Real Estate Law
Real estate purchase and sale and other title deed operations are subject to official form and procedural rules. Before applying to the relevant authorities, the documents must be fully prepared and valuation procedures must be completed. At Somas Law & Consulting Firm, we provide our local and foreign clients with the facilities they need at every stage of their real estate purchase, sale and lease operations in Turkey. You can request legal consultancy and advocacy services from our expert team members at every stage, including the preparation of agreements, real estate valuations, compliance with zoning plans, obtaining the necessary permits/permits and completing the land registry and cadaster processes.
Some of the services provided within the scope of Real Estate Law are as follows:
- Negotiation and drafting of real estate purchase and sale agreements, sales promise agreements
- Opening and pursuing title deed establishment, cancellation and registration lawsuits
- Compensation lawsuits filed against the State due to inaccurate maintenance of the land registry
- Cancellation and registration of title deeds due to reasons such as error, fraud, intimidation and overcharge which violate the will
- Cancellation and registration of title deed due to testator collusion
- Lease Agreements, rent determination cases, rent receivables, eviction of the tenant cases
- The tenant’s objection to the rent debt in the eviction case and the method of removing the objection
- Compensation claims arising from the termination of the lease agreement
- Elimination of partnership cases
- Obtaining workplace opening and working licenses and permits and making applications before the relevant official authorities for obtaining this license
- Condominium Easement Agreements
- Construction Contracts, Building Management Contracts, Project Management Contracts, Shopping Centers
- Management Contracts, License Agreements, Brokerage Agreements and Construction Contracts in Return for Flats
- Subcontracting of the construction agreement, disputes between the main contractor and the subcontractor
- Claims arising from delays in site delivery, delays in project delivery, delays in progress payments
- Default of the contractor in the construction works undertaken
- Contractor’s claims for compensation or repairs due to construction defects
- Liability for erroneous instructions of the building owner
- Liability for defective construction site
- Transactions and agreements related to real estate investment trusts
- Determination and payment of wages for construction works that constitute a change of work or additional work
- Failure to pay the wage debt in the construction agreement in full or in part, default in payment and claims such as delay interest and additional damages arising therefrom
- Compensation claim for late delivery of the construction to the landowner
- Claims arising from the non-completion of the construction undertaken on a lump sum basis
- Penalty claim for late delivery
- Preparation of construction agreements in return for flats, disputes arising from the rights and obligations of flat owners
- Establishment of mortgages, follow-up of mortgage foreclosure, Mortgage lawsuits
- Settlement of disputes regarding usufruct right, passage right, personal rights in kind
- Building cooperative management and operations licensing and zoning status determination services
- Agreements for contracting, supply, subcontracting and similar construction services
- Establishment of condominium ownership and easement
- Pre-sale and lease agreements, management plan applications and annotations to the title deed are among our areas of work.
The most common questions we encounter within the scope of Real Estate Law are as follows:
What is an appropriation Action, What is the Legal Nature of the Action and who are the Parties to the Action?
An action for appropriation is an action in rem that the owner, who is not in direct possession, may bring against the non-owner based on the right of ownership and aims to ensure the return or restitution of the wrongfully seized or withheld property.
A appropriation action (property action) is a private law action that protects the right to property against unjust seizure, seizure or retention by third parties. The legislator has granted this right of action to the owner based solely on the right of ownership, regardless of the relationship of possession.
Since the action for appropriation is based on the right of property, it is an action in rem. In Turkish Law, the action of appropriation is not subject to statute of limitations. The owner, who is not in direct possession, may bring this action against the wrongful non-owner at any time.
The plaintiff in an appropriation action is the owner who has been unjustly seized or detained from a movable or immovable property on which he has a property right, and has therefore lost his direct possession.
The defendant in an appropriation action is the person who wrongfully seized the property and is still in possession of it.
What is a Prevention of Encroachment (Prevention of Intervention) Lawsuit and who are the Parties to the Lawsuit?
Here, although the property is under the control of the owner, its proper use and enjoyment is restricted, prevented or made difficult. The owner’s right of ownership and the exercise of the powers provided by this right are unjustly interfered with. The purpose of the lawsuit is to restore the use of a movable or immovable property as it was before, without any wrongful interference from outside.
The action for prevention of encroachment is an action for performance. The first condition for filing this lawsuit is that the wrongful interference (encroachment) is ongoing at the time of filing the lawsuit or there is a possibility of such interference in the future.
The plaintiff in the action for prevention of encroachment is the person whose property right has been wrongfully encroached upon, i.e. the owner. In case of joint ownership, in principle, all shareholders or partners should file the lawsuit.
The defendant party in the action for prevention of encroachment is the private or legal person who unfairly encroaches on the disputed property.
What are the Types of Property Rights According to the Number of Right Holders?
The right of ownership is divided into individual (personal) or joint ownership according to the number of right holders. Joint ownership is divided into shared (joint) and cooperative ownership according to the partnership relationship and the elimination of the partnership on them is resolved according to the rules specific to their structure.
What is Shared Ownership?
In order for shared ownership to occur, it is necessary that more than one person owns the property and that this property is not shared among the owners. According to Article 688 of the Turkish Civil Code; in shared ownership, more than one person owns the whole of something that is not materially divided with certain shares. Unless otherwise determined, the shares are considered equal. Each of the shareholders shall have the rights and obligations of the owner in respect of his/her share. The share may be transferred, pledged and seized by creditors.
- In Shared Ownership, each shareholder can transfer and dispose of his/her share independently of the others.
- Since the shareholders have the right to be the owner of their shares, limited real rights such as usufruct, immovable burden and personal rights such as usufruct, usufruct, usufruct can also be annotated to the title deed.
- In the event that one of the shareholders sells his/her share to a third party, the other shareholder has the right of priority purchase by exercising his/her pre-emption right.
- Since each share may be subject to disposition independently of the other, creditors may attach the owner’s share.
- According to Article 693 of the Turkish Civil Code, each of the shareholders may benefit from and use the shared property to the extent compatible with the rights of the others. In case of dispute, the judge shall determine the manner of utilization and use. This determination may also be in the form of dividing the use of the shared property among the shareholders by time or place. Each of the shareholders may represent the other shareholders for the protection of the indivisible common interests.
- The use and management of shared ownership can also be determined by agreement.
- In the event that the stakeholders cannot agree on the use and management of the property; disassociation from the stakeholder (partnership) may be resorted to.
What is a Lawsuit for Exclusion from Shareholding (Partnership)? Who are the Parties to the Case?
Shared ownership is a joint ownership relationship. In this relationship, there are multiple shareholders and they form a community among themselves. Article 696 of the Turkish Civil Code grants the shareholder or shareholders the right to request the removal of the other shareholder or shareholders from shareholding by a court decision, provided that the prescribed conditions are met. The reason for this is to remove the shareholder or shareholders who have disturbed the peace among the community of shareholders to such an extent that the continuation of the shared ownership relationship becomes unbearable.
In terms of the plaintiff of the action for deprivation of shareholding, the legislator has stipulated a qualified majority in terms of the shareholder or shareholders who will file the action. Here, the plaintiff or plaintiffs must have both a majority of shares and a majority of shareholders, unless otherwise agreed.
The defendant of the action for disassociation from shareholding; this lawsuit is brought against the plaintiff shareholder or shareholders who, by grossly violating their obligations towards the plaintiff shareholder or shareholders, make the continuation of the shared ownership relationship unbearable for them. If the judge finds the lawsuit justified, he/she shall decide whether or not it is possible to separate this share from the lawsuit. If it is possible, he/she decides to remove the share from the partnership through partition. If it is not possible to divide the share in this way, then the partnership can be eliminated by selling it to the shareholders, if the shareholders have a request; if not, it can be sold to third parties.
What is Cooperative Ownership (Co – Ownership)?
Article 701 of the Turkish Civil Code defines co- ownership as follows:” “The property of those who jointly own the goods due to the community formed in accordance with the law or the agreements stipulated in the law is co- ownership.” In short, the co-ownership of a thing by more than one person due to a pre-existing personal community between them is called co-ownership. The main feature of co-ownership is that there is a special partnership relationship, the shares are not certain, and the co- ownership is established on a good or asset. Examples of co-ownership arising from the law or legal relationship can be given as husband and wife partnership, family property partnership, ordinary company.
In this type of ownership, the lawsuit to be filed against the owners regarding the goods entering into the partnership must be directed against all owners. It is possible to convert co- ownership into shared ownership upon request. However, such an operation must be unanimous.
What is a Lawsuit for Dissolution of Partnership?
These are the lawsuits in which a shared ownership is resolved by itself or by selling the property and sharing its value. It is filed in the civil court of peace where the immovable is located. According to Article 699 of the Turkish Civil Code, “Sharing is realized by dividing the property in kind or by selling it through negotiation or auction and dividing the price. If there is no agreement on the method of division, upon the request of one of the shareholders, the judge decides to divide the property in kind, and if the values of the divided parts are not equal to each other, the judge decides to provide equalization by adding money to the part with the missing value. If the request for division is not deemed appropriate to the circumstances and conditions, and especially if it is not possible to divide the shared property without a significant loss of value, a sale by auction shall be ordered. The decision to order the sale by auction among the shareholders shall be subject to the consent of all the shareholders.”
What is Condominium Ownership, What is its Legal Nature?
In terms of our legal system, condominium ownership is an institution that separates the independent parts of a completed structure (building), which are suitable for separate and independent use, from the whole, giving them an independent character and thus making them the subject of the right of ownership. In this respect, condominium ownership is a special type of immovable property, which has been accepted in order to meet the housing shortage of the masses, forced by social and economic needs.
Condominium ownership is an independent property right established on the independent sections of a completed building, such as floors, apartments, business offices, shops, stores, and cellars, warehouses, which are suitable for separate and independent use. In short, “the right of ownership established on independent sections is called condominium ownership”. The person who owns this right established on independent sections is called a condominium owner.
The first condition for the establishment of condominium ownership is the existence of a completed building. Another condition is that this structure is divided into independent sections.
How is the Establishment of Condominium Realized?
Condominium Ownership can be established as Voluntary Establishment and Establishment by Judge’s Decision. Namely
1 – Voluntary Establishment: The voluntary establishment of condominium ownership requires a legal reason, i.e. registration with an obligatory operation (agreement). According to Article 10/I of the Law of property ownership, “condominium ownership… shall be established by official deed and registration in the land registry.” The authority to issue the official deed is the land registry officer according to Article 13/I of the Law of property ownership.
2-Establishment by Judge’s Decision: The shareholders may sue for the elimination of the partnership on an immovable property that is suitable to be subject to condominium ownership. Pursuant to Article 10/V of the Law of property ownership, “in cases for the elimination of the shareholding on an immovable property that is suitable to be subject to condominium ownership, if one of the heirs or co-owners requests that the sharing be made through the establishment of condominium ownership and the allocation of independent sections, the judge may decide to convert the ownership of that immovable property into condominium ownership and to allocate the independent sections to the partners separately by equalizing the shares. ”
What are the rights of condominium owners?
a) Rights over independent sections and annexes
The condominium owners have the right of individual (single person) ownership over the independent sections and the annexes attached to them. For this reason, each condominium owner may, in principle, perform all kinds of obligatory operations and disposals on the independent sections and annexes that the Civil Code recognizes to the owner. For this, they do not need to obtain the consent of the other condominium owners.
The condominium owner may transfer the ownership of the independent section to another person, as well as pledge it, and may establish residence, usufruct and some easement rights on it. According to Article 6/III of the Law of property ownership, the condominium owners may not establish “easements on the independent section which are incompatible with the condominium ownership and the rights of other condominium owners…”
The condominium owners may also benefit from all kinds of claims and litigation rights related to ownership and possession.
b) Rights over common areas
The condominium owners own all common areas of the main real estate in proportion to their land shares, according to the provisions of shared ownership. In condominium ownership, the owners cannot transfer their shared ownership rights in the land and common areas separately from the independent section and cannot register them with limited real rights. Since these shares are allocated to the condominium, in other words, to the independent sections, they cannot be transferred independently of it, cannot be subject to limited real rights, and cannot be subject to debtor operations.
Each flat owner can benefit from and use the common areas.
What is a Condominium Easement?
Pursuant to Article 2/I/- c of the Law of property ownership, “The easement right established by the owner or co-owners of a land for the independent sections of one or more buildings to be built or being built on a land to be subject to condominium ownership in the future, in accordance with the provisions of this law, is called (condominium easement), and those who have this right are called (condominium easement owner)”.
“A condominium easement is such an easement right established in connection with the land share that it authorizes the owner to demand the construction or completion of the building within the period written in the agreement and to demand the conversion of the easement into condominium ownership at the land registry office upon completion of the building.”
The condominium easement is born with an official deed (agreement) made in the presence of the land registry officer and registration in the land registry.
What are the rights of condominium owners?
According to Article 17/I of the Law of property ownership, the owners of the condominium easement have the right to request and sue mutually for the fulfillment of their obligations for the commencement and completion of the construction to be made on the common land within the period written in the agreement. The owners of the condominium easement may appoint one or more persons from among themselves or from outside as managers for the completion of the construction.
In real estates where a condominium easement has been established, if the building has actually been completed and two-thirds of the independent sections have actually started to be used, the provisions of condominium ownership shall apply to the management of the main real estate, even if the condominium ownership has not been established (Article 17/III of the Law of property ownership).
What is a Timeshare Right?
If the right to benefit from this structure or independent section in certain periods of the year is established in favor of each of the co-owners of a building or independent section suitable for use as a residence, as an easement right depending on the share of shared ownership, this right is called a timeshare right. (Law of property ownership Art. 57) In other words, it is an easement right that authorizes the shareholders of a residential building to benefit from the residence exclusively in the time period allocated in a certain period of the year depending on the share of shared ownership.
The timeshare right can only be established in residential buildings, converted to condominium ownership or condominium easement, or in detached buildings. The timeshare right may be transferred and assigned together with the fractional ownership share to which it is attached and passes to the heirs. In this case, the timeshare right cannot be transferred to a third party alone, nor does it pass to heirs. Real rights compatible with this right may be established on the timeshare. The timeshare right should be reserved for certain periods of the year and should not be less than 15 days.
What is the acquisition of immovable property?
Acquisition of immovable property is divided into various types. The most important of these are “acquisition by transfer – acquisition in principle”; “acquisition by registration – acquisition without registration”.
Acquisition by transfer; In the acquisition of immovable property by transfer, the property right belonging to one person passes from this person to another person. The right of ownership of the winner in the acquisition by transfer depends on the condition that the right of ownership of a previous owner (predecessor) exists. Acquisition by transfer can be realized either through a legal operation, i.e. a legal act, or by way of a universal subrogation. In the case of the acquisition realized upon the execution and performance of the sales agreement, the acquisition is based on the succession by subrogation.
Acquisition in principle; the right of ownership is acquired on the basis of the own act of the person who acquires the right or the reasons enumerated in the law. In acquisition in principle, the person who acquires the right of ownership acquires the right of ownership directly in his/her own person, independent of the right of ownership of another person, i.e. the previous owner. Here, the acquisition is not based on the property right of another person, and the property right does not pass from one person to another person.
Whether the right of ownership on immovable property is acquired by transfer or in principle acquisition, ownership is acquired either at the time of registration or before registration. According to the moment of acquisition of the right of ownership, this acquisition is divided into two as “acquisition with registration” and “acquisition without registration” (acquisition before registration).
Acquisition by Registration; in cases where the acquisition by transfer is based on a legal operation that is based on a successio singulars, i.e. inter vivos or upon death, the acquisition of ownership is only possible through registration in the land registry. According to Article 705/I of the Turkish Civil Code, “Acquisition of immovable property shall be by registration.” Again, Article 1022 of the Turkish Civil Code states that “Rights in rem arise upon registration in the land registry.” is included in the provision. In this case, registration is constitutive in terms of the acquisition of the right of ownership. This is also called the “principle of absolute registration”.
Unregistered Acquisition; the right of ownership on immovable property is acquired before registration. As a matter of fact, according to Article 705/II of the Turkish Civil Code, “In cases of inheritance, court decision, forced execution, occupation, expropriation and in other cases stipulated by law, ownership is acquired before registration. In the case of simple subrogation, i.e., in the case of acquisition by transfer based on a legal operation other than a legal operation, or on any other reason listed in the law, the property is acquired without registration (also before registration). However, in order to dispose of the immovable property, a registration is made in the land registry. This registration does not establish the right of ownership, but has a declarative and explanatory nature. Here, ownership is acquired not through registration, but through the realization of a reason or fact stipulated in the law.
Acquisition of Immovable Property by transfer based on Registration: transfer by registration is the acquisition of the property right belonging to one person by another person based on a legal operation. In the transfer based on registration, the right of ownership passes from one person to another person and changes owners. Since the acquisition of ownership in this way depends on the transfer of an existing right, it is called acquisition by transfer. In acquisition by transfer, the right of ownership passes to the acquirer together with all the real records (limited real rights such as pledges, easements, etc.).
The transfer of the right of ownership based on registration requires the existence of two constitutive conditions, two separate legal operations. The first of these is the “obligatory operation” that gives rise to the obligation to transfer the ownership, i.e. the “cause of acquisition”. This is also called “legal cause”. The second operation is the “acquisition operation” or “disposition operation”, i.e. registration. In a transfer based on registration, the right of ownership passes at the moment of registration. The valid transfer of the right of ownership depends on the coexistence of these two operations and especially the validity of the reason for acquisition.
What is a fiduciary operation (fiduciary transfer)?
A fiduciary operation is an operation that involves the obligation of the believer to transfer a property or right included in the assets of the believer as security for a debt or to be administered, to the believer in order to create a stronger legal situation than ordinary legal operations pursuing the same purpose, and then to transfer it again. With a fiduciary operation, the believer transfers a good or right to the believer in order to use it in a certain manner and for a certain purpose, and then to return it when this purpose is realized. A fiduciary operation only applies to savings operations. A fiduciary operation arises from an agreement between the parties. In a fiduciary operation, a person (the believer) transfers property or a right of claim to the believer for a certain period or purpose, but when the period expires or the purpose is realized, the believer undertakes the obligation to transfer the property or right of claim back to the believer according to the fiduciary agreement.
What is a Promise of Sale of Real Estate?
It is a formal agreement that creates an obligation to transfer the ownership of immovable property. As a condition of form; it must be in the form of an ex officio agreement issued at the notary public or at the title deed office. A registration case can be filed based on this official agreement. The rights arising from the sales promise agreement can be transferred. Promise of sale agreement can be executed on immovable property subject to shared ownership and unified ownership.
What is the Acquisition of Immovable Property without Registration (Before Registration)?
According to Article 705/II of the Turkish Civil Code, “In cases of inheritance, court decision, forced execution, occupation, expropriation and other cases stipulated by law, ownership is acquired before registration. However, in these cases, the owner’s ability to perform disposition operations depends on the registration of the ownership in the land registry.
Acquisition of immovable property prior to registration may be either by acquisition in principle or by acquisition by transfer. If the right of ownership is acquired by relying on another person’s right of ownership, there is a transfer without registration. For example; inheritance. On the other hand, if the right of ownership is acquired independently without relying on another person’s right of ownership, there is a case of acquisition in principle without registration. Here, the ownership of immovable property is acquired independently from the land registry before the registration, and the registration is not constitutive, but explanatory, declaring the legal status. However, in order for the owner to make disposals on the immovable property acquired in this way, it must be registered in the land registry.
The cases of acquisition of property before registration are listed in Article 705 of the Turkish Civil Code. However, there are also cases of acquisition without registration other than this article. For example, extraordinary acquisitive prescription, which is not listed in the aforementioned article? The main cases of acquisition without registration are as follows:
Article 705 of the Turkish Civil Code lists inheritance as one of the ways of acquiring ownership prior to registration. In our inheritance law system, the property rights in the estate of the heir automatically (by law) pass to the heirs as a whole when the inheritance is opened. According to Article 599/I of the Turkish Civil Code, “The heirs acquire the inheritance as a whole upon the death of the heir by law.” However, according to Article 705 of the Turkish Civil Code, registration in the land registry is required for disposition operations.
2-What is Expropriation?
Expropriation is defined as the acquisition of the ownership of immovable properties subject to private property by public law legal entities through an administrative decision in cases where public interest requires it. According to the Expropriation Law, the negotiated purchase method must first be tried by the administration. If a compromise cannot be reached over the price determined by the administrative appraisal commission, then the judicial remedy can be applied. In this case, a lawsuit can be filed in the Civil Court of First Instance for the determination of the expropriation price and the registration of the expropriated immovable in the name of the administration.
– Depending on the type of immovable, expropriation may be carried out partially or completely on the immovable with or without a title deed.
– If no action has been taken within 5 years from the finalization of the expropriation decision in accordance with the purpose of expropriation, then the right to reclaim the expropriated property arises. If the administration refrains from returning and registering the expropriated property, then a registration lawsuit may be filed against the administration. In this case, the owner of the immovable must pay back the expropriation price together with interest.
3- Compulsory enforcement
Compulsory auction is an official public act of the enforcement and bankruptcy officer and is not an agreement of sale. In the event that a seized immovable is foreclosed pursuant to the Enforcement and Bankruptcy Law, the right of ownership passes at the moment the bailiff auctions it to the buyer. Pursuant to Article 123 of the Enforcement and Bankruptcy Law, immovable properties are sold by the enforcement office through auction. Likewise, pursuant to Article 134/I of the same Law, “The buyer to whom the immovable property is auctioned by the enforcement office acquires the ownership of that immovable property.” Since the ownership of immovable property is acquired through auction in forcible execution, one of the ways of acquisition of ownership before registration according to Article 705 of the Turkish Civil Code is in question here.
According to Article 705 of the Turkish Civil Code, ownership of immovable property may also be acquired prior to registration by a finalized court decision. Here, the decisions that confer ownership are novelty-inducing decisions that have become final judgments in formal terms. In order for a novelty-inducing decision to directly transfer ownership before registration, it must become a final judgment in formal terms. A decision of this nature definitely creates a new situation in the property relationship and has the ability to be executed automatically (directly). The person who acquires ownership through a court decision may notify the land registry office and have it registered.
Occupation is a form of acquisition of the right of ownership on immovable properties that have become unclaimed as a result of the owner’s request for abandonment of the registration of an immovable registered in the land registry, through possession, without relying on registration. The acquisition of ownership in this way is not based on a legal operation between the former owner and the new owner. The consent of the former owner is not required for the acquisition of ownership. As a matter of fact, according to Article 707 of the Turkish Civil Code, this is titled “Occupation”,
“The acquisition of the ownership of an immovable registered in the land registry by occupation depends on the fact that its registration has been canceled at the owner’s request.”
“Property cannot be acquired through occupation on immovable properties that are not registered to the title deed”
Occupation is divided into two according to whether the immovable property to be acquired is registered in the title deed or not. According to the aforementioned article, unclaimed immovable property to be acquired is either immovable property on which no one has ever established a property right, or immovable property on which a property right has been established, but which has become unclaimed through abandonment.
What is Acquisition of Immovable Property by Prescription?
The acquisition of ownership of a thing (an immovable property) as a result of possession of that thing for a long time without objection is called acquisition by prescription. In the acquisition of the right of ownership by prescription, it is not the prescription that reduces the right, but the prescription that gives the right.
On the one hand, the right of a person who does not use immovable property for a certain period of time, on the other hand, who is in possession of this property, and therefore does not object to this use of the person who uses this property and does not file a lawsuit against him, should be terminated; on the other hand, it should be accepted that the person who has this property in his actual possession under certain conditions has acquired the right of ownership of this property.
Acquisition of immovable property by way of prescription occurs in two ways. These are “ordinary prescription” according to Article 712 and “extraordinary prescription” according to Article 713 of Civil Code.
a) Acquisition of immovable property by ordinary prescription
According to Article 712 of the Turkish Civil Code, “If the person who is registered as the owner in the land registry without a valid legal reason continues his possession of the immovable for ten years without interruption and in good faith, his right of ownership acquired in this way cannot be challenged.”
It is seen that here, an immovable registered in the land registry is used by a good faith possessor as the owner for 10 years without a lawsuit and without interruption, based on an incorrect registration, and at the end of this period, ownership is acquired. In order to acquire ownership of immovable property by ordinary prescription, the following conditions must be met.
b) Acquisition of immovable property by extraordinary prescription
The extraordinary prescription regulated under Article 713 of the Turkish Civil Code constitutes one of the ways of acquisition of immovable property. Extraordinary prescription is the acquisition of the ownership of immovable property which is not registered in the land registry, or which is registered in the name of a person whose owner cannot be determined from the registry, or who is registered in the name of a person who has been declared absent, by the possessor based on a possession that continues for twenty years without a lawsuit and without interruption, in the capacity of owner.
What is the Legal Actions Limiting the Authority to Transfer Immovable Property?
Purchase, repurchase, pre-emption rights and other rights arising from the law can be listed as legal operations restricting the transfer of immovable property.
1- Right of purchase (subsidiary) on immovable property
A purchase agreement is an agreement that gives the creditor the right to purchase the immovable property with a unilateral declaration of will. If it is annotated to the title deed, it can be asserted against any owner of the immovable. If the owner of the immovable does not fulfill his/her obligation, he/she may request the court to give the immovable to him/her through a registration lawsuit.
2- Right of repurchase on immovable property
The right of repurchase is a right of purchase granted to the owner who assigns the immovable to another person. The owner of the right of repurchase has the right to purchase the real estate with a unilateral declaration of will. Provided that it is annotated to the title deed, it can be asserted against any owner within the annotation period and a registration lawsuit can be filed in case of dispute.
3- Contractual pre-emption right
It is the right to purchase the immovable property with priority under the same terms and conditions. It can be annotated on the immovable property. It can be asserted against the last owner. The in-kind effect of the annotation continues for a maximum of 10 years. According to Article 241 et seq. of the Code of Obligations; the seller or the buyer is obliged to notify the owner of the right of pre-emption that the sales agreement has been concluded and its content through a notary public. If the sales agreement is abrogated after the pre-emption right is exercised, or if it is not approved due to reasons arising from the buyer’s person, this situation cannot be asserted against the holder of the pre-emption right. Unless otherwise stipulated in the agreement establishing the right of pre-emption, the holder of the right of pre-emption acquires the immovable property on the terms of the sale agreed by the seller with the third party. The above provisions shall also apply to operations which are economically equivalent to a sale.
Art. 242- The right holder who wishes to exercise the right of pre-emption arising from the agreement must file a lawsuit against the buyer, if this right has been annotated and the ownership of the immovable has been registered in the name of the buyer; otherwise, against the seller, within three months starting from the date of notification of the sale or any other operation economically equivalent to the sale, and in any case within two years starting from the date of the sale.
– The lawsuit arising from pre-emption shall be filed in the court where the immovable property is located.
– After the exercise of the pre-emption right, if the owner does not fulfill his/her obligation, the owner of the pre-emption right may request the registration of the immovable property on his/her name by depositing the sale price in the court cashier within the period determined by the judge.
4- Preemption right arising from the law
In the event that one of the co-owners of the immovable property sells his/her share to a third party, the other shareholders have the right to purchase this sold share first. Legal pre-emption is only valid for jointly owned immovable properties. According to the established jurisprudence of the Court of Cassation; in order for the 3-month pre-emptive period to start, the owner of the pre-emption right must have learned the subject of sale, the price, payment terms, and the buyer. The right of pre-emption can be exercised by filing a lawsuit. Again, in order for a registration decision to be made by the judge, the price of the immovable must be paid to the court cashier.
What are pre-emption and repurchase agreements?
Some agreements limit the power of legal disposition, especially the power of transfer (assignment). These are divided into three as contractual pre-emption, purchase and repurchase rights. These agreements, which have personal consequences, are also effective against third parties by being annotated to the title deed.
What is a contractual pre-emption right (pre-emption agreement)?
The right of pre-emption arises from both agreement and law. Article 735 of the Turkish Civil Code regulates the contractual pre-emption right. Accordingly, “the right of pre-emption arising from the agreement annotated in the land registry may be exercised against any owner within the period and according to the conditions specified in the annotation.
In any case, the effect of the annotation shall expire ten years after the date of the annotation. The provisions regarding the exercise and renunciation of the legal pre-emption right shall also apply to contractual pre-emption. The contractual pre-emption right is not a restriction arising from the law, but a restriction arising from the will of the owner, i.e. a voluntary restriction. Here, the owner enters into an obligation through an agreement with a third party and restricts his right to transfer the immovable property burdened with pre-emption as he wishes. Therefore, there is a voluntary restriction on the transfer of the right of ownership. The source of this is the pre-emption agreement.
The right of pre-emption arising from the agreement is a constructive right of action, which results in the court taking the ownership of this immovable from this person and registering it in the name of the owner of the right of pre-emption, upon the lawsuit filed by the debtor of pre-emption, in the event that the relevant immovable is disposed of by the debtor of pre-emption to a third party.
What are the types of contractual pre-emption rights?
The right of pre-emption arising from the agreement is divided into two as “ordinary pre-emption right (unlimited pre-emption right)” and qualified pre-emption right (limited pre-emption right)”. If the conditions for exercising the right of pre-emption are specified in the annotation given to the land registry, qualified pre-emption right; if not, ordinary pre-emption (unlimited pre-emption right) is in question. Here, only the right of pre-emption is agreed. For this reason, in ordinary pre-emption, the buyer who has the right of pre-emption must fulfill the same conditions and pay the same price as the buyer purchased the real estate. On the other hand, in qualified pre-emption, the parties agree on some special conditions regarding the price or duration in the pre-emption agreement. In qualified pre-emption, the right of pre-emption is exercised in return for this price and within this stipulated period.
The right of pre-emption is divided into two according to whether the subject of this right is immovable or movable property. The right of pre-emption that is subject to immovable property is called “immovable pre-emption right” and the other is called “movable pre-emption right”.
According to the form of the legal operation in which the right of pre-emption is made, the right of pre-emption is divided into two as “the right of pre-emption based on an inter vivos legal operation” and “the right of pre-emption based on a testamentary disposition”.
According to whether it is annotated to the land registry or not, the right of pre-emption is divided into two as “the right of pre-emption annotated to the land registry” and “the right of pre-emption not annotated to the land registry”.
What is the annotation of the family residence (Turkish Civil Code. 194 III)?
One of the new means of protecting the family in the new Turkish Civil Code is the family residence. Article 194 of the Turkish Civil Code protects the spouse who owns the family residence against the disposals that may victimized the other spouse. The spouse who owns the family residence may only dispose of the family residence with the consent of the other spouse. In order to ensure the effect of this protection on third parties, Civil Code Article 194 (3) allows the annotation of the family residence to the title deed. This annotation prevents the spouses from disposing on the family residence independently of each other.
If the family residence has been transferred to another person or a right in rem has been established on it without the consent of the other spouse, the spouse in whose favor such an annotation has been made may request the annulment of such land registry, registry operation records made without his/her consent in accordance with Article 1025 of the Turkish Civil Code, and the person who has rights through these operations cannot claim acquisition in accordance with Article 1023. In other words, if the family dwelling is not annotated to the title deed, only Article 194 of the Turkish Civil Code Article 194 cannot prevent third parties in good faith from acquiring real rights according to Article 10 of the Turkish Civil Code.
The spouse may unilaterally annotate the family residence to the title deed without the consent of the other spouse.
What is the Restriction of the Spouse’s Savings Authority by a Judge’s Decree (Turkish Civil Code. 199)?
If there is a danger of a spouse endangering the family assets or making them unable to fulfill their family obligations, the judge of the family court, upon the request of one spouse, may restrict the spouse who caused this situation from disposing of some or all of the assets with the consent of the other spouse. If such a restriction order is related to the immovable property of the spouse, the judge shall ex officio take the necessary action to annotate this restriction order (consent of the other spouse) to the title deed pursuant to Article 199 (3. F.) of the Civil Code.
If this decision of the judge is not annotated to the title deed, pursuant to Article 1010, Art. 1010./2. f and Art. 1023, the rights of the persons who do not know and are not in a position to know this situation will be protected from the registration operations made without the consent of the spouse. If the decision is annotated, it is no longer possible for third parties to claim that they did not know about it.
After the decision is annotated to the title deed, the spouse may sue for their cancellation according to Article 1025 of the Civil Code, since any registration without the consent of the spouse will be invalid.
What are the Land Registry and Cancellation Cases Arising from Contract Law?
In practice, the most common disputes in land registry and annulment cases arise from the contractual relationship between the parties.
1- Title Deed Registration and Cancellation Lawsuits that may be filed due to forgery:
In terms of criminal law, forgery is the crime of forgery when a document in which the public has confidence is issued in violation of the truth, or when an addition is made to the real document, or when all or part of it is changed. Forgery may occur for many reasons such as the signature in the power of attorney not reflecting the truth, falsification. The allegation of forgery can be proved with all kinds of evidence. The new legal result resulting from forgery, the acquisition is null and void with absolute nullity.
2- Title Deed Registration and Cancellation Cases Based on Collusion
Collusion may be mentioned in the event that the declarant and the addressee want this action to be valid against third parties even though the declaration does not reflect the reality. A collusive agreement is void. The judge may consider the collusion automatically. Collusion can occur in two ways. The parties do not want to enter into any agreement, but they make a declaration of will to enter into an apparent agreement. This agreement is null and void. In the other way; the parties actually want to conclude an agreement and they do so, but they appear to be concluding an agreement in order to hide another agreement. In this case, the ostensible agreement is not valid, and as a rule, the actual agreement is valid. If the agreement that is really intended to be concluded depends on the form, then this agreement will also be null and void.
The claim of collusion may be asserted at any time, regardless of the time limit. The disappearance of the fixed period does not become valid with the consent of the relevant person. Third parties may also assert the collusion claim.
Collusion can be diversified as absolute collusion, relative collusion, collusion in the agreement, collusion in the terms of the agreement, and collusion in the person.
3- Title Deed Registration and Cancellation Cases Due to Contract of Faith
It can be defined as the transfer of a thing or right in the assets of the believer to the believer in order to constitute collateral or to be returned after the purpose is realized or after the expiration of the specified period. In other words, in this type of agreements, the transferred property is intended to be returned after certain conditions are met. This type of transfer can be made for collateral or for collection. A common example is to transfer the immovable property to the relevant party until the debt is paid and to take it back when the debt is over due to the fact that the immovable mortgage and its procedure is long and difficult.
4- Title deed registration and annulment cases due to Testator Collusion
Testator collusion is a type of relative collusion specified in Article 18 of the Code of Obligations. These are agreements made with the intention of reducing or depriving some of the heirs of the heir of the heir. The apparent agreement manifests itself in the form of a secret agreement with the aim of deceiving the heirs or third parties. The lawsuit based on testator collusion is not subject to a time limit. The lawsuit is filed in the court where the immovable property is located.
5- Title Deed Registration and Cancellation Cases Due to Overcharge
It can be defined as one party in an agreement benefiting from the other party in a way that excessively exploits the other party. By taking advantage of the person’s inexperience and difficult situation
The benefit is obtained by making the obligor undertake much more than the performance he/she has undertaken. While in case of mistake, fraud and duress, the agreement is invalidated by absolute nullity; in case of Overcharge, relative invalidity is accepted and the possibility to continue the agreement according to the request of the injured party is also provided. Collusion and Overcharge cannot be asserted in the same case.
6- Title Deed Registration and Cancellation Cases Due to Will Impairing Reasons
Since error, fraud and intimidation are reasons that impair the will, it is possible to file a lawsuit for the cancellation of the transfer of immovable properties acquired for these reasons.
What is the Scope of Real Estate Pledge (Mortgage)?
Which receivables fall within the scope of the Immovable Pledge is among the issues of interest. Article 875 et seq. of the Civil Code regulates this scope.
According to this;
- Follow-up costs and late payment interest,
- Three years’ interest due until the date the bankruptcy is filed or the foreclosure of the pledge is requested, plus interest from the last due date
In addition, if compulsory expenses have been incurred; according to Article 876 of the Turkish Civil Code, if the pledgee has incurred compulsory expenses for the protection of the pledged immovable, and especially if the pledgee has paid the insurance premiums owed by the owner, the receivables arising therefrom benefit from the security just like the pledged receivables, without the need for registration.
Can the value of pledged real estate be preserved?
If conditions such as a decrease in the value of the pledged (mortgaged) immovable property or damage to it have occurred or are occurring, the pledge creditor may request certain measures to be taken.
1- A request can be made to the court to prohibit this behavior,
2- The judge may authorize the creditor to take measures directly when necessary, or may take measures without authorization in cases where there is danger in delay
3- The creditor may claim the costs and expenses incurred in order to take precautions, and these costs may be entitled to a pledge right that takes precedence over other registered cargoes without the need for additional registration.
In addition, if the value of the pledged immovable has decreased or is in danger of decreasing, the creditor has the right to request other security for its receivables or to request the reinstatement of the pledged immovable.
What is Mortgage Rights Arising from the Law?
It is a mortgage right that is acquired directly upon the birth of the receivable, without the need for registration.
Mortgage Rights not subject to registration are as follows:
1- In terms of the expenses incurred by the creditor for the protection of the immovable value: It is the legal mortgage right arising in favor of the creditor in terms of the expenses incurred by the creditor for the protection of the immovable value according to the provisions of Article 865 et seq. of the Turkish Civil Code. It comes before all real estate pledges.
2- In terms of expenses incurred in cases where the value of the immovable property decreases without the fault of the owner
3- A direct mortgage right arises from the expenses incurred by the creditor for the protection of the immovable and the insurance premiums paid for the immovable for the account of the owner.
What is the Legal Mortgage Rights Subject to Registration?
Contractual mortgages that become valid upon registration may be referred to as mortgages subject to registration.
1- A mortgage can be placed on the real estate sold to secure the sale price
2- Mortgages can be placed for the receivables arising from the sharing of the immovable property in a joint venture
3- A construction mortgage can be established to secure the structures and materials built on an immovable.
4- A mortgage can be placed in favor of the maintenance creditor to guarantee the care of another person until death.
In what time periods can a mortgage registration are requested?
The seller of the immovable property, heirs, shareholders of joint and several ownership, and the beneficiary of care until death may request the registration of the mortgage right within 3 months from the transfer of ownership. The construction creditor may request the registration of the mortgage within 3 months from the date of completion of the work at the latest.
Does the statute of limitations apply to claims secured by mortgages?
Pursuant to Article 864 et seq. of the Turkish Civil Code, the statute of limitations does not run for the receivable after the registration of the pledge in the land registry.