurement
3.1 Generation projects: EMRA/EPDK conducts land procurement under expropriation framework
For electricity generation activities, Article 19 provides that land procurement actions related to the pre-license/license activity of private law entities are carried out by EMRA/EPDK under the Expropriation Law (and related rules). EMRA evaluates the request; if appropriate, the Board issues a decision. Critically, the Board decision also replaces a public interest decision and does not require approval by another authority. (aydintdiosb.org.tr)
Why this matters: a project company does not need to separately chase a “public interest” approval chain for that decision—yet it must still build a defensible file (site necessity, corridor logic, permits, and project integrity), because mistakes become litigation and schedule risk.
3.2 Registration and “free easement” logic: the Treasury holds title, the investor holds the right
Article 19 also establishes a characteristic structure in energy projects:
- Land obtained through expropriation and/or transfer is registered to the relevant public entity that owns the facility, or if none exists, registered to the Treasury.
- For Treasury-registered land (or land removed from title due to its nature), the public body responsible for Treasury property management establishes a free easement right and/or grants a use permit in favor of the licensed private entity—limited to the license validity period. If easement/use permit cannot be used, leasing is made without charge. (aydintdiosb.org.tr)
This is the legal DNA of many projects: the investor is not “owner,” but holds a public-law anchored right that can be structured to be lender-friendly if drafted correctly.
3.3 Cost allocation and reimbursement: who pays, and what happens if the license ends?
Article 19 is explicit that costs of expropriation, transfer, easement establishment, use permit, leasing, and compensation arising from the project are paid by the pre-license/license holder. It also requires that easement/lease/use-permit agreements on Treasury or State-domain lands must include a clause that validity is limited to the pre-license/license term. (aydintdiosb.org.tr)
If the pre-license holder fails to obtain a license or the license ends or is cancelled, and the expropriated land is later made available to another pre-license/license holder through easement/lease/use permit, the new user must reimburse the expropriation cost paid by the prior entity. (aydintdiosb.org.tr)
Investor takeaway: “land cost” is not merely capex—its recoverability can depend on how the license status evolves and how reallocation is structured.
3.4 Distribution projects: TEDAŞ runs the process
For electricity distribution, Article 19 assigns land procurement to TEDAŞ, again under expropriation rules and with TEDAŞ decisions substituting for public interest decisions (no separate approval). (aydintdiosb.org.tr)
4) The 2021 “Real Estate Procurement Regulation” (EPDK): guarantees, scope limits, and compliance traps
A major practical layer is the regulation titled “Regulation on Real Estate Procurement Transactions Carried Out by EMRA/EPDK” (published 2 November 2021, Official Gazette 31647). It sets procedural rules and—most importantly for investors—financial security requirements.
4.1 The bank guarantee requirement (often underestimated in budgeting)
Under the regulation, a pre-license/license holding private law entity must submit to EMRA a cash amount or a definite and unlimited bank guarantee letter (with confirmation letter, where relevant) in an amount to be determined by EMRA. The purpose is to prevent delays or hardship in paying right holders, cover court/enforcement costs, compensation, expenses, and other damages arising from lawsuits and enforcement against EMRA connected to land procurement. (LEXPERA)
For natural gas distribution land procurement, the regulation says no guarantee is required, but the distribution license holder must submit a declaration that requested parcels are in the investment program. (LEXPERA)
Deal point: this guarantee is not a “mere formality.” It is a liquidity and covenant item, especially in multi-parcel projects or corridor-heavy assets.
4.2 Where EMRA does not act (avoid wrong expectations)
The same regulation clarifies that EMRA does not take action for license-exempt electricity generation land procurement requests, and it also does not act for generation facilities located inside Organized Industrial Zones (OSB) regarding land procurement. (LEXPERA)
5) The general Treasury property regime: what National Property (Milli Emlak) can grant
Even where you are not using the Article 19 “special lane,” most energy investors still need Treasury approvals for related parcels or corridors. The general framework is anchored in the Regulation on the Administration of Treasury Immovables, which regulates sale, exchange, lease, preliminary permit, easement establishment, use permits for State-domain lands, and ecrimisil/eviction procedures. (LEXPERA)
5.1 Why the “general regime” still matters in energy
Energy assets often require:
- temporary staging areas,
- access roads,
- cable routes,
- warehouse space,
- auxiliary facilities (control building, security, water infrastructure),
- and sometimes “non-core” parcels that are not inside the licensed footprint.
These parcels may be processed under general Treasury rules even if the main facility uses Article 19.
5.2 Milli Emlak General Communiqué No. 324: authority and energy-specific references
Milli Emlak General Communiqué No. 324 describes the legal basis and authority for granting use permits and establishing easements on Treasury lands, referencing the State Tender Law No. 2886 and Law No. 4706 and pointing to the Treasury administration regulation as the procedural base. (LEXPERA)
It also contains energy-sector-relevant provisions. For example, it refers to renewable energy generation facilities on Treasury lands being handled based on EMRA’s production license and EMRA’s favorable opinion, and it addresses easement/use permit logic for renewable generation and related infrastructure like access roads and energy transmission lines to the grid connection point (within the framework described in the communiqué text). (LEXPERA)
Practical warning: Communiqué texts often contain legacy transitional incentives (e.g., older commissioning-date discounts). Treat them as history unless you confirm current applicability for your specific project and date.
6) Investment incentive land allocation: 49-year easements and one-year preliminary permits
A separate pathway exists for investors who have an investment incentive certificate and qualify under the “Public Real Estate Allocation to Investments” rules (often discussed in practice as “investment place allocation”). The rules define:
- which public immovables can be allocated,
- how preliminary permits and easements/use permits are structured,
- and how fees are calculated.
These “Usul ve Esaslar” (published in Official Gazette 3 September 2009, 27338) define preliminary permit as a one-year, free-of-charge permission without physical use, aimed at preparing zoning plans, subdivision/merger actions, and project approvals. (LEXPERA)
They also allow a 49-year independent and continuous easement (or a 49-year use permit if easement cannot be established), commonly using a first-year fee calculated as a percentage of the property’s tax value (and detailing how values are determined). (LEXPERA)
Where this fits in energy: it is most relevant when the energy investment is tied to an incentive certificate and the investor wants an allocation route that is explicitly designed for incentivized investments—often useful for large industrial energy users or integrated investment packages (facility + infrastructure).
7) A step-by-step “Treasury land right” roadmap for energy developers
Below is a practical workflow used in bankable projects. The exact authority path varies by province and land type, but the structure remains consistent.
Step 1 — Land classification and restrictions screening (before you pick a site)
Identify whether your target parcel is:
- Treasury private ownership,
- State-domain land (coasts, riverbeds, etc.),
- forest land, pasture, protected area, cultural heritage zone,
- or a mixed corridor requiring multiple regimes.
A single “red flag” (e.g., forest boundaries, pasture status, protected habitat) can shift the entire permitting and litigation profile. Treat this as a due diligence gate, not a late technical check.
Step 2 — Choose the correct legal route (don’t mix regimes accidentally)
Decide early whether the project’s land will be primarily:
- private land rights,
- Treasury easement/use permit via Milli Emlak,
- Article 19 land procurement (EMRA/TEDAŞ),
- incentive-based land allocation (investment incentive route).
This decision drives how you draft:
- term sheets,
- EPC contracts (notice-to-proceed triggers),
- and lender conditions precedent.
Step 3 — Build the application file (make it “audit-ready”)
A strong application file typically includes:
- coordinates and maps consistent across every submission,
- project description and technical summary,
- license/pre-license documents (or incentive certificate if using allocation route),
- land need justification (why this parcel/corridor is necessary),
- schedule and milestones,
- environmental and zoning pathway summary.
If you later face litigation, your first defense is not “we are renewable”; it is “the file is coherent and lawful.”
Step 4 — Institutional opinions and “multi-agency clearance”
Treasury land decisions often require opinions from other institutions depending on land type and use (e.g., agriculture, environment, municipality, infrastructure operators). Time risk often arises here, so sophisticated investors maintain a permit matrix with dependencies and long-stop dates.
Step 5 — Preliminary permit stage (where applicable)
If the route provides a preliminary permit (common in incentive allocation models), use it strategically to complete:
- zoning plan actions,
- subdivision/merger/corrections,
- project approvals,
- and technical file finalization—without triggering premature physical occupation.
The incentive allocation framework explicitly describes preliminary permits as one-year, free, non-use permissions for these purposes. (LEXPERA)
Step 6 — Agreement execution and land registry actions
For easements, the legal strength comes from:
- clear easement purpose and boundaries,
- term alignment with the license/investment period,
- registration at the land registry,
- clear rules on assignment/transfer and lender step-in (within regulatory constraints).
For use permits, the strength comes from:
- clear administrative authorization scope,
- enforceable term and renewal provisions,
- and explicit compliance obligations.
Step 7 — Construction and operation compliance
Treasury land contracts typically impose obligations such as:
- starting investment within defined time,
- completing investment milestones,
- operating according to the stated purpose,
- and preserving the land and environment.
Failure can trigger termination and eviction processes under Treasury rules, which becomes an existential risk for project finance.
8) Bankability and transactions: what investors and lenders check
8.1 Term, renewal, and “license-linked validity”
For energy projects under Article 19, agreements must include that validity is limited to the pre-license/license term. (aydintdiosb.org.tr)
In finance, this translates into: lenders will ask what happens if the license is suspended, amended, or cancelled, and whether land rights survive.
8.2 Transferability and exit readiness
A frequent M&A problem: the land right is technically valid but practically “non-transferable” without administrative approvals or without updating the beneficiary. Exit planning requires:
- drafting transfer/assignment clauses consistent with the applicable regime,
- mapping approval needs as closing conditions,
- ensuring no hidden termination triggers exist due to change of control or restructuring.
8.3 Guarantees and liquidity planning (EMRA land procurement path)
If your project relies on EMRA’s land procurement mechanism, the guarantee letter requirement must be reflected in the financing model and covenant package. (LEXPERA)
8.4 Corridor risk (the underestimated risk)
Projects often secure the main parcel but fail on corridors:
- road access,
- cable route,
- transmission line,
- fiber/communication.
In Turkey, corridor disputes are often where schedule collapses happen because “small parcels” can block energization.
9) Disputes you should expect—and how to reduce them
Common dispute categories
- Tender/award disputes (especially where competitive processes apply).
- Lease/easement termination disputes (non-compliance with investment milestones).
- Ecrimisil and eviction disputes (unauthorized use or continued use after termination).
- Corridor disputes with private landowners or competing projects.
- Administrative litigation challenging underlying permits (zoning, EIA/ÇED, allocation decisions).
Practical dispute-prevention tactics
- Keep a single “truth file” for coordinates, maps, and parcel lists.
- Tie EPC Notice-to-Proceed to land rights reaching a bankable stage (registered easement or finalized use permit).
- Build an evidence package from day one: notices, minutes, approvals, and correspondence.
- Avoid “shadow occupancy” before the legal right is finalized—this triggers both legal and reputational escalation.
10) Checklists you can use immediately
A) Developer / investor checklist (before committing capex)
- Confirm the land regime: Treasury vs private vs State-domain vs forest/pasture.
- Identify whether Article 19 land procurement is available and desirable for the project. (aydintdiosb.org.tr)
- If using EMRA land procurement: budget guarantee letter and timing. (LEXPERA)
- If using investment allocation: confirm incentive certificate eligibility and model 49-year easement/use permit + preliminary permit timing. (LEXPERA)
- Validate corridor rights (roads + cable + transmission).
- Ensure land rights are registrable/bankable and aligned with license term.
B) Lender checklist (project finance perspective)
- Is the land right a registrable in rem right (easement) or an administrative permission (use permit)? What is enforceability risk?
- What events terminate the right (milestones, change of control, license expiry)?
- Is there any “reimbursement” logic if the license is cancelled and land is reallocated (Article 19)? (aydintdiosb.org.tr)
- Are there any pending disputes or objections affecting the parcel?
C) Landowner / local stakeholder checklist
- Identify exactly which parcels and corridors are involved (ask for coordinates).
- Request the project’s EIA/permit and zoning pathway; inconsistencies often signal legal weakness.
- Document current use and losses early (photos, yields, access impacts) if compensation or negotiations arise.
Frequently asked questions
Can a private energy company obtain rights over Treasury land without buying it?
Yes. The common instruments are easement rights and use permits, often combined with a preliminary permit stage, within the Treasury property administration framework. (LEXPERA)
Does EMRA’s Board decision really replace a “public interest decision” for generation land procurement?
For electricity generation land procurement under Article 19, the Board decision is explicitly stated to replace a public interest decision and not require approval by another authority. (aydintdiosb.org.tr)
What is the “investment incentive land allocation” model in simple terms?
If you have an eligible investment incentive certificate, the public allocation rules can allow a structured route: a one-year free preliminary permit (no physical use) and then a 49-year easement (or use permit where easement cannot be established), with fee calculation rules based on property values. (LEXPERA)
Do these land rights automatically survive a project sale?
Not automatically. Transferability depends on the specific instrument (easement vs use permit), the contract clauses, and any administrative approval/notification requirements. Exit planning should be designed from the first draft of the land agreement.
Yanıt yok