According to the Turkish Civil Code, the right of ownership is a real right that allows a person to exercise the broadest authority over a property. Pursuant to Article 683 of the Code, the owner of the property has the powers to use, benefit from, and dispose of the property. Ownership is an absolute right that provides direct control over both movable and immovable property and must be respected by everyone.
In addition to ownership, rights that grant more limited powers over a property are called limited real rights. Among these limited real rights, the right that provides the most comprehensive powers is the usufruct right. Regulated between Articles 794 and 822 of the Turkish Civil Code, the usufruct right gives the right-holder the authority to fully use and benefit from a property belonging to someone else. As the real right with the broadest content after ownership, this right generally allows the right-holder to enjoy the property fully and without limitation.
In this article, we will discuss the subject of the usufruct right, its conditions, establishment, obligations of the right-holder and the owner, and the circumstances under which it terminates.
THE SUBJECT, FEATURES, AND ESTABLISHMENT OF THE USUFRUCT RIGHT
The usufruct right is the most comprehensive type of limited real right after ownership, granting the authority to fully use and benefit from property belonging to another person. According to Article 794 of the Turkish Civil Code, the usufruct right can be established over movable property, immovable property, rights, and an entire estate. In this respect, it differs from other servitudes, which can only be established on immovable property.
A) Features of the Usufruct Right:
The usufruct right is a personal right that is non-transferable, cannot be acquired from another person, and does not pass from one person to another. In this respect, it is considered an absolute personal right. However, an important distinction exists: while the usufruct right itself cannot be transferred, its use can be delegated to someone else.
If the contract does not contain a contrary provision or if the specific circumstances do not require the personal exercise of the usufruct right, it is possible to allow another person to use the right. In such a case, the owner can assert their rights directly against the transferee (Turkish Civil Code, Art. 806). For example, the usufructuary may allow another person to use an immovable property subject to usufruct through a lease agreement. However, it is important to note that only the authority to use the property can be transferred, not the right itself.
The usufructuary also holds possession of the property subject to the right. Therefore, similar to the owner, they can exercise certain legal actions associated with ownership. For instance, the usufructuary may file a claim to prevent unlawful occupation of the property or seek compensation for unauthorized use (ecrimisil) in case of infringement.
B) Establishment of the Usufruct Right:
The usufruct right can be established through three different legal methods:
1-Usufruct Right Established by Contract:
The most common method in practice is through contracts between the parties. The usufruct right is established over movable property by the transfer of possession, over receivables by the assignment of the claim or delivery of negotiable instruments, and over immovable property by preparing a notarial deed and registering it in the land registry (Turkish Civil Code, Art. 795/1). Unless otherwise stipulated, the provisions concerning ownership apply to the acquisition and registration of the usufruct right over both movable and immovable property (TCC, Art. 795/2).
2-Usufruct Right Arising from Law:
In certain special cases, the usufruct right may arise directly by law. For example, Articles 240 and 652 of the Turkish Civil Code allow the surviving spouse to have a usufruct right over the family residence and household goods. Such rights are recognized directly by law without any contract or unilateral legal act. According to Article 795/3 of the Turkish Civil Code, a statutory usufruct right established over immovable property can be asserted against those aware of it even if it is not registered in the land registry, and if registered, it can be asserted against everyone.
3-Usufruct Right Arising from a Unilateral Legal Act:
The usufruct right can also be established through a unilateral legal act, such as a will, and not only through bilateral legal transactions like a contract. For example, a testator may establish a usufruct right in favor of heirs or a third party through a testamentary disposition.
RIGHTS OF THE USUFRUCTUARY
Articles 803 to 806 of the Turkish Civil Code comprehensively outline the powers granted to the usufructuary. In accordance with these provisions, the usufructuary has the right to physically possess the property, manage it, use it, and benefit economically from it. Additionally, the usufructuary is entitled to enjoy natural products and periodic income generated by the property.
1. General Powers (TCC Art. 803):
The usufructuary has the authority to possess, manage, use, and benefit from the property subject to the usufruct right. These powers include physically holding the property, operating or making it available for use, using it for daily purposes, and deriving economic benefit from it. However, the exercise of these rights is neither absolute nor unlimited. While exercising these rights, the usufructuary must act “as a good administrator,” taking the necessary care to preserve the property, use it appropriately, and avoid reducing its value unnecessarily.
2. Enjoyment of Natural Products (TCC Art. 804):
Natural products that mature during the term of the usufruct belong directly to the usufructuary. It is sufficient that the products mature during the usufruct period; what matters is the date the products are obtained, not who planted or cultivated them. However, if the planting or cultivation was done by the owner and the products are harvested by the usufructuary, the owner may request a reasonable compensation for the expenses incurred, provided it does not exceed the value of the products. The same applies if the products planted by the usufructuary are harvested by the owner. Nevertheless, all supplementary parts that are not considered natural yields or products of the property in nature belong to the owner. Examples include structures built on immovable property or fixed machinery.
3. Interest and Periodic Income (TCC Art. 805):
If the usufruct is established over capital (such as a receivable or a deposit), interest and other periodic earnings generated from that capital belong to the usufructuary from the beginning of the usufruct until its termination. What matters here is not when the income is collected but the period during which it accrues.
4. Transfer of the Use of the Right (TCC Art. 806):
The usufruct right is strictly personal and non-transferable. However, the exercise of the right may be delegated. This means the usufructuary may allow another person to use the property subject to the usufruct, but cannot transfer the right itself. In such cases, the owner may assert their rights directly against the transferee.
RIGHTS OF THE OWNER
The establishment of a usufruct right does not eliminate the bare ownership rights of the owner over the property. In this context, the owner has certain rights in order to protect the property and safeguard their own interests. These rights are detailed in Articles 807 to 811 of the Turkish Civil Code.
1. Right of Supervision (TCC Art. 807):
If the owner notices that the usufructuary is using the property in a manner that is unlawful or inconsistent with the nature of the property, the owner has the right to object.
2. Right to Request Security (TCC Art. 808):
If the owner proves that their rights are at risk due to the exercise of the usufruct right, they may request the usufructuary to provide security. In some cases, however, it is not necessary to prove the risk. For instance, if the usufruct is established over a consumable item or negotiable instrument, the owner has the right to demand security even before delivery without proving the risk. Depositing the negotiable instrument in a secure place is considered a valid form of security.
3. In the Case of a Gift (TCC Art. 809):
In gifts made with the usufruct right retained, the donor cannot be required to provide security.
4. Consequences of Failing to Provide Security (TCC Art. 810):
If the usufructuary does not provide security within the appropriate period granted or continues to use the property unlawfully despite the owner’s objection, the peace judge may remove the usufructuary’s possession and assign the property to a trustee until a new decision is made.
5. Request for Bookkeeping (TCC Art. 811):
To prevent future disputes regarding the property subject to the usufruct right, the owner or the usufructuary may always request that a formal record be kept by a notary. This record documents the current state and characteristics of the property and serves as evidence, especially in matters such as the allocation of expenses.
OBLIGATIONS OF THE USUFRUCTUARY
While the usufructuary is granted the right to benefit from the property, the exercise of this right is also limited by certain obligations. Articles 812 to 822 of the Turkish Civil Code comprehensively regulate the principles regarding the usufructuary’s responsibilities, particularly in relation to the protection of the property, participation in maintenance and operational expenses, and assuming liability in certain specific circumstances.
1. Protection of the Property (TCC Art. 812):
The usufructuary is responsible for preserving the property and performing its ordinary maintenance and repairs. However, if the protection of the property requires more extensive interventions, the usufructuary must notify the owner and obtain permission to carry out the necessary actions. If the owner fails to perform the required work, the usufructuary may undertake it at the owner’s expense.
2. Maintenance and Operating Expenses (TCC Art. 813):
During the term of the usufruct, the usufructuary is obliged to cover the ordinary maintenance and operating expenses of the property, as well as payments such as taxes, fees, and interest on debts. All other obligations remain the responsibility of the owner. If the owner has already paid taxes or fees, the usufructuary must reimburse the owner.
3. Usufruct Over an Estate and Debt Interest (TCC Art. 814):
If the usufruct is established over an entire estate, the usufructuary is also responsible for paying interest on the debts related to that estate. However, if circumstances justify, the usufructuary may request exemption from this obligation. In such cases, the usufruct continues only over the remaining portion after the debts are settled.
4. Insurance (TCC Art. 815):
If deemed necessary according to local customs and the rule of good administration, the usufructuary must insure the property against fire and similar hazards. If the property is already insured, or the usufruct is established on an insured property, the usufructuary is responsible for paying the insurance premiums.
5. Limit on Harvested Products (TCC Art. 816):
The usufructuary must remain within the ordinary limits of use when benefiting from an immovable property. Any excess products obtained beyond these limits belong to the owner.
6. Economic Utilization (TCC Art. 817):
The usufructuary may not change the economic orientation of the property in a manner that causes significant harm to the owner. However, the usufructuary may exploit natural resource deposits such as stone, lime, marble, or peat, provided the owner is notified in advance and the economic orientation of the property is preserved.
7. Forests (TCC Art. 818):
If a usufruct is established over forests, the use must comply with special laws and the management plan. During the planning, both the owner and the usufructuary may request protection of their rights. In case of extraordinary events such as fire, flood, or pest infestation causing product loss, the forest is managed according to the new conditions.
8. Consumables and Valued Items (TCC Art. 819):
Ownership of consumable items passes to the usufructuary unless otherwise agreed; however, the usufructuary must pay their current value when returning them. If the usufruct applies to movable property delivered with an assessed value, the usufructuary may freely use the items, but must pay the assessed value upon return. In some cases, payment may be made by providing items of the same type and quality.
9. Usufruct Over Receivables (TCC Arts. 820, 821, 822):
The usufruct over receivables only grants the right to enjoy the proceeds. Any claims for payment from the debtor must be made jointly by both the creditor and the usufructuary. Likewise, the debtor must direct all notifications and payments to both parties.
The debtor may only make payment to the person authorized to receive it. Otherwise, the debtor must pay the debt jointly to the creditor and the usufructuary, or deposit it at a location determined by the judge. Within this framework, the capital subject to payment becomes subject to the usufruct right and may be deposited in a secure and interest-bearing place if desired.
The usufructuary may request the transfer of receivables and negotiable instruments subject to the usufruct within three months from the start of the usufruct. However, for this transfer to take place, the usufructuary must accept to pay the value at the time of transfer and provide security for the debt. If the right to request security has not been explicitly waived, the transfer is only valid after the security is provided.
TERMINATION OF THE USUFRUCT RIGHT
The circumstances that terminate the usufruct right are regulated under Articles 796 and 797 of the Turkish Civil Code. According to these provisions, the usufruct right ends in the following cases: the death of the usufructuary in the case of natural persons, the expiration of the agreed term for legal entities, or, if no term is agreed, the dissolution of the legal entity; the complete destruction of the property subject to the usufruct; expropriation; compulsory enforcement; deregistration of immovable property; and the removal of the reason for which the usufruct was established.
1-Termination of the Right by Time: The usufruct right automatically terminates upon the death of the usufructuary in the case of natural persons, or upon the expiration of the agreed term for legal entities. If no term is specified for legal entities, the right ends with the dissolution of the legal entity. It should be noted that, for legal entities, the usufruct right can last for a maximum of one hundred years, and because this right is a personal right closely tied to the individual, it cannot be inherited by successors.
2-Complete Destruction of the Immovable Property: If the immovable property subject to the usufruct is destroyed for any reason or becomes unusable, the usufruct right terminates. The owner is not obliged to restore a property that has become unusable; if the owner does restore it, the usufruct right is re-established (TCC Art. 798/1). If only part of the property is destroyed, the usufruct continues over the remaining portion. The usufructuary is responsible for the destruction or depreciation of the property unless they prove that the damage was not due to their fault.
3-Expropriation: If the immovable property subject to the usufruct is expropriated, the usufruct right ends. If the property owner receives compensation, the usufruct continues in relation to the expropriation amount. If the expropriation is canceled and the property is returned to the owner, the usufruct right is re-established over the property.
4-Sale by Compulsory Enforcement: If a mortgage exists on the property and was established before the usufruct, the sale of the property by compulsory enforcement terminates the usufruct right. However, if the mortgage was established after the usufruct, the usufruct remains valid even if the property is sold through enforcement.
5-Cancellation or Court Decision: The usufruct right automatically ends if the usufructuary applies to the Land Registry to request cancellation. Additionally, the property owner can terminate the usufruct by filing a lawsuit. If the usufructuary fails to cancel the right despite having a cancellation obligation toward the owner, the owner may initiate legal action to terminate the usufruct.
Upon termination of the usufruct, the usufructuary is obliged to return the property subject to the right to the owner.
Consequences of the Termination of the Usufruct Right
The termination of a usufruct right gives rise to certain legal consequences between the parties. The potential outcomes for both the usufructuary and the owner in the event of termination are regulated under Articles 800 to 802 of the Turkish Civil Code.
- Obligation to Return (TCC Art. 799): Upon the termination of the usufruct, the usufructuary is obliged to return the property subject to the right to the owner. This is a natural consequence of the termination.
- Liability (TCC Art. 800): The usufructuary is responsible for the preservation of the property. If the property is destroyed or its value decreases, the usufructuary is liable unless they prove that the loss was not due to their fault. Additionally, the usufructuary must compensate for any items consumed that were not necessary for the proper use of the property. However, the usufructuary is not responsible for value loss resulting from ordinary use, such as wear and tear or aging.
- Expenses and Improvements: If the usufructuary has made improvements, repairs, or additions to the property without being obliged to do so, they may claim compensation from the owner when the usufruct ends. This claim is evaluated according to the rules of unauthorized acts on behalf of another. If the owner does not pay this compensation, the usufructuary may remove the additions they made, but in that case, they must restore the property to its original condition.
All claims that may be asserted by the owner or the usufructuary at the time of return are subject to a one-year statute of limitations from that moment.
Supreme Court Decisions
“…According to the definition in Article 794 of the Turkish Civil Code, the usufruct right is a type of servitude that can be established over movables, immovables, rights, or an entire estate and grants the holder the right to benefit from the subject of the right. On immovable property, the usufruct right is established by drafting an official deed and registering it in the land registry, while on movable property, it is established by transferring possession of the movable item to the usufructuary. For receivables, the usufruct right can be established through the assignment of the right or the delivery of negotiable instruments (TCC Art. 795).
If the usufruct is established for a limited period, it terminates upon the expiration of that period, or earlier if the usufructuary renounces the right, in case of the usufructuary’s death, or, in the case of a legal entity, upon its dissolution, or if the subject of the right is entirely destroyed and no longer usable (TCC Art. 796). Except for statutory usufruct rights (TCC Art. 495 et seq.), the establishment of a usufruct always relies on a contract. This contract, which imposes rights and obligations on the parties, can determine how the usufructuary and the owner will benefit from the subject of the right.
If the obligations underlying the contract establishing the usufruct are not fulfilled, and the continuation of the usufruct provides very little benefit relative to the burden imposed on the owner, the owner may request the court to intervene in the contract and terminate the usufruct due to the imbalance of benefits. In such cases, if the usufructuary seeks to continue the usufruct, it constitutes an abuse of right. Although the provisions of the Turkish Civil Code (Arts. 796 et seq.) enumerating the reasons for the termination of usufruct do not explicitly grant the owner the right to request the termination of a personal servitude such as usufruct, the analogous application of Article 785 of the Turkish Civil Code is warranted here…” (Supreme Court, 14th Civil Chamber, 2016/7046 E., 2019/1554 K., 21.02.2019)
“…In line with the above explanations, regarding the specific case; the usufruct right belonging to the Ministry of National Education was established on October 22, 1987, no duration was specified at the time of its establishment, and less than one hundred years have passed since that date. Considering that the defendant Ministry had no actual use of the immovable properties in question, this does not imply that the reason for the usufruct has ceased. Therefore, instead of dismissing the case, it was incorrectly accepted based on the written justification, and for this reason, the decision was annulled…” (Supreme Court, 14th Civil Chamber, 2016/8089 E., 2019/2153 K., 11.03.2019)
“…With this provision, our Civil Code grants the surviving spouse certain rights over the marital home and household goods they have used together, outside the marital property regime. Regardless of the marital property regime, the surviving spouse has the right, to be offset against their statutory inheritance share, to claim ownership over the family residence and household items in the estate. If there are justifiable reasons, the surviving spouse may request a usufruct or right of residence instead of ownership. However, this allocation and acquisition right is not free of charge. If the spouse’s inheritance share does not cover the value of the family home, they may pay the difference to acquire ownership; if they cannot afford the remaining value, they may claim a usufruct or right of residence over the family home.
Under this article, when the surviving spouse requests the allocation of the family home as part of their inheritance share, the claim for ownership must be evaluated first. In granting a usufruct right, the existence of justifiable reasons for the allocation must be examined…” (Supreme Court, 14th Civil Chamber, 2016/12768 E., 2020/1386 K., 06.02.2020)
“…According to the definition in Article 794 of the Turkish Civil Code, a usufruct right is a type of servitude that can be established over movables, immovables, rights, or an entire estate and grants the right-holder the ability to benefit from the subject of the right. The usufruct right over immovable property is established by drawing up an official deed and registering it in the land registry. If the usufruct right is established for a limited period, it ends upon the expiration of that period, the voluntary renunciation of the right by the usufructuary before the period ends, the death of the usufructuary (if a natural person), the dissolution of the legal entity (if a legal person), or the total destruction of the subject matter making it impossible to benefit from it. (TCC Article 796) A usufruct right cannot be acquired through transfer, as the transfer of this right is not permitted…” (Supreme Court, 14th Civil Chamber, 2016/5340 E., 2019/604 K., 21.01.2019)
Lawyer. Gökhan AKGÜL & Lawyer. Yasemin ERAK
ANTALYA REAL ESTATE LAWYER – ANTALYA TITLE DEED LAWYER
The usufruct right is an important legal concept that grants a limited right of use over immovable property. In disputes related to this right, experienced lawyers provide the most effective solutions while protecting their clients’ rights. For professional legal support regarding usufruct-related title deed procedures, litigation processes, or the protection of rights, you can contact our law firm in Antalya and consult with our expert attorneys for all your legal matters.
