When another team takes over the site: how can a contractor preserve evidence of its work?

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If your site work will be covered, partly removed or completed by another team, a payment dispute also becomes an evidence-preservation problem. Once the new team works, establishing which work was yours and its state when you left may become harder. For a contractor, court-ordered preservation of evidence can create a technical record for a later claim or defence. It does not, however, order payment, determine justified termination or authorise site work. First identify the specific fact to preserve and the danger of change.

1. Not every payment dispute justifies preservation of evidence

Article 400 of the Code of Civil Procedure (HMK) permits measures such as inspection, expert examination and witness testimony to establish a fact for future proceedings or one not yet due for examination in pending proceedings. A legal interest is required. The prospect that evidence will disappear or become substantially harder to present unless promptly preserved is central. Rather than merely saying that payment is withheld, explain which work will change, how, and why this would hinder proof.

For example, if wall finishes will conceal installed services, recording their route, quantity and condition beforehand may matter. Conversely, a dispute confined to interpreting an already signed payment record does not create the same need for a site inspection. Connect messages about the incoming team, removal notices or current photographs to the risk described in the application. Acceptance of the required legal interest is not guaranteed.

2. Pending proceedings change the court to approach

Under Article 401 HMK, before proceedings exist, the request may be made to the court competent for the merits or the civil court of peace where the object of inspection or expert examination is located. The site connection therefore matters. Whether the merits belong before a civil court of first instance, commercial court or consumer court depends on the parties and transaction; construction disputes are not automatically commercial. A consumer transaction or special jurisdiction rule needs separate assessment.

Once merits proceedings are pending, only the court hearing them has subject-matter and territorial competence for any preservation request. Do not conceal an existing case to pursue a fresh route elsewhere. Provisions on notarial recording of facts remain applicable, but a notarial record, technical expert examination and judicial inspection are different measures. Select the tool suited to the purpose, access position and technical measurements needed.

3. Frame technical questions before presenting a claim calculation

Article 402 HMK requires a written application identifying the fact, proposed questions for witnesses or experts, and risk of losing evidence. Identify the opposing party correctly, including its legal name and address. The statutory exception where circumstances prevent identification requires separate consideration; do not fill gaps by guessing. The contract, project drawings and schedule of locations should make the requested examination intelligible and bounded.

Questions should address observable matters: work in a specified floor or location, quantities, completion, visible condition and subsequent alteration. Asking whether the contractor is conclusively right is no substitute for technical examination. If valuation is requested, distinguish contractual pricing from measured quantities. Previous payments, set-off and defect allegations remain separate issues; the presence of work alone does not prove the net receivable.

4. Urgent preservation does not itself halt site work

Where necessary to protect the applicant’s rights, Article 403 HMK allows preservation without prior service on the opponent. Explain the concrete urgency; a change of team does not automatically qualify. The court subsequently serves the application, decision, record and any expert report. The opponent may object to the preservation decision within one week of that service. This is not a deadline for bringing the monetary claim.

An evidence-preservation decision protects proof. A request to prohibit removal or the incoming team’s work requires separate assessment of interim-injunction conditions under Article 389 HMK and related provisions. The preservation application itself neither prohibits work nor authorises forced entry. Document obstructed access and inform the court; do not gather evidence by breaching safety rules or intervening without permission.

5. Records distinguishing the original team’s work from later work

Match the contract and variations, approved drawings, progress or measurement records, site diaries and original photographs to the same place and time. Separate the work at departure from later completion or removal. Preserve context: a close-up alone may not identify the building, floor or date. Select relevant material without unnecessarily accumulating third parties’ personal information in the file.

Notice of transfer to another team, access requests and responses, any joint record and the new programme may explain the timing risk. Telling an expert that materials were yours differs from documenting that fact. A purchase invoice alone may not show use in this building. If you lack a record, identify what it would establish and possible alternative proof rather than treating it as mandatory in every file.

6. Objections to the decision and expert report have different periods

In the ordinary procedure, Article 402(3) requires the decision to state that objections and additional questions, if any, must be submitted within one week. In the urgent procedure, the week in Article 403 concerns the preservation decision. Article 281 separately addresses defects or ambiguity in an expert report: completion, clarification or a new expert may be requested within two weeks of service. Additional time for difficult specialised or technical work is not automatic and must be requested within the original period.

Article 281 permits a one-time extension of no more than two weeks, beginning when the original period ends. Check service, the object of the objection and the court’s order together; do not assume a universal one-week report deadline. Under Article 405, the preservation file becomes an annex to the merits file, and either party may rely on its records and reports. Obtaining a report does not mean the court will award its figure without examining later objections.

7. Do not automatically add preservation costs to the contract price

Under the express requirement of Article 402(2), subsequent steps do not proceed until the court-assessed preservation expenses are advanced. Follow the current file assessment for inspection, expert and service expenses. Neither one fixed charge nor one completion date applies to every file. Advancing expenses does not guarantee acceptance or recovery of every cost from the opponent.

In its judgment of 28 January 2015, E.2014/6982, K.2015/455, the Court of Cassation’s 15th Civil Chamber rejected adding pre-action preservation expenses to the principal contract-price claim. It treated them as litigation costs to be allocated according to success in the proceedings. The valuation basis was also a separate ground for reversal. The decision does not establish that every preservation report binds the court or that contractors unconditionally recover all expenses.

8. Protect the claim’s time position separately from its evidence

For claims arising from contracts for work, read the five-year regime and serious-fault exception in Article 147(6) of the Turkish Code of Obligations (TBK) together with Article 149 on maturity. No final day should be calculated before identifying the claim and payment conditions. Preservation is not merits proceedings on the debt; do not rely on its application alone to interrupt limitation under Article 154. Do not postpone the claim timetable because preservation, negotiations or further correspondence is underway.

Prepare the monetary action or enforcement route separately. Assess mediation under Commercial Code Article 5/A for commercial monetary actions, or Consumer Protection Law Article 73/A and its exceptions for consumer-court disputes; the preservation file does not satisfy those conditions. Identify the threatened work and correct court, frame technical questions and assemble the evidence chain, while managing the principal claim, service and deadlines in parallel. The full interactive guide organises preparation; it submits no application and determines no entitlement.

Sources

General information; individual documents, facts and procedures need separate review.

Work before a site changes: evidence-preservation preparation guide

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