Real Estate Law

Under Article 237 of the Turkish Code of Obligations No. 6098, a real estate sale contract is valid only if it is executed in official form. The same article provides that promise-to-sell agreements, as well as repurchase and purchase option agreements, are likewise subject to the official form requirement.

For this reason, a private written contract or a cash payment alone does not transfer ownership. Even if the agreement between the parties is invalid, the return of what was given can still be claimed.

A promise-to-sell agreement is executed before a notary and may be annotated on the land register. The annotation protects the beneficiary of the promise against later transfers for a certain period.

A copy of the land registry record, an encumbrance document, the zoning status, the occupancy permit and, if any, a building registration certificate are the basic documents that should be examined. A missing document creates problems that are difficult to resolve later.

Examining the basis of the seller's ownership and the date of acquisition provides preparation against claims of a chain of improper transfers. In transactions carried out under a power of attorney, the scope of that power of attorney is also checked.

Property tax debt, common charge debt and utility subscription debts are also checked before the transfer. The contract should specify who will remain responsible for these debts.

In a land registry transfer, the fee is calculated on the declared sale price and, as a rule, is paid separately by the buyer and the seller. The parties may agree on a different allocation between themselves.

Declaring a price below the actual value creates a risk of a subsequent tax audit and a penalized tax assessment. It also creates difficulty of proof in the event of a dispute.

In addition to the fee, a revolving fund charge and costs relating to establishing and deleting a mortgage also arise. It is useful to calculate the total cost before the transaction.

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Under Article 716 of the Turkish Civil Code No. 4721, a person who holds a personal right, based on a legal cause giving rise to acquisition of ownership, to demand that the owner register the property in his name may, if the owner refuses, request the judge to order the transfer of ownership by court decision.

The same article states that a person who acquires ownership of immovable property through occupation, inheritance, expropriation, compulsory execution or a court decision may have the registration carried out directly.

When this action is filed, an injunction is requested over the immovable property. Otherwise, a transfer made while the case is pending raises the question of a third party acting in good faith.

Under a shared title, the owner is the owner of a share of the whole of the property, not of a specific part of it. Actual use is based on an agreement among the co-owners and does not appear in the land register.

If one of the co-owners files an action for partition of co-owned property, the court may order the sale of the property. This may result in the loss of the part actually being used.

In addition, the pre-emption right of the other co-owners becomes relevant on the sale of a share. For this reason, the number of co-owners, actual use and any division agreement should be examined before purchase.

Under Article 1025 of the Turkish Civil Code, if a right in rem has been improperly registered, or a registration has been improperly deleted or altered, a person whose right in rem is thereby impaired may sue for correction of the land register.

The same article provides that rights in rem acquired by third parties acting in good faith on the basis of that registration, as well as any claim for damages, remain reserved. For this reason, once the immovable property has changed hands, the examination of good faith becomes decisive in the action.

Simulation, lack of legal capacity, abuse of a power of attorney and transfers made with forged documents are common grounds for this action. The means of proof differs for each ground.

The principle of reliance on the land register protects a person who acquires a right in rem by relying in good faith on the record. This protection may apply even where the record does not reflect the true situation.

By contrast, a person who knows that the record does not reflect the true situation, or who fails to make the inquiry the circumstances require, is not considered to be acting in good faith. A sale price far below the actual value, a family relationship between the parties, and a chain of transfers made within a short period are all assessed in this light.

For this reason, the land registry record, annotations, statement entries and any court files should be examined before a purchase. Such an examination provides the strongest defence against a later cancellation action.

Under Article 1007 of the Turkish Civil Code, the State is liable for all damage arising from the keeping of the land register. The State has a right of recourse against the officials at fault for causing the damage.

The same article provides that actions concerning the liability of the State are heard by the court of the place where the land register is kept. This ties jurisdiction to the location of the immovable property.

This liability frequently arises in transfers carried out with a forged power of attorney or a forged identity document. Since the claim is directed at compensating the damage, the amount of the damage must also be separately established.

An annotation allows personal rights to be asserted against third parties. A promise to sell, a lease and a pre-emption right are among the rights that can be annotated.

Statement entries, on the other hand, provide information about the legal status of the property. Information such as a building registration certificate, a condominium easement and the management plan can be seen in this section.

Easements grant another person the authority to use the immovable property. A right of way, usufruct and a building right on another's land fall within this group and affect the value of the property.

A mortgage is established as security for a claim and is deleted from the register once the debt is paid. Deletion requires either the creditor's written request or a court decision.

If the debt has been paid but the creditor does not request deletion, an action for removal of the mortgage may be filed. Proof of payment through bank records is decisive in this proceeding.

In a maximum-amount mortgage, the scope of the security is limited to the maximum amount stated in the contract. A dispute over that scope can be avoided by examining the record before purchase.

Under Article 698 of the Turkish Civil Code, unless there is an obligation to maintain co-ownership arising from a legal transaction or because the property held in shares is dedicated to a permanent purpose, each co-owner may request the partition of the property.

The same article provides that the right to request partition may be restricted by a legal transaction for a period of at most ten years, that agreements on the continuation of co-ownership in shares over immovable property are subject to the official form requirement, and that they may be annotated on the land register.

Partition is carried out primarily by physical division in kind. If physical division is not possible, partition through sale becomes relevant, and the sale is carried out through the enforcement office.

Where one co-owner in co-ownership held in shares sells his share to a third party, the other co-owners may exercise their pre-emption right. The right is exercised through legal action, requesting that the share be registered in their name.

For the right to be exercised, the sale must be notified to the co-owner. When the notification is made through a notary, the time limits start running from the date of notification.

The pre-emption right does not arise where the sale takes place over property that is not subject to co-ownership in shares, or where it is made between co-owners themselves. Sales disguised as gifts are examined from this perspective.

Compensation for unlawful occupation covers the loss suffered by the owner as a result of unlawful occupation. The claim is directed against the person who uses the immovable property without a legal basis.

Under Article 995 of the Turkish Civil Code, a possessor who is not acting in good faith must pay compensation for the damage caused to the rightholder by unlawfully withholding the property he is obliged to return, as well as for the proceeds he obtained or negligently failed to obtain.

Before making the claim, sending a formal notice to place the occupier in bad faith is important in practice. The date of the notice affects the period for which compensation can be claimed and its amount.

Upon the death of the deceased, joint ownership without shares arises among the heirs over the immovable property. As a rule, disposal under this form of ownership requires all heirs to act together.

One of the heirs may request that the joint ownership without shares be converted into co-ownership in shares. After the conversion, each co-owner gains the ability to dispose of his own share.

If agreement on the division cannot be reached, an action for partition of the estate is filed. In this proceeding, either physical division of the property or its sale and division of the proceeds is considered.

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A construction contract in return for a share of the units is a mixed-nature contract in which the transfer of a land share and the obligation to construct the building are undertaken reciprocally. Because it involves the transfer of immovable property, the official form requirement applies.

The delivery period, the sanction to apply in case of delay, the quality of construction and which independent unit will belong to whom must be clearly specified in the contract. Ambiguity turns into a dispute at the performance stage.

If the contractor fails to complete the work on time, the landowner acquires alternative rights of choice. Retroactive termination of the contract and the return of transfers already made at the land registry are then at issue.

If the delivered independent unit does not conform to the contract or is defective, the buyer may request that the defect be remedied, that the price be reduced, or, if the conditions are met, that the contract be rescinded.

If the defect is hidden, notice must be given as soon as it is discovered. Giving the notice in writing and stating the date prevents disputes over the time limit.

Longer time limits apply to serious defects in the load-bearing structure of the building. For this reason, determining the nature of the defect through a technical examination is important.

The use of common areas is determined by the management plan and by the decisions of the general assembly of unit owners. The management plan has the character of a contract that binds the owners and any subsequent owners.

A unit owner who objects to an assembly decision may file an action for its annulment. Restoration of unauthorized alterations made to a common area may also be requested.

The manager may initiate enforcement proceedings, including default compensation, against a unit owner who fails to pay the common charges. A tenant's liability arises only up to the amount of the rent.

The zoning plan determines the purpose and the density for which the immovable property may be used. A change to the plan directly affects the possible use of the property and, consequently, its value.

Obtaining a zoning status document from the municipality before purchase shows whether the property falls within a road, park or public facility area. Cases where the cadastral boundaries do not coincide with the zoning boundaries are examined separately.

An action for annulment of the plan is filed before the administrative courts and is subject to a time limit. Missing the time limit narrows the possibility of challenging subsequent implementing measures.

Following the expropriation decision, the administration applies to the court for determination of the compensation and registration. In this proceeding, the owner may argue that the compensation does not reflect the true value of the property.

The compensation is determined through an examination by a court-appointed expert. For property classified as building land, a comparable-sales approach is used; for property classified as agricultural land, the income method is used.

In urgent expropriation, taking possession occurs before the compensation becomes final. In that case, the owner's request for an increase in compensation is assessed separately.

The owner of an immovable property that has no connection to a public road may request that a right of way be established over a neighboring property. The claim is based on the fact that normal use of the property is not possible.

The route of the right of way is determined in a way that causes the least damage to the neighboring property. The court establishes the route through a site inspection and an examination by a court-appointed expert.

When the right of way is established, compensation is paid to the owner of the servient property. The right is registered on the land register, becoming enforceable against subsequent owners as well.

If the new owner has a genuine need for housing, he may notify the tenant within the period prescribed by law from the date of acquisition and request eviction. The notification must be made within the time limit and in the proper form.

The need must be genuine, sincere and compelling. If the property is leased to a third party within a short period after the eviction, a sanction becomes applicable.

If the lease agreement has been annotated on the land register, the new owner is bound to comply with it. For this reason, the annotations in the record should be examined before purchase.

The acquisition of immovable property by foreign natural persons is subject to reciprocity requirements, area limits, and restrictions relating to military and security zones. Before applying, it is checked whether the property falls within such zones.

Acquisition by companies with foreign capital is subject to a separate permit process. When the company's ownership structure changes, the situation must be reassessed.

In a citizenship application made through the acquisition of immovable property, conditions such as a minimum value and an undertaking not to sell come into play. These conditions are entered on the land registry record.

In actions concerning rights in rem over immovable property, the court of the place where the property is located has exclusive jurisdiction. Actions for cancellation of the registry record, registration, partition of co-owned property and right of way fall within this scope.

Disputes arising from condominium ownership are heard by the civil court of peace. Claims such as cancellation of the registry record and registration, however, fall within the jurisdiction of the civil court of general jurisdiction.

Actions for annulment against zoning plans and expropriation measures are brought before the administrative courts. Actions for increase of compensation, however, are heard by the civil court of general jurisdiction.

Since jurisdiction in actions concerning rights in rem over immovable property is tied to the location of the property, the İzmir Courthouse has jurisdiction for property in İzmir's central districts.

For property in districts such as Çeşme, Urla, Seferihisar, Menderes, Torbalı, Kemalpaşa, Menemen, Aliağa, Bergama, Ödemiş, Tire and Selçuk, the relevant district courthouse has jurisdiction.

In files where a site inspection is required, the proximity of the competent courthouse to the property affects the process. For this reason, the property's cadastral details should be clarified before filing the action.

Applying to a mediator before filing suit is established as a procedural prerequisite to filing suit in disputes over the eviction of leased property, partition of co-owned property, and disputes arising from condominium ownership.

Actions for cancellation of the registry record and registration, which concern rights in rem over immovable property, do not fall within this scope. For claims seeking a determination of ownership, an action may be filed directly.

If agreement is reached in mediation, the resulting document acquires enforceable status. If the agreement involves the transfer of the immovable property, the transaction must still be carried out at the land registry.