REAL ESTATE PURCHASE AND SALE TRANSACTIONS, TITLE DEED REGISTRATION, AND LITIGATION UNDER REAL ESTATE LAW IN TURKEY

Real estate purchase and sale transactions in Turkey take place within a multi-layered legal framework encompassing rights in rem, the title deed registry, zoning legislation, and condominium regulations. Although the high volume of real estate transactions in Turkey may create the impression that these transfers are routine, each property transfer is a unique process that carries distinct legal consequences and requires careful examination.

Therefore, purchasing a property in Turkey is not merely limited to paying the purchase price and executing the transfer at the title deed office; it necessitates a comprehensive evaluation of both its legal and factual status. Within this scope, in disputes concerning real estate law in Turkey, not only the existence of the title deed registration must be considered, but also the property’s legal nature in the register, its ownership structure, and its overall legal status under the relevant legislation must be addressed as a whole.

To prevent irreversible loss of rights and financial damages throughout this complex process, it is of vital importance to conduct a professional legal risk analysis by working with an expert real estate lawyer in Turkey.

WHAT IS REAL ESTATE LAW IN TURKEY?

Real estate law in Turkey is the branch of law that governs the creation, acquisition, transfer and termination of ownership and limited real rights over immovable property, together with the settlement of the disputes arising from those rights. In practice the terms “immovable property law” and “property law” are also used. At the heart of property law in Turkey lie ownership of immovable property, the land registry and the real rights held over real estate.

WHICH LAWS GOVERN REAL ESTATE LAW IN TURKEY?

Real estate law in Turkey is not an independent branch of law governed by a single statute. In private law it is essentially connected with the law of property, but depending on the nature of the legal relationship concerning the immovable property, rules from other branches of law may also have to be applied.

The foundation of property law in Turkey is the Turkish Civil Code No. 4721. Its provisions on the law of property govern the basic rules on ownership of immovable property, limited real rights and the land registry. Alongside it, the Turkish Code of Obligations No. 6098 is one of the core statutes for contractual relationships concerning real estate. Depending on the nature of the dispute, special rules such as those on zoning, condominium ownership, urban transformation and expropriation may also apply.

The main statutes that stand out in the application of real estate law in Turkey, and the core subjects they govern, are as follows:

• Turkish Civil Code No. 4721: Governs the basic provisions on ownership of immovable property, limited real rights and the land registry.
• Turkish Code of Obligations No. 6098: Contains provisions on obligations connected with real estate, such as the sale of immovable property, the promise to sell, tenancy relationships and construction contracts.
• Land Registry Law No. 2644: Regulates land registry procedures and certain entries and transactions in the land registry records; it also matters for the acquisition of real property by foreigners.
• Condominium Law No. 634: Contains the rules on condominium ownership, condominium easement and multi-building complexes.
• Zoning Law No. 3194: Covers the basic rules of zoning law, such as construction, building permits and occupancy permits.
• Cadastre Law No. 3402: Contains the rules on cadastral work, cadastral determination and the entry of immovable property into the land registry.
• Expropriation Law No. 2942: Governs the procedure and principles of expropriation.
• Law No. 6306 on the Transformation of Areas Under Disaster Risk: Sets out the legal framework for the transformation of areas under disaster risk and of risky buildings.
• Soil Conservation and Land Use Law No. 5403: Governs the protection and use of agricultural land and certain restrictions on dividing and transferring it.

WHICH SUBJECTS FALL WITHIN THE SCOPE OF PROPERTY LAW IN TURKEY?

The scope of property law in Turkey covers the whole legal life cycle of an immovable property, from its acquisition to its transfer, from land registry transactions to the real rights over it, and from shared ownership relationships to its use and management. This scope may require different statutes and rules to be applied together, depending on the nature of the immovable property and the specific legal relationship.

The main subjects and fields of application of property law in Turkey are as follows:

• Acquisition and Transfer of Ownership: Transfer of ownership of immovable property by sale, gift and exchange, its passing by inheritance, and its acquisition by prescription where the conditions laid down by law are met.
• Land Registry Transactions: Registration of real and personal rights over the immovable property and deletion of rights that have come to an end; corrections to the title deed record and the entry of annotations and declarations in the land registry records.
• Limited Real Rights: Legal transactions concerning the creation, exercise and termination of limited real rights under Turkish law such as usufruct, the right of habitation, right of way, right of superficies, water source rights and mortgage.
• Shared Ownership Relationships: Rights and obligations arising from co-ownership in shares and joint ownership, together with the partition action used to bring shared ownership to an end.
• Condominium Ownership and Complex Management: Condominium easement and condominium ownership, use of common areas, the rights and obligations of condominium owners, dues and common expenses, and the legal relationships arising from the management plan in Turkey.
• Zoning and Construction: Zoning plans, building permits, occupancy permits and the legal processes concerning the construction status of the immovable property, together with transactions arising from the rules known as the zoning amnesty under the relevant legislation.
• Expropriation and Urban Transformation: Processes for determining the price of the immovable property in expropriation, and legal transactions arising from risky building determinations, settlements and urban transformation schemes.
• Tenancy Relationships: Legal relationships arising from residential and roofed workplace leases, and disputes such as eviction of the tenant in Turkey and determination of the rent.
• Acquisition of Real Estate by Foreigners: The legal restrictions and acquisition procedures for foreign individuals and legal entities buying property in Turkey, and applications for Turkish citizenship connected with the acquisition of real estate.
• Tax Law: Obligations arising in respect of the title deed fee connected with acquiring and transferring immovable property, property tax as part of taxing the real estate, capital gains that may arise on certain transfers, and value added tax depending on the nature of the transaction.

Real estate law in Turkey is therefore not limited to buying and selling immovable property. A large number of legal transactions and disputes may fall within this field, from the acquisition of the immovable property through the creation of ownership and use relationships, land registry transactions, and the management and transfer of the property.

HOW IS OWNERSHIP OF REAL ESTATE ACQUIRED IN TURKEY?

As a rule, ownership of immovable property is acquired by registration in the land registry; in certain cases, however, the law also allows ownership to be acquired before registration. For that reason a distinction must be drawn, under Turkish law, between acquisition by registration, acquisition without registration and adverse possession.

• Acquiring Ownership of Real Estate by Registration in Turkey

Under the Turkish Civil Code, the main rule for acquiring ownership of real estate (immovable property) is the registration principle. Transactions intended to transfer ownership of immovable property are subject to the formal requirements laid down by the Code and to the causal principle.

1. The Principle of Acquisition by Registration (TCC Art. 705/1)

Under Turkish Civil Code Art. 705/1, registration in the land registry is required for ownership of immovable property to be acquired.

As a rule, the right of ownership arises through the registration made by the land registry official in the register. Until registration takes place, ownership does not pass to the buyer even if the price has been paid or the immovable property has actually been handed over.

2. The Validity Condition for Registration: A Just Legal Cause (TCC Art. 1024)

For a registration to transfer ownership it is not enough that the entry has been made; the registration must rest on a valid and just legal cause. Under the causal principle, if the obligation-creating transaction underlying the registration (a sale, gift or exchange contract, for example) is defective or invalid, the registration made on the basis of it does not become valid either and takes on the character of a wrongful registration (TCC Art. 1024).

3. The Official Form Requirement in Transfer Contracts (TCC Art. 706)

The validity of contracts creating an obligation to transfer ownership of immovable property is by law subject to a strict official form.

Under TCC Art. 706/1, the validity of contracts intended to transfer ownership of immovable property depends on their being drawn up in official form.

In contracts intended to transfer real estate, such as a sale, gift or exchange, the official form requirement is met by the official deed being drawn up at the Land Registry Office. In addition to the rules in the Turkish Code of Obligations No. 6098 and the Land Registry Law, an amendment made to the Notaries Law No. 1512 (Art. 61/A) has also authorised notaries public to carry out sales of immovable property.

4. Sales Outside the Land Registry in Turkey (Ordinary Written Contracts) and Their Legal Consequences

Neither ordinary written contracts drawn up between the parties themselves nor “sales outside the land registry” made without a deed drawn up by a notary public transfer ownership under Turkish law.

• Invalidity (Absolute Nullity): Contracts for the sale of immovable property made without complying with the official form are legally invalid (void) in Turkey.
• Unjust Enrichment and Restitution: The purchase price paid under an ordinary written contract may be reclaimed in Turkey under the rules on unjust enrichment (updated in line with the principle of compensatory justice).
• Return of Possession and the Defence of Non-Performance: Until the seller returns the price received, the buyer may likewise refuse to hand back the immovable property actually delivered to him (defence of non-performance – TCO Art. 97).

• Acquiring Ownership of Real Estate Without Registration in Turkey

Although the main rule is registration under the Turkish Civil Code, TCC Art. 705/2 accepts that in certain exceptional situations the right of ownership arises even before registration in the land registry.

1. The Legal Nature of Acquisition Without Registration in Turkey

Under TCC Art. 705/2, ownership is acquired before registration in cases of inheritance, a court decision, enforced sale, occupation and expropriation. In these cases the entry made in the land registry records is not a constitutive act that creates the right; it is a declaratory act that shows in the land registry an ownership right that has already arisen. Under the Limit on the Power of Disposition, even where ownership has been acquired before registration, the owner may carry out dispositions over the immovable property (sale, creation of a mortgage and so on) only if the property has first been registered in his own name at the land registry.

2. Cases of Acquisition Without Registration Laid Down by Law in Turkey

• Inheritance (TCC Art. 599): On the death of the deceased (when the inheritance opens), ownership of the immovable property in the estate passes to the heirs automatically and without registration by operation of law, under Turkish Inheritance Law. The transfer transaction made at the land registry is declaratory, not constitutive. For the heirs to transfer the immovable property, they must have it transferred into their names at the land registry.

• Court Decision (Judgments Creating Real Rights): Where a final court judgment orders the transfer of ownership or registration (for example, constitutive registration judgments or enforced registration), the right of ownership is acquired before registration at the moment the judgment becomes final.

• Enforced Sale (Sale Through Enforcement Proceedings): As a result of an auction conducted through the execution office, ownership of the real property transfers from the execution debtor to the purchaser without registration at the moment the auction is concluded (upon payment of the price and issuance of the auction report).

• Expropriation (Law No. 2942, Art. 25): In an expropriation carried out properly by the administration, ownership passes before registration when the court determines the expropriation price and orders registration in the name of the administration (or at the statutory stage that fixes the moment ownership passes to the administration).

• Occupation (TCC Art. 707): Where the owner of an immovable property recorded in the land registry records voluntarily abandons it in the register, ownership of that property is acquired without registration by taking possession of it with the intention of becoming its owner.

• Capital Contributions to Companies and Mergers: Under Turkish Commercial Law, in company mergers and divisions, or where the immovable property is contributed to a company as capital, ownership passes to the company at the moment of registration in the trade registry, before the land registry entry is made.

3. Passing of Ottoman Title Deeds by Inheritance in Turkey

The passing of  older (Ottoman-era) title deed records to the heirs and their registration require different legal procedures under Turkish law from an ordinary transfer by inheritance:

1. Identifying the Record and Documents: The true present-day equivalent of the record is researched in the archives of the General Directorate of Land Registry and Cadastre (TKGM) and of the Directorate of State Archives (land survey registers and inspection books).
2. Identifying the Type of Ownership: It is important to establish whether the real property was state-owned (miri), privately owned or foundation land. The provisions of the Land Code and of repealed legislation are taken into account.
3. Registration / Transfer Lawsuits: Where the transfer cannot be made through administrative channels, the record is carried over into the current land registry by bringing Correction of the Name/Surname in the Title Deed Record, Obtaining a Certificate of Inheritance or Title Deed Cancellation and Registration lawsuits before the Civil Courts of First Instance.

• Acquiring Ownership of Immovable Property by Acquisitive Prescription in Turkey

Under the Turkish Civil Code, where the period and conditions laid down by law are met, ownership of immovable property may be obtained through acquisitive prescription (acquisition by possession). The Code divides this form of acquisition into Ordinary Acquisitive Prescription (TCC Art. 712) and Extraordinary Acquisitive Prescription (TCC Art. 713).

1. Ordinary Acquisitive Prescription (TCC Art. 712)

Ordinary acquisitive prescription is intended to protect the ownership position of persons who appear as owners in the land registry but whose registration is in the position of a wrongful registration because the legal cause underlying it is defective.

TCC Art. 712 – Where a person is registered as the owner in the land registry without a valid legal cause, and maintains uninterrupted and uncontested possession of the immovable property in good faith for a period of ten years, the right of ownership acquired thereby cannot be challenged.

The following conditions must be met for ownership of immovable property to be acquired by ordinary acquisitive prescription in Turkey.

• Land Registry Entry Requirement: The immovable property must be recorded in the land registry and the possessor must appear in that record as the owner.
• Invalid/Wrongful Registration: The registration must not rest on a valid legal cause under Turkish law.
• Period: Possession must continue uninterrupted for 10 years.
• Possession Without Dispute and Without Interruption: During the 10-year period there must have been no lawsuit claiming ownership and nothing that interrupted possession.
• Good Faith and the Capacity of Owner: The possessor must not know that the registration is wrongful, must not be in a position where he could be expected to know, and must use the immovable property in the capacity of owner.

2. Extraordinary Acquisitive Prescription (TCC Art. 713)

Extraordinary acquisitive prescription, the form of adverse possession recognised in Turkey, allows ownership to be created over immovable property that is not recorded in the land registry records or whose owner has been struck out of the register or cannot be identified.

A. Conditions of Acquisition

• Immovable Property Without a Title Deed or in a Special Position: The property must be one that is not recorded in the land registry, or one that is recorded but whose owner cannot be identified from the register, or one belonging to a person declared absent 20 years earlier. (Note: Following an annulment decision of the Constitutional Court, “the registered immovable property of a person who died 20 years ago” has been taken out of this scope).
• Period: Possession must continue for 20 years.
• Possession Without Dispute and Without Interruption: No legal dispute concerning possession must have arisen during the 20 years.
• Possession in the Capacity of Owner: The immovable property must be used by the possessor as if it were his own.
• Good Faith Not Required: In extraordinary prescription the possessor is not required to be in good faith.

B. Procedure and Court Process

1. Lawsuit and Public Notice: The possessor brings a Registration Lawsuit before the Civil Court of First Instance to have the immovable property registered in his name. The court gives public notice in a newspaper and by local means.
2. Standing of the Parties: Depending on the facts, the lawsuit is directed against the Treasury, the relevant public legal entities (the municipality or village) or the heirs of the person shown as owner in the land registry records.
3. No Objection / Objection Rejected: If no valid objection is made within 3 months of the date of the public notice or the objection is rejected, the judge orders registration.

• Key Differences Between Ordinary and Extraordinary Acquisitive Prescription in Turkey

Where real property is obtained by acquisition by prescription, the main differences between the two institutions come down to the position of the title deed record, the period of possession, the good faith requirement and the procedure for acquiring the right.

1. The Position of the Title Deed Record

• Ordinary Prescription (TCC Art. 712): The immovable property is recorded in the land registry and the possessor appears there as the owner. That registration is, however, a “wrongful registration” because the legal cause is defective.

• Extraordinary Prescription (TCC Art. 713): The immovable property has no title deed, or, although recorded, its owner cannot be identified from the land registry, or the owner was declared absent 20 years earlier.

2. The Period of Possession

• Ordinary Prescription: Uninterrupted and undisputed possession for 10 years is enough in Turkey.

• Extraordinary Prescription: Uninterrupted and undisputed possession for 20 years is required.

3. The Good Faith Requirement (TCC Art. 3)

• Ordinary Prescription: The possessor must be in good faith. He must not know that the registration is wrongful and must not have been in a position to know it despite showing the care expected of him.

• Extraordinary Prescription: The possessor is not required to be in good faith under Turkish law. Even if he knows that the immovable property belongs to someone else, he may claim ownership by completing the 20-year period and the other conditions.

4. The Effect of the Constitutional Court’s Annulment Decision (TCC Art. 713/2)

By its decision of 17.03.2011 (Case No. 2009/58, Decision No. 2011/52), the Constitutional Court annulled the words “has died or” in TCC Art. 713/2. Even if the owner of a registered immovable property has died, that property is deemed to belong to his heirs, so a title deed cancellation and registration lawsuit cannot be brought on extraordinary prescription simply on the ground of the owner’s death and 20 years of possession. Where the immovable property has a title deed and its owner can be identified, this route is closed in Turkey.

WHAT ARE THE RISKS OF BUYING A BUILDING WITHOUT AN OCCUPANCY PERMIT IN TURKEY?

Buying a building that has no occupancy permit (iskan) can create a number of risks for the buyer, both as regards use and as regards the legal status of the immovable property. The absence of a habitation certificate does not, however, on its own mean that the building is unlicensed or unlawful. The first step is to look into whether the building was completed in accordance with its building permit and approved architectural project and why the permit was never obtained.

Under Art. 31 of Zoning Law No. 3194, there are restrictions on the use of electricity, water and sewerage services in buildings for which no use permit has been granted or obtained, until that permit is obtained. There may nonetheless be situations in which this rule produces different results, because of special arrangements such as the building registration certificate and the temporary utility subscriptions linked to it. The existence of an electricity or water subscription in a building does not therefore, on its own, show that an occupancy permit exists.

To assess the effect of a missing occupancy permit on the immovable property, it is first necessary to establish what caused the omission. Where the building has been completed in accordance with its project and only the administrative steps have not been finished, the legal risk is not the same as where the habitation certificate cannot be obtained because of works that breach the building permit or the project. Before the purchase in particular, the building permit, the approved project, the occupancy permit and the actual state of the building must be examined together.

The following points should be taken into account, especially as regards the transition to condominium ownership, mortgage lending, breaches of the building permit and any resale of the immovable property:

• The problem of moving to condominium ownership: The occupancy permit is one of the basic documents required for the move to condominium ownership. Where there is no habitation certificate, the property may remain under a condominium easement. The buyer should therefore look into why the immovable property still has condominium easement status.
• The risk that the building breaches its permit or project: An unfinished administrative step may not be the only reason why no occupancy permit has been obtained in Turkey. Works in the building that breach the building permit or the approved architectural project may also prevent one from being issued. Enclosed balconies, extensions to units that breach the project, or common areas incorporated into a unit, for example, should be examined separately.
• The risk of obtaining a mortgage: Although banks have different lending policies, buildings without a habitation certificate may be treated as higher risk in the valuation and lending assessment. If the purchase price is to be met with a loan, it is important to confirm with the bank before the sale that the real estate qualifies for a loan.
• Extra cost and administrative burden: Obtaining the building use permit under Turkish law may require breaches of the building permit to be remedied, unfinished works to be completed or certain administrative steps to be taken. The cost of that work, and who is to bear it, should be settled before the sale.
• Difficulty on resale: Immovable property without an occupancy permit tends to be less attractive, particularly to buyers who will use a bank loan. That can lengthen the time needed to sell the property, weaken bargaining power and affect the sale price.
• The presence of utility subscriptions can be misleading: The fact that the property has an electricity, water or gas subscription does not mean that the building has an occupancy permit. Because of past special arrangements or temporary subscription practices in particular, the subscription position and the building use permit must be assessed separately from each other. A conclusion along the lines of “there is no occupancy permit but there is electricity and water, so there will be no problem” should therefore not be drawn.

In short, a house without an occupancy permit can be bought in Turkey; but buying it without knowing why the permit is missing should not be regarded as a safe transaction. From the buyer’s point of view there is an enormous difference between a simple administrative gap and a serious breach of the building permit or the project.

WHICH PROPERTIES CANNOT BE BOUGHT WITH A MORTGAGE IN TURKEY?

For mortgage or housing finance purposes, banks assess not only whether the real estate can be sold at all, but also whether it has the legal and factual qualities needed to serve as security for the loan. The title deed record, the construction and use status of the real estate and the bank’s own valuation are therefore considered together.

The main situations that may lead to a mortgage application being refused, or to a loan not being granted at all in Turkey, are as follows:

• The registered type is not a dwelling or residence: Immovable property recorded in the land registry as land, a field, a vineyard or a garden is not assessed in the same way as residential property for mortgage purposes.
• There is no occupancy permit: The absence of an occupancy permit (iskan) may affect the bank’s assessment of whether the immovable property qualifies for a loan. The absence of a habitation certificate should not, however, be treated as an absolute legal prohibition that automatically makes lending impossible for every bank in every case.
• The building is not sufficiently complete: Buildings that are unfinished, or not finished to a level the valuation can accept, may not be treated as acceptable security for housing finance under Turkish law.
• Shared (co-owned) title deed: Where only a particular share of the immovable property is bought and that share does not amount to an independent dwelling, problems may arise in obtaining a mortgage. Banks assess the quality of the security separately, especially for co-owned property where no separate independent unit has been allocated.
• Unlicensed buildings or buildings that breach their permit: A building with no permit, or one that breaches its approved project and permit, may adversely affect the valuation and the security assessment under Turkish law.
• Property with a risky building determination: A risky building determination in respect of the immovable property may create uncertainty about its future legal and factual position and so lead to a negative outcome in the lending assessment.
• Property outside municipal and adjacent area boundaries: As the zoning and construction status of immovable property in these areas may be subject to different legal rules, eligibility for a loan is assessed separately.

None of the points set out above amounts to an automatic and absolute lending ban for every bank. Whether housing finance will be granted is assessed in the light of the legal position of the immovable property, the valuation report, the quality of the security and the bank’s own lending policies.

WHAT RIGHTS CAN BE CREATED OVER REAL ESTATE IN TURKEY?

Ownership is not the only right that can exist over an immovable property. Alongside ownership of the whole property or of a particular share in it, Turkish law also allows the creation of limited real rights that give other people the power to use or benefit from it, security rights such as a mortgage that secure a claim against the property, and personal rights annotated in the land registry records such as a promise to sell, a lease, a purchase option or a pre-emption right, which can then be asserted against third parties.

1. The Right of Ownership (Full Real Right) in Turkey

The right of ownership (TCC Art. 683) is the absolute and most comprehensive real right, giving the owner, within the limits of the legal order, the powers of use (usus), enjoyment (fructus) and disposition (abusus) together. Where more than one person owns an immovable property, the forms of shared ownership (co-ownership in shares or joint ownership) come into play.

• Sole (Individual) Ownership in Turkey

Under Turkish property law, sole ownership is where all the ownership rights and powers over the immovable property (use, enjoyment and disposition) belong to a single individual or legal entity.

1. Full Power of Disposition: Subject to statutory restrictions (zoning, protected sites, neighbourhood law and so on), the owner may dispose of the immovable property on his own, without needing the permission or consent of any other person, co-owner or partner (he may sell it, create a mortgage over it or let it).
2. No Sharing or Management Complications: The management decisions, unanimity or majority requirements and pre-emption risks seen in co-ownership in shares or joint ownership do not arise with this form of ownership.

• Co-Ownership in Shares (TCC Art. 688)

Co-ownership in shares is the form of ownership where several people own the whole of a physically undivided immovable property in defined mathematical shares (1/2, 1/4 and so on).

1. Independence of the Share: Each co-owner may dispose of his own share on his own; he may transfer it, pledge it, or it may be attached by his creditors.

2. Statutory Pre-emption Right: Where a co-owner sells his share to a third party, the other co-owners have a statutory pre-emption right (TCC Art. 732).

3. Management and Disposition:

   • Ordinary Matters: Each co-owner may act alone (minor repairs, for example).

   • Important Matters: A decision is taken by a majority of the shares and of the co-owners (letting the property or changing the way it is run, for example).

   • Extraordinary Matters: Unanimity is required (transferring the whole property, creating a mortgage or changing the purpose to which it is dedicated, for example).

• Joint Ownership (TCC Art. 701)

Joint ownership is where several people own the whole of an immovable property together without their shares being separated, by reason of a partnership arising under the law or under contracts provided for by law.

1. No Independent Share: The partners have no defined independent shares; the right relates to the whole of the immovable property.
2. Restriction on Disposition: None of the partners may transfer or pledge his own right on his own.
3. Unanimity Rule: Unless Turkish law or the contract provides otherwise, the unanimity of all the partners is required for every disposition and management decision concerning the immovable property.
4. How It Arises: The most common example is the community of heirs (TCC Art. 640). Joint ownership also arises in matrimonial property regimes (community of property) and ordinary partnerships.
5. Conversion into Co-Ownership in Shares: Any heir or partner may ask the judge of the Civil Court of Peace, or apply through the administrative procedure at the Land Registry Office, for the joint ownership to be converted into co-ownership in shares (TCC Art. 644).

• Limited Real Rights That Can Be Created Over Real Estate in Turkey

Limited real rights are absolute rights that restrict the powers of the owner under the right of ownership (TCC Art. 683) and grant the holder the power to use (usus), enjoy (fructus) or realise the value of (security) the immovable property.

Under the Turkish Civil Code, limited real rights fall into three basic categories: Easement Rights, Land Charges and Pledges Over Immovable Property (Mortgage and so on).

1. Easement Rights (TCC Arts. 779 – 838)

Easement rights are rights that give their holder a direct power to use or benefit from the immovable property or that prevent the owner from exercising certain powers flowing from his ownership.

• Usufruct (TCC Art. 795): Gives the holder full use and enjoyment of the immovable property (including its fruits). The owner remains the holder of “bare ownership”. It is a right tied to the person; it does not pass to the heirs. It ends on the death of the person or the termination of the legal entity (at most 100 years).
• Right of Habitation (TCC Art. 823): Gives the holder the power to use a building, or part of it, as a dwelling. It is strictly tied to the person; it cannot be transferred, let out or passed to the heirs.
• Right of Superficies (TCC Art. 826): Gives the power to build on or under land belonging to someone else, or to keep an existing building there. It is the only exception to the accession rule in property law (that a building belongs to the land); the building acquires a legal existence separate from the land. If it is built as an independent and permanent right (for at least 30 years), it can be registered on a separate page of the land registry as an immovable property and transferred.
• Right of Way (TCC Arts. 747, 818): Gives the owner of an immovable property, or a particular person, the ability to pass over another immovable property.
• Water Source Right (TCC Art. 837): Gives the power to use a water source located on someone else’s land.

2. Land Charge (Real Estate Encumbrance, TCC Art. 839)

A land charge is a limited real right in Turkish property law that obliges the owner of an immovable property, liable only with that property, to render a specific performance (to do or to give something) to another person or to the owner of another immovable property. This right secures the value of the property directly and gives the holder the power to demand performance in kind or to realise the value through enforcement proceedings.

The debtor is liable for this performance not with his personal assets but only with the value of the real estate. If the value of the property is not enough to cover the performance, the creditor cannot look to the debtor’s other assets. The right may be created in favour of an immovable property (attached to the property) or of a particular person (attached to the person). Where it is attached to the property, the obligation passes automatically to each new owner as ownership changes hands. The obligation must always be a positive performance. In other words, the owner is required to do something (to clear the road in winter or deliver firewood, for example) or to give something (a share of the produce). A mere duty to tolerate or an obligation not to act cannot form the subject of a land charge.

For a land charge to arise, an official deed (drawn up at the land registry) and registration in the land registry are required. On registration the value of the performance must be shown in Turkish lira. It ends when the entry is deleted at the land registry. Total destruction of the immovable property, expropriation and waiver by the holder are among the grounds for deletion. In addition, under certain conditions the parties have the right to redeem the charge by paying its value in money.

3. Pledge Over Immovable Property / Mortgage (TCC Art. 850)

A pledge over immovable property is a limited real right that allocates the value of the property to the creditor in order to secure an existing or future claim. Its most common form is the creation of a mortgage.

1. Mortgage (TCC Art. 881): A security right entered in the title deed record of the immovable property for a claim that already exists or is likely to arise in the future.
2. Mortgage Debt Notes and Annuity Notes (TCC Arts. 898, 903): Forms of pledge in which the claim is tied to a negotiable instrument.
3. Power to Realise the Value: If the debt is not paid, the creditor cannot simply take ownership of the immovable property (the ban on forfeiture agreements); he has the property sold through enforcement proceedings and recovers his claim from the sale price.

• How Personal Rights Gain Real Effect Through Annotation in the Land Registry in Turkey

As a rule, personal (relative) rights can be asserted only between the parties to the obligation (inter partes) and have no effect against third parties. However, under Turkish Civil Code Art. 1009, personal rights that the Code expressly allows can be entered in the “Annotations” column of the land registry and thereby made assertable against third parties.

1. The Legal Nature and Effect of Annotating a Personal Right in Turkey

The annotation does not directly turn the personal right into a real right. The right keeps its relative character but acquires the quality of a “strengthened personal right”.

• Positive Effect: The annotated personal right can be asserted directly against the holders of rights acquired later over the immovable property (a new owner, a mortgage creditor, an attaching creditor and so on).
• Negative Effect – Limiting the Power of Disposition: Third parties who acquire the immovable property later cannot claim good faith, on the ground that they knew or had to know of the annotation in the land registry records (an exception to TCC Art. 1023).

2. Main Personal Rights That Can Be Annotated in the Land Registry (TCC Art. 1009)

The basic rights that are listed exhaustively in the Code (a closed number of rights) and can be annotated in the land registry under Turkish legislation are as follows:

• Promise-to-Sell Contract for Real Estate: Where a promise-to-sell contract drawn up by a notary public is annotated in the land registry records, the promisee may bring a registration lawsuit against the new owner even if the owner sells the property to a third party (annotation period: 5 years).
• Lease Agreement: Where a lease is annotated, the tenant’s rights are protected; even if the immovable property changes hands, the new owner cannot evict the tenant during the term of the lease and is bound by the terms of the agreement.
• Purchase Option: Gives the holder the power under Turkish law to require, by a unilateral declaration, that ownership of the immovable property be sold to him (maximum annotation period: 10 years).
• Repurchase Right: Gives the seller who transferred the immovable property the power to buy it back on the original terms by a unilateral declaration (maximum annotation period: 10 years).
• Contractual Pre-emption Right: Where the real estate is sold to a third party, it gives the holder the power to buy it first (maximum annotation period: 10 years).
• Construction Contract in Return for a Share of the Land: Annotating the contract between the landowner and the contractor protects the rights of the contractor and of third parties who take over units from him.

3. Expiry of the Annotation Period in Turkey

The effect of an annotation entered in the land registry is not unlimited in every case. For a promise to sell immovable property in particular, the law requires the annotation to be deleted after a certain period. Under Land Registry Law Art. 26, for example, if the sale is not carried out or the easement right is not created and registered within five years of the promise-to-sell annotation, the annotation is deleted by the land registry officials of their own motion.

For that reason, what matters is not only that an annotation exists in the land registry records, but also which personal right it relates to, when it was entered and whether its statutory validity period is still running. When the annotation period expires, its effect ends automatically. The owner of the immovable property may ask the Land Registry Office to delete the annotation.

IN WHICH CASES ARE RIGHTS OVER REAL ESTATE RESTRICTED IN TURKEY?

Although ownership of an immovable property gives the owner wide powers, it is neither absolute nor unlimited. Under TCC Art. 683/2, the owner may exercise the powers conferred by ownership only within the limits set by law. Rights over real estate fall into two main groups of restrictions, those arising from Public Law and those arising from Private Law.

1. Restrictions Arising from Public Law in Turkey

The owner’s right of ownership is restricted directly by statute for the purposes of the public interest, public order, town planning principles and the protection of nature and culture.

• Zoning Legislation and the Construction Regime (Law No. 3194): The zoning status of the immovable property – the floor area ratio (FAR), the building footprint ratio, the storey height, the setback distances and the intended use (residential, commercial, industrial) – is fixed by the zoning plans. The owner cannot build on his land as he pleases.
• Expropriation (Law No. 2942): Where the public interest so requires, the administration may take over the ownership of the immovable property or an easement right over it, on condition that the true value is paid in advance.
• Special Conservation Regimes (Coast, Forest, Pasture, Olive Grove): Under the Coastal Law the coastline is open to the public and cannot be privately owned; construction is restricted in the areas within the shoreline. Olive groves and pasture land, in turn, cannot be used for anything other than agricultural purposes and are subject to construction restrictions.
• Urban Transformation and Risky Buildings (Law No. 6306): Where the Ministry of Environment, Urbanisation and Climate Change or the competent authorities determine that a building is “risky” or declare an area a “risky area”, the owner’s power of disposition may be restricted by majority decisions in the eviction, demolition and re-permitting processes.
• Protection of Cultural and Natural Property (Law No. 2863): In the case of registered immovable cultural property (protected sites, historic buildings), the owner may make no physical or architectural intervention without permission from the Regional Conservation Board.

2. Restrictions Arising from Private Law in Turkey

Restrictions arising from private law flow from legal bonds such as neighbourhood relations, protection of the family, life in a multi-building complex and the matrimonial property regime between spouses, and they limit the owner’s powers of use and disposition.

• Neighbourhood Law (TCC Art. 737 et seq.): In using his immovable property, the owner may not harm his neighbours or use it excessively beyond what they can be expected to tolerate (smoke, noise, vibration and the like). He may not carry out excavation or install works that would cause the neighbouring land to slip or endanger its building (TCC Art. 738). Where the rule is breached, actions for prevention of interference, restoration to the former state and damages come into play.
• The Family Residence Restriction (TCC Art. 194): In a property dedicated as the family residence, even where it is owned by one spouse alone, the owning spouse cannot transfer it, mortgage it or terminate the lease without the express consent of the other spouse. Entering a family residence annotation in the land registry makes this protection directly assertable against third parties.
• Condominium Ownership and the Management Plan (Condominium Law No. 634): Owners of units subject to condominium ownership must, in exercising their ownership rights, comply with the Condominium Law and with the rules of the Management Plan recorded at the land registry. The management plan may restrict the way a unit may be used (for example, a dwelling not being usable as an office or a shop) and the rules on the use of common areas.
• Matrimonial Property Regimes and Family Law (TCC Art. 202 et seq.): The matrimonial property regime between the spouses (the participation in acquired property regime, for example) has direct legal consequences for the acquisition and management of the immovable property, for dispositions such as a mortgage or transfer, and for its liquidation on divorce or death. Under the contractual or statutory matrimonial property regime in Turkey, the power of disposition over the immovable property may in certain cases be made subject to the other spouse’s consent or to a court decision.
• Restrictions Arising from Contracts and Limited Real Rights: Usufruct, habitation or superficies rights created over the immovable property limit the owner’s power of use. Purchase options, repurchase rights, pre-emption rights and promise-to-sell rights annotated in the land registry records restrict the owner’s freedom of disposition.

DOES THE TITLE DEED RECORD SHOW ALL RESTRICTIONS ON A PROPERTY IN TURKEY?

Under Turkish law, the title deed record does not on its own show every restriction and risk affecting an immovable property. The land registry reflects the real and personal rights recognised by the Civil Code and the annotations and declarations governed by land registry legislation; many critical restrictions arising from zoning, administrative, construction and public law do not appear in the title deed record.

1. Which Restrictions Appear in the Title Deed Record in Turkey and Which Do Not?

2. Which Other Authorities Must Be Checked Besides the Land Registry in Turkey?

To establish the legal, administrative and technical position of the immovable property in full, research must be carried out not only in the land registry but also before the following authorities:

• The Relevant Municipality (Directorate of Zoning and Urban Planning):

  1. Zoning Plan Status: Whether the immovable property is covered by a zoning plan in Turkey, whether it qualifies as a zoned parcel, and whether the plan allocates it to public uses such as a road, green area or school.

  2. Permit and Occupancy Check: Whether the building was completed in accordance with its permit and whether the building use permit exists.

  3. Executive Committee Decisions: Whether a demolition order (Law No. 3194, Art. 32) or an administrative fine (Art. 42) has been issued in respect of the building.

  4. Review of the Architectural Project: Whether the unit recorded at the land registry matches the approved architectural project held in the municipal archive (merged shelters and storage rooms, unauthorised loft conversions and the like).

• Provincial Directorates of Environment, Urbanisation and Climate Change: Special administrative restrictions concerning urban transformation, declaration of risky areas, natural protected sites or environmental conservation zones.

• Regional Board for the Conservation of Cultural Property: Whether the real estate lies within a historic or cultural protected site in Turkey, or is itself registered as a historic monument.

WHY CHECKING THE TITLE DEED RECORD AND THE LAND REGISTRY MATTERS BEFORE BUYING PROPERTY IN TURKEY

Taking over an immovable property does not merely transfer the right of ownership; all the real and personal rights recorded in the land registry records that encumber the property, together with every annotation and declaration in the title deed record, survive and pass to the new owner. Because the land registry is open to the public under Turkish Civil Code Art. 1020, a buyer who claims not to have known the entries cannot rely on good faith (TCC Art. 1020/3). Accordingly, it is legally critical to examine before the sale any encumbrances that may directly affect the possibility of using or disposing of the property, such as a mortgage, usufruct, habitation right, right of way, superficies right or land charge.

• What Happens in Turkey If the Title Deed Record and the Land Registry Are Not Checked?

Failing to examine the land registry records, the encumbrance entries and the official zoning documents properly exposes the buyer to legal, criminal and financial losses that are hard to make good. Because it is legally impossible under Turkish Civil Code Art. 1020/3 to “claim not to have known the title deed record”, every restriction that goes unchecked turns directly into the buyer’s legal responsibility.

The main legal risks of not carrying out this examination in Turkey are as follows:

1. Annotation, Declaration and Encumbrance Risks in Turkey (Legally Binding)

Where the Rights, Annotations and Declarations columns of the land registry are not examined:

• Attachment and Mortgage Burdens: The immovable property is taken over together with any mortgage or attachment annotations on it. If the mortgage creditor or the attaching creditor cannot recover the claim, he may demand the sale of the property through enforcement proceedings without the new buyer’s consent.
• Personal Rights Given Real Effect (Annotations): Where there is a Promise to Sell, Lease, Pre-emption or Purchase Option annotation on the immovable property, the buyer must accept that the holder can assert those rights against him and that ownership may be taken away from him by court action, even though he has acquired it.
• Acquiring Bare Ownership Stripped of Its Content: Where real estate burdened with a usufruct or a right of habitation is bought, the new owner acquires ownership under Turkish law but has no power to use the property or to earn income by letting it. The holder of the usufruct continues to enjoy the property until the right comes to an end.
• Family Residence Annotation: Sales made without the express consent of the other spouse carry the risk of an invalidity (title deed cancellation and registration) lawsuit under TCC Art. 194.

2. Zoning, Occupancy Permit and Construction Risks in Turkey (Administrative and Criminal Sanctions)

Where the “type” recorded at the land registry does not match the approved position at the municipality:

• Correction of Type and Absence of an Occupancy Permit: Even where the property appears in the land registry as a “dwelling”, in buildings for which no Occupancy Permit (iskan) has been obtained the correction of type has not been carried out. That raises the possibility that the building breaches its project or is unlicensed.
• Administrative Sanctions (Demolition and Fines): Under Art. 32 of Zoning Law No. 3194, a demolition order may be issued in respect of unlicensed buildings or buildings that breach their permit; under Art. 42 an administrative fine may be imposed on the new owner.
• Prevention of Interference and Restoration Lawsuits: Unauthorised additions that breach the approved architectural project (enclosing a terrace, merging a shelter, enlarging a shop and so on) may lead the condominium owners or the neighbours to bring restoration to the former state or cancellation of condominium ownership lawsuits.

3. Public and Administrative Restriction Risks in Turkey (Barriers to Use)

Even where there is no restriction in the land registry records, if the zoning plan is not examined:

• De Facto Interference and Zoning Restrictions: The immovable property may have been set aside in the zoning plan as a green area, park, school or road. In that case no building permit can be obtained for it and the possibility of building disappears entirely.
• Having to Accept the Expropriation Price: If the administration later expropriates the immovable property, the owner must accept the expropriation price fixed in the administrative or judicial assessment rather than the true market value.
• Special Protection Statuses (Protected Sites, Forest, Shoreline): Where the immovable property lies in a protected site under Law No. 2863 or within the shoreline, the rights of use may be entirely restricted, and there is also a risk that the title deed record may be cancelled in favour of the Treasury without compensation (under the Coastal Law).

4. Project and Location Mismatch in Turkey (The “Wrong Title Deed” Risk)

A mismatch between the unit number in the land registry and the flat actually being used on site (the “wrong title deed” problem) is a very common one in Turkey. If the buyer does not carry out a check of the unit’s location through the portal of the General Directorate of Land Registry and Cadastre (TKGM) and the approved architectural project, there is a risk of buying the wrong flat and of facing unlawful occupation (compensation for use) and eviction (prevention of interference) lawsuits brought by the true right holders.

• Does Failing to Check the Title Deed Record Have Legal Consequences in Turkey?

The last sentence of TCC Art. 1020 sets out an important consequence of the principle that the land registry is open:

TCC Art. 1020

The land registry is open to everyone.

Anyone who makes his interest credible may ask for the relevant page of the land registry and the supporting documents to be shown to him in the presence of the land registry official, or for copies of them to be given to him.

No one may claim not to have known an entry in the land registry.

The fact that a person did not actually see an annotation or restriction present in the title deed record therefore does not always afford legal protection. It is particularly important that the buyer of an immovable property examine the title deed record and the encumbrances before the purchase.

In its decision of 26.03.2025, the General Assembly of Civil Chambers of the Court of Cassation likewise accepted that a person who was in a position to examine the entry in the land registry records cannot be considered separately from the consequences of the principle that the register is open. The most important practical consequence for the buyer of this principle is that examining the title deed record before the sale is not merely a precaution, but also a decisive factor in assessing the legal position in any dispute that may arise later.

For that reason, an approach along the lines of “I did not see the title deed, I did not know about this entry” does not on its own amount to an adequate legal defence in respect of an encumbrance clearly shown in the land registry. Examining the current title deed record and all encumbrances before buying an immovable property is a basic step in identifying in advance the legal risks the buyer may face.

• Which Parts of the Land Registry Must Be Examined in Turkey?

• What Should Be Done Before Buying Real Estate in Turkey?

The process of buying an immovable property calls for a thorough preliminary review, both legally and technically. A property bought without adequate research, and without examining the land registry and the zoning status, may expose the buyer to the risk of paying more than the property is worth, having his rights of use restricted and even losing ownership altogether. To avoid financial and legal losses that are hard to make good, the following steps must be taken before the sale:

1. Reviewing the Encumbrance Certificate: A current title deed record showing the encumbrances should be obtained from the Land Registry Office or through e-Devlet immediately before the sale. It should be checked whether there are real rights such as a mortgage, attachment or usufruct/habitation right over the ownership, or annotations such as a family residence, promise to sell, pre-emption or pending litigation (interim injunction).
2. Checking the Architectural Project and Zoning Status: The zoning status, the approved architectural project, the building permit and the Occupancy Permit (iskan) should be examined at the relevant municipality. It should be confirmed whether the unit number in the land registry records matches the flat in the project (the wrong title deed risk) and whether any unauthorised addition that breaches the project has been made since.
3. Reviewing the Management Plan: For property with condominium ownership or a condominium easement, the Management Plan held at the Land Registry Office, which binds all the condominium owners, should be examined. The rules on the use of common areas, restrictions on commercial or residential use of the units, and any special prohibitions (a ban on pets or short-term letting, for example) should be checked.
4. Site Visit and Assessment of the Actual Position and Possession: The immovable property should be visited in person to establish whether there is an unlawful occupant or an existing tenant. If there is a tenant, the date and amount of the lease and whether there is an undertaking to vacate should be examined from a legal point of view. (Where the property has a tenant, TCO Art. 351 gives a 1-month period from acquisition in which to serve a formal warning notice).
5. Checking Municipal Financial Records and the Assessed Value: Any past property tax debt and environmental cleaning tax should be checked with the municipality to which the property belongs. An approved Property Assessed Value Certificate should also be obtained from the municipality for use on the day of the sale.
6. Checking Disaster Risk / Urban Transformation and Protection Status: It should be checked whether the area in which the immovable property lies has been declared, under Law No. 6306, a risky building or risky area, and whether it carries a fault line or landslide risk. It should also be researched whether the property is subject to a protected site, forest boundary or shoreline restriction under Law No. 2863.
7. Energy Performance Certificate and Compulsory Earthquake Insurance (DASK): For the sale to be completed officially at the land registry and for utility subscriptions to be transferred, the existence of a valid DASK policy and of an Energy Performance Certificate for the building should be checked.

HOW DOES THE LAND REGISTRY PROCESS WORK WHEN BUYING PROPERTY IN TURKEY?

Under Turkish Civil Code Art. 705, ownership of immovable property is acquired by registration in the land registry. The application for registration and the transfer of ownership become valid through the Official Deed drawn up before an official at the Land Registry Office.

1. Basic Documents to Be Prepared for the Sale in Turkey

The official documents the parties must submit under Turkish legislation so that the transfer application is complete are as follows:

• Identity Documents: The Turkish ID card or passport of the buyer and the seller (or of their authorised representatives).
• Photographs to Be Submitted: Passport photographs taken within the last 6 months (where required).
• Property Assessed Value Certificate: A certificate obtained from the municipality to which the immovable property belongs, showing the declared property tax value for that year.
• DASK Policy: A valid Compulsory Earthquake Insurance policy required in Turkey (for dwellings and workplaces).
• Power of Attorney with Special Authority: Where the transaction is carried out by a representative, a power of attorney drawn up by a notary public containing special authority to “sell/buy immovable property and sign at the land registry”.
• Sworn Translator and Witnesses: A sworn translator or two witnesses, where one of the parties does not speak Turkish or cannot read and write.

2. The Title Deed Transfer Process in Turkey Step by Step