MUTUAL OBLIGATIONS OF PARTIES UNDER CONSTRUCTION CONTRACTS OF FLAT FOR LAND 12 June 2024
In construction contracts of flat for land that impose obligations on both parties, the landowner and the contractor have reciprocal rights and obligations. Upon the establishment of the contract, the mutual rights and obligations of the parties arise.
1. Obligations of the Contractor
The contractor's primary performance obligation is to complete the construction as agreed in the contract and within the stipulated time frame, and to deliver the independent sections to the landowner. In addition to this primary performance obligation, the contractor has other obligations to fulfill.
- Obligation to Start and Continue Work on Time
The obligation for the contractor to start and continue work on time arises under Article 473 of the Turkish Code of Obligations (TCO) No. 6098. The start time of the work can be determined by the parties in the contract; if not determined, the debt becomes due at the time the contract is established in accordance with Article 90 of the TCO. It should be understood here that the contractor is to start the work, not necessarily the construction, as certain periods are needed for the preparation of projects and obtaining permits.
- Obligation of Loyalty and Care
Since the construction contract of flat for land is a service contract, the contractor is obliged to work for the benefit of the landowner and avoid harmful behaviors. In other words, the contractor must act with diligence and loyalty towards the landowner. The contractor should start and complete the work on time, show necessary care when constructing and delivering the building, and protect the landowner's interests honestly.
- Obligation to Perform the Work Personally or Under Own Supervision
According to Article 471/3 of the TCO, the contractor is obliged to perform the work directly or have it done under their supervision. However, if the personal characteristics of the contractor are not important in the performance of the work, the contractor may have the work done by others. Although the contractor is obliged to perform the work personally, this does not prevent them from using auxiliary persons.
- Obligation to Deliver
The obligation to deliver is a fundamental obligation for the contractor. Delivery of the work involves handing over the building, constructed in accordance with the contract and technical specifications, to the landowner or the person authorized by the landowner, or notifying that it is ready for delivery. The landowner may refuse to accept the building if it is not delivered in accordance with the contract.
- Obligation to Guarantee Against Defects
Another obligation of the contractor is to guarantee against defects. Following the completion of the construction and its delivery to the landowner, the contractor is under an obligation to guarantee against defects. The obligation to guarantee against defects in a work contract is regulated between Articles 474-478 of the TCO. In construction contracts of flat for land, the contractor is responsible for defects in the construction within the framework of these provisions. For the contractor's liability for defects to arise, the work must be delivered, the construction must be defective, and the existing defect must not originate from the landowner. In addition to all these conditions, for the contractor's liability for defects to arise, the landowner must fulfill the duty of inspection and notification.
2. Rights and Obligations of the Landowner
- Obligation to Deliver the Land
The primary obligation of the landowner is to deliver the land, which is the subject of the contract and on which the contractor will carry out the construction. The landowner must deliver the land to the contractor free from any legal or physical obstacles that would impede construction.
- Obligation to Transfer the Independent Sections Agreed Between the Parties
In a construction contract of flat for land, while the contractor undertakes to construct the independent sections in accordance with the contract and deliver them to the landowner upon completion, the landowner, in return, undertakes the obligation to transfer the independent sections agreed upon between the parties to the contractor.
Accordingly, the landowner's primary performance obligation is to transfer the independent sections to the contractor. In addition to this primary performance obligation, the landowner also has some ancillary obligations. The landowner must transfer these independent sections to the contractor as stipulated in the contract.
- Other Obligations
Matters such as obtaining approval of plans and projects from the competent authorities, obtaining construction permits, and obtaining occupancy permits belong to the landowner due to their relation to property rights. However, some tasks that are the landowner's responsibility can be transferred to the contractor through the contract between the parties.
In practice, a power of attorney is given by the landowner to the contractor for necessary tasks, and these tasks are carried out by the contractor. In this case, the landowner's obligation will be to provide a power of attorney to the contractor so that the tasks within the landowner's responsibility can be performed by the contractor.
REFERENCE
- Zevkliler, Aydın / Gökyayla, K. Emre: Borçlar Hukuku Özel Borç İlişkileri, 13.Baskı, Ankara 2013.
