ATTORNEY IN TURKISH LAW – REAL ESTATE ATTORNEY

A title deed attorney is a lawyer with extensive knowledge and experience in the field of real estate law. Attorneys handling real estate law cases provide legal support in areas such as title deed transactions, drafting lease agreements for properties, preparing sale-purchase contracts, construction contracts, real rights and personal rights establishment contracts, monitoring the compliance of urban development projects with environmental regulations, reviewing real estate financing, property acquisition by foreigners, as well as reviewing and drafting mortgage contracts.

Although title deed cases fall under the scope of real estate law, real estate law is a branch of property law. Real estate law deals with immovable property, such as land, plots, houses, and shops, which are assets affecting almost every segment of society, and the ownership rights associated with them. This branch of law sets out the regulations individuals or companies must follow to protect, transfer, or utilize their property.

Real estate law encompasses a wide range of complex legal cases. Disputes in title deed and real estate cases are often related to many other branches of law. Therefore, managing the process with an experienced lawyer specialized in real estate law is crucial to avoid legal errors and prevent loss of rights in these disputes.

Some of the legal relationships in real estate law that are frequently encountered and have been resolved through long-term experience in our office are as follows:

  1. Title cancellation and registration lawsuits,
  2. Title deed correction lawsuits,
  3. Ecrimisil (Unlawful occupation) compensation lawsuits,
  4. Lawsuits for the prevention of interference (prevention of unlawful occupation),
  5. Lawsuits for the dissolution of joint ownership (Izale-i Şüyuu),
  6. Lawsuits for determining the affiliation of immovable property,
  7. Other lawsuits for determination,
  8. Lawsuits based on the right of preemption (Shufa),
  9. Eviction lawsuits for leased properties,
  10. Lawsuits for the determination and adjustment of rent,
  11. Establishment of condominium ownership and securing condominium rights,
  12. Real estate sale, usufruct, etc., contracts,
  13. Construction contract in exchange for flats,
  14. Lease agreements, real estate sale promise agreements,
  15. Establishment and removal of mortgage on real estate,
  16. Unlawful occupation without expropriation and its prevention.

Title Cancellation and Registration Lawsuits in Turkish Law

Title Cancellation and Registration Lawsuits are the type of lawsuits in which the property ownership of a registered immovable is claimed to be contrary to law and fact, and the legal owner of the property requests that the registration be made in their name.

The title cancellation and registration lawsuit can arise from several reasons, such as inheritance fraud (asset concealment), title cancellation lawsuits between siblings, the preparation of erroneous inheritance certificates, fraudulent transactions, incorrect land surveying, real estate sales promises, or construction contracts in exchange for land shares. Article 1025 of the Turkish Civil Code No. 4721 states, “If a real right has been registered incorrectly or a registration has been unlawfully cancelled or altered, the person whose right has been harmed may file a lawsuit for the correction of the land registry. The real rights acquired by good-faith third parties based on this registration and any claims for compensation are reserved…”

Generally, the competent court for title cancellation and registration lawsuits is the Civil Court of First Instance. The court with jurisdiction over these lawsuits is the one located where the immovable property is located. It should also be noted that the competent court may change depending on the reasons for the title cancellation and registration lawsuit. Therefore, a separate assessment must be made for each specific case to determine the competent court.

Title cancellation and registration lawsuits are usually long-lasting. On average, they can take at least 2-3 years. To minimize these durations and ensure that the rightful owner (the property owner) does not experience any loss of rights, it is very important to act with a legal representative. Especially in such cases, it is crucial to receive legal support from a lawyer specialized in this field and with extensive knowledge.

Title Correction Lawsuit in Turkish Law

The lawsuit for the correction of the title deed is a type of case filed to correct or update the information of the person holding a real right in the title deed. It is possible for errors to occur in the land registry when the title deed document is issued by the title deed registry office, which is an official institution, or when a transaction is made later in the registry. These errors generally appear as mistakes, omissions, or outdated information in the title deed record. For example, errors such as name, surname, mother’s name, father’s name, etc. Property owners or relevant parties will file a lawsuit for the correction of the title deed to correct these records.

According to Article 1027 of the Turkish Civil Code: “Unless the written consent of the parties concerned is obtained, the land registry officer can only correct the error in the land registry with a court decision. The correction may also be made by abandoning the previous registration and making a new registration. The land registry officer will correct simple typographical errors ex officio in accordance with the regulation issued by the President…”

The lawsuit for the correction of the title deed is a non-contentious type of litigation. Therefore, such cases are filed in the civil court of peace by designating the land registry office as the opposing party by the property owner or concerned parties.

The Lawsuit for Ecrimisil (Unlawful Occupation) Compensation in Turkish Law

The Ecrimisil lawsuit is a lawsuit for unlawful occupation compensation. The Ecrimisil lawsuit is filed against the unlawful occupation of a movable or immovable property or real estate by a possessor (occupier) who is not the rightful owner and without the owner’s consent and approval. For an Ecrimisil claim to be made, the person occupying the property must have engaged in unlawful occupation, and the rightful owner of the real estate must have suffered damage as a result.

The legal basis for the Ecrimisil lawsuit is established by Articles 993-995 of the Turkish Civil Code (TMK). However, the Ecrimisil lawsuit is more of a concept developed in practice, and related matters are shaped by the rulings of the Court of Cassation. According to the regulations in Article 2 of the Civil Procedure Code (HMK), the competent court for Ecrimisil lawsuits is the Civil Court of First Instance. Also, as per Article 6 of the HMK, the competent court is determined according to the general jurisdiction rules.

In practice, according to the Court of Cassation, the competent court may be the court located in the place where the tort occurred, where the damage occurred or is likely to occur, or the court of the residence of the injured party.

Lawsuits for Prevention of Interference in Turkish Law

The lawsuit for prevention of interference, also known as the lawsuit for preventing wrongful possession, is filed against individuals who have committed unlawful interference or use of movable or immovable property. These lawsuits aim to prevent such wrongful actions. The prevention of interference, or the prevention of wrongful possession lawsuit, is regulated in Article 683 of the Turkish Civil Code as follows.

“Anyone who possesses something has the right, within the boundaries of the legal order, to use, benefit from, and dispose of that thing as they wish. The owner, in addition to filing a claim of ownership against someone who unlawfully possesses their property, may also file a lawsuit to prevent any unlawful interference with their property.”

An ownership claim (istihkak) lawsuit is filed to determine who owns the property, while a lawsuit for the prevention of interference (el atmanın önlenmesi) is aimed at preventing unlawful interference and compensating for any damages caused by such interference. There are three essential conditions for filing a lawsuit for the prevention of interference. These are:

  • The interference (or encroachment) must be unlawful.
  • The unlawful interference must be ongoing.
  • The person filing the lawsuit must be the owner of a real or personal right, such as property or a lease.

In the case of preventing encroachment, the competent court is the Civil Court of First Instance. The court with jurisdiction is the court located in the area where the real property is situated, while for movable property, it is the court in the defendant’s place of residence. According to the Court of Cassation, 1st Civil Chamber, case number 2013/19685 E. and 2014/6897 K.

“The plaintiff has filed the current case, claiming that the defendant unlawfully occupies the real property owned by the plaintiff, and it is clear that the case is related to the property itself and the plaintiff’s assets. It is undisputed that the case will be heard in the Civil Court of First Instance.”

Action for the Dissolution of Co-Ownership (Izale-i Şuyu) in Turkish Law

The action for the dissolution of co-ownership, also known as Izale-i Şuyu, is a type of lawsuit that ends the joint ownership or shared ownership between co-owners of a movable or immovable property and ensures the transition to individual ownership. The action for the dissolution of co-ownership (Izale-i Şuyu) is applied in two methods.

  1. Partition by division (Aynen Taksim) for the dissolution of co-ownership: This refers to the division of the subject movable or immovable property into shares. For example, it could involve dividing a piece of land jointly owned by A and B into two equal parts.
  2. Dissolution of co-ownership through sale: In this case, the movable or immovable property subject to the lawsuit is sold, and the proceeds from the sale are distributed among the parties. For example, two siblings who jointly own an apartment may sell the property and divide the proceeds in proportion to their shares.

The dissolution of co-ownership is based on legislation and legal practices. According to the provision in Article 698 of the Turkish Civil Code;

“Unless there is an obligation to continue the co-ownership due to a legal transaction or because the jointly owned property is designated for a specific purpose, each co-owner has the right to request the partition of the property.

The right to request partition can be limited by a legal transaction for a maximum period of ten years. Contracts regarding the continuation of co-ownership in immovable properties are subject to formal requirements and can be registered in the land registry. A request for partition cannot be made at an inappropriate time.”

In a lawsuit for the partition of co-ownership (izale-i şüyu), the competent court is the court located where the immovable property is situated. The responsible court is the civil court of peace.

Foreigners’ Acquisition of Property under Turkish Law

In recent times, it has become increasingly common for foreigners to wish to acquire real estate in Turkey. Especially during the summer months, foreign tourists who frequently visit Turkey are interested in purchasing vacation homes or properties for investment purposes. Foreign nationals, provided they comply with legal restrictions, are allowed to acquire any type of immovable property in our country.

According to the law currently in force in Turkey, the form of the contract for foreigners acquiring real estate is the same as that for Turkish citizens. In other words, the transfer of property ownership is carried out through an official deed signed at the land registry offices and the registration process. Foreign nationals’ ability to acquire property in Turkey is regulated in Article 35 of the Land Registry Law. According to this provision:

Article 35 – (Revised: 29/12/2005-5444/1; Amended: 3/5/2012 6302/1)

“Subject to legal restrictions, foreign nationals from countries specified by the President in accordance with international bilateral relations and in cases where the country’s interests require it, may acquire immovable property and limited real rights in Turkey. The total area of immovable properties and independent and permanent limited real rights acquired by foreign nationals shall not exceed ten percent of the total land area of the district subject to private ownership and thirty hectares per person nationwide. The President is authorized to increase the amount that can be acquired per person nationwide by up to double.”

The President, in cases where the country’s interests require it, may determine, limit, partially or completely suspend, or prohibit the acquisition of immovable property and limited real rights by foreign nationals and foreign commercial companies with legal personality established in foreign countries according to their own national laws, in terms of country, person, geographic area, duration, number, ratio, type, characteristics, area, and amount.”

Obtaining Residence Permit through Real Estate in Turkey

It is crucial to seek the assistance of a lawyer specializing in this field to ensure that the conditions required for foreign individuals to acquire Turkish citizenship through real estate transactions are fully met and to avoid any potential issues regarding the fulfillment of these requirements during the process. The procedures and principles for acquiring citizenship through real estate, as an exception, are clearly outlined in the regulation on the implementation of the Turkish Citizenship Law. According to the relevant regulation:

According to Article 20, Paragraph 2(b) of the Regulation on the Implementation of the Turkish Citizenship Law, foreign individuals who have purchased or made a commitment to purchase real estate with a value of at least 400,000 USD or its equivalent in foreign currency, such as a property with a condominium or floor rights, or land with buildings on it, and whose property is registered with a restriction in the title deed prohibiting its sale for three years (as per the amendment published in the Official Gazette dated 12.12.2023), may acquire Turkish citizenship by the decision of the President. This also applies to individuals who have made a down payment of at least 400,000 USD or its equivalent in foreign currency, with a commitment notarized to ensure no transfer or abandonment of the property for three years. The sale is subject to verification by the Ministry of Environment, Urbanization, and Climate Change.

The regulation has been amended with changes that came into effect on the following dates: 12.01.2017, 19.09.2018, 07.12.2018, 06.01.2022, 13.06.2022, and 12.12.2023.

Accordingly, with regard to the effective dates of the regulation amendments:

  1. Real estate purchased between 12.01.2017 and 18.09.2018 must be worth 1,000,000 US dollars,
  2. Real estate purchased or to be purchased after 19.09.2018 must be worth 400,000 US dollars,
  3. Real estate for which a promise of sale agreement was made or will be made after 07.12.2018 must be worth 400,000 US dollars,
  4. With the change made on 06.01.2022, the phrase “equivalent in Turkish Lira” was removed from the regulation, and the real estate price must be converted to foreign currency and sold to a bank for exchange to be submitted to the Central Bank.

It is required.

Real estate purchased before 12.01.2017, the date when the first regulation regarding the acquisition of Turkish citizenship through real estate came into effect, and real estate subject to a sales promise agreement before 07.12.2018 will not be taken into consideration for acquiring Turkish citizenship.

Antalya Title Deed Lawyer – Real Estate Lawyer

Real estate law, particularly issues related to title deed cases, involves complex disputes that require meticulous and careful work. Matters such as property purchases, sales, or distribution among rightful owners, which concern almost everyone in our country, are situations where careful steps must be taken at every stage, both in terms of process and outcome. Therefore, working with an attorney who has extensive experience in real estate law, follows the laws, has comprehensive knowledge, and specializes in this field will not only facilitate the process but also prevent the loss of rights or potential legal errors.

At our office in Antalya, we are always at the service of both Turkish citizens and foreign nationals with our team of specialized and competent attorneys in the field of real estate law. If you would like legal advice or legal representation, you can easily reach us via the contact section and schedule an appointment.

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