Real Estate Sale 

The sale of immovable property constitutes one of the most fundamental types of contracts in Turkish Law of Obligations, due to its structure that creates an obligation to transfer ownership and is strictly bound by formal requirements. This legal transaction, in addition to its purpose of transferring ownership, is a complex set of rights and obligations that establishes a relationship of trust between the parties. Within the scope of the Turkish Code of Obligations, the sale of immovable property and the rights arising from this sale relationship Articles 237 to 246 , and the transfer of ownership and the legal limitations in this process are stipulated.

Validity Requirement in Real Estate Sales: Formal Form 

In contracts aimed at the transfer of immovable property, form is not merely a means of proof, but a condition for the existence of the contract (condition of validity). Article 237 of the Turkish Code of Obligations regulates this requirement in three different levels:

A. Real Estate Sale and Formal Procedures

Real estate sales contracts in an official form .

• Authorized Authority: In the Turkish legal system, the authority authorized to carry out the official procedures for real estate sales is, as a rule, the Land Registry Office.
• Notaries' Authority: With the legal regulation made in 2023, notaries were also given the authority to draw up real estate sales contracts, and this process also meets the formal requirements.

B. Form of Other Rights Giving Rise to a Sales Relationship

The legislator has subjected not only the sale itself, but also the preliminary agreements that will lead to a future sale to a strict regime:

• Promise to Sell Real Estate: This is a promise made that a sales contract for a property will be concluded in the future.
• Right of Purchase (Order of Sale): This right grants an individual the right to become the buyer of real estate through a unilateral declaration of intent.
• Right of Repurchase (Right of First Refusal): This is the seller's right to repurchase the real estate they have sold under certain conditions.

Important: All three types of contracts are only valid when made in a formal manner (drawn up before a notary)

C. Pre-emption (Shufa) Agreement

The right of pre-emption grants the holder the priority to purchase the property if it is sold to a third party. The last paragraph of the article introduces an important exception here:

• Written Form Sufficiency: Unlike other rights, the right of pre-emption arising from a contract does not require a formal agreement to be valid; a simple written agreement is sufficient for its validity.

Regime of Rights Giving Rise to a Sales Relationship

Pre-emption (shufa), purchase (istiha), and repurchase (wafa) rights are constitutive rights that empower the holder to demand the transfer of ownership of immovable property.

A. Duration and Commentary (Article 238)

To prevent uncertainty regarding real estate, the legislator has restricted these rights for a limited period

• Maximum Duration: These rights may be agreed upon for a maximum of 10 years .
• Effect of Annotation: When annotated in the land registry, these rights become enforceable against subsequent owners (third parties) of the property. The duration of the annotation cannot exceed the period specified in the relevant laws (usually 10 years).

B. Transfer and Inheritance (Article 239)

These rights are, as a rule, designed as personal rights:

• General Rule: Unless otherwise agreed, these rights cannot be transferred to another party.
• Exception: These rights automatically pass to the heirs through inheritance
• Transfer Condition: If it has been agreed that the right can be transferred, the transfer process must also be carried out in accordance with the same form (official or written) used to establish the original right.

 Exercise of the Right of Pre-emption 

A. The Birth and Limits of Rights

The right of pre-emption can be exercised in transactions where the real estate is sold to a third party or is economically equivalent to a sale (for example, contributing the real estate as capital to a company). However, it cannot be exercised in the following cases:

• The division of inheritance,
• Forced auction (enforcement sale),
• Expropriation-like procedures for public service purposes.

B. Notification Obligation and Conditions

After the sale is completed, the seller or buyer is obligated to notify the pre-emption right holder of this situation through a notary public . Unless otherwise agreed, the pre-emption right holder takes over the property under the same conditions as when the third party purchased it (price, payment terms, etc.).

C. Statute of Limitations

The exercise of the right of pre-emption through legal action is subject to strict time limits:

• 3 Months: Starts from the date the sale is notified through a notary.
• 2 Years: Even if no notification is given, it starts from the date of sale in any case.

Legal Regime and Process Management of Rights Arising from Sales Relationships

The Turkish Code of Obligations strictly regulates the rights of pre-emption (shufa), purchase (istiha), and repurchase (vefa), which restrict the right to dispose of immovable property or aim at acquiring ownership in the future. These rights protect property security and the priorities of rights holders, while also being equipped with mechanisms to prevent the uncertainty surrounding the property from continuing indefinitely.

A. Duration, Commentary and Transfer through Inheritance

These rights, which grant the authority to acquire immovable property, may be agreed upon for a maximum of ten years . Registration of these rights in the land registry gives them a tangible character, enabling them to be asserted against subsequent owners. Although the principle of "strictly personal" prevails in legal doctrine, the legislator has permitted the inheritance of these rights; however, their transferability is conditional upon the conclusion of a contract that meets the formal requirements (official or written) for the establishment of the original right.

B. Areas and Limitations of the Exercise of the Right of Pre-emption 

The right of pre-emption is triggered not only in classic sales, but also in any transaction that aims at the transfer of ownership and is economically equivalent to a sale (for example, contributing real estate as capital to a company). However, it is legally impossible to exercise this right in cases of involuntary transfers such as the allocation of property to an heir during the distribution of an inheritance or compulsory auction (enforcement sale). The most critical obligation imposed on the seller or buyer in such cases is to notify the rightful owner of the sale through a notary public .

C. Safeguards Preventing Loss of Rights and Statute of Limitations 

As a reflection of the principle of good faith in legal disputes, the termination of the sales contract by mutual agreement between the buyer and seller after the pre-emption right holder has exercised their right cannot be invoked against the right holder. This provision is a mandatory rule preventing the parties from circumventing the priority right through collusive transactions. The exercise of this right by the right holder is also subject to strict time limits; three months , and in any case, two years . The fact that these time limits are "preclusive" aims to bring stability to the uncertainty surrounding real estate ownership as soon as possible.

 Performance, Responsibility and Transfer of Risk in Real Estate Sales

Although the sale of real estate is a process completed with registration, the time difference between the moment of registration and the moment of actual delivery brings with it various legal risks. The legislator has created special provisions to share these risks.

A. Conditional Sale and Prohibition of Reservation of Title 

In real estate sales, the registration of ownership should, as a rule, be unconditional.

• Suspensive Condition: If the sale is conditional on a specific event, registration in the land registry cannot be completed until that condition is met.
• Prohibition of Retaining Title: While the clause "the property is mine until payment is received" (retaining title) is possible in the sale of movable property, it is strictly prohibited for immovable property. The principle of transparency and security of the land registry does not allow for the fragmentation or retention of title.

B. Liability for Deficiencies in Surface Area and Construction Defects

Discrepancies between the physical characteristics of the property and the data in the title deed or contract give rise to liability for the seller

• Deficiency in the Contract: If the property turns out to be smaller than the area promised in the contract, the seller is obligated to pay compensation.
• Official Measurement Exception: If the area is recorded in the land registry based on an official measurement (cadastral data), the seller is liable for compensation unless they specifically guarantee (undertake) this figure. "Reliance on the land registry" is essential here.
• Statute of Limitations: Specific time limits are stipulated for defects in the structure. The time limit for filing a lawsuit is generally 5 years, but if the seller is guilty of gross negligence (hidden defect, fraud, etc.), 20 years.

C. Transfer of Benefit and Risk 

In real estate sales, the rule is that the benefit and risk pass to the buyer upon registration. However, the special regulation introduced by this article is as follows:

• Delivery Record: If the parties have agreed in writing that the property will be delivered on a date after registration , the risk and benefit pass to the buyer at the time of actual delivery , not at the time of registration
• Default: If the buyer delays taking delivery of the goods (falls into default), the damages are considered to have passed to the buyer.

 Application of Movable Property Sale Regulations by Analogy

In all cases not covered by the section on the sale of immovable property (e.g., seller's default, details of liability for seizure, etc.), the provisions relating to the sale of movable property shall apply to the extent that they are appropriate (by analogy).

4. Sale of Real Estate by Public Auction

In sales through auction, the "bidding" phase, which is the moment the contract is formed, is subject to stricter rules than in sales of movable property.

A. The Principle of Immediate Bidding

In real estate auctions, the rule is that the process should be concluded quickly. According to Article 277, the auction must be held or rejected as soon as the bidding ends.

• Legal Certainty: This rule ensures that the highest bidder (the one who submits the highest bid) knows how long they will be bound by their bid. If the auction is not held despite an unreasonable amount of time passing after the bidding, the bidder is released from their obligation.

B. Bidder's Commitment and Prohibited Conditions

The law renders invalid any "indefinite commitment" clauses that are detrimental to the bidder:

• Invalid Condition: If a condition is included in the contract stating that "the bidder's commitment will continue even after the increase (e.g., for 1 week)," this condition is absolutely null and void.
• Its purpose is to prevent the buyer's will from being indefinitely suspended and the seller from arbitrarily waiting, and to ensure that the auction system operates within the rules of fairness.

C. Exceptions: Forced Increases and Public Approval

The "immediate tender" and "termination of commitment" rules above do not apply in the following two situations:

1. Compulsory Auctions: In sales conducted under the Enforcement and Bankruptcy Law, this rule is relaxed as additional periods and procedures are stipulated for the completion of the legal process.
2. Public Official Approval: If the validity of the tender requires the approval of a local authority or public official (such as in the sale of municipal or foundation properties), the bidder's allegiance continues until the approval process is completed.

Real Estate Disputes

Disputes related to real estate sales occupy a significant place in the Turkish legal system, both due to the high economic value of the property and the strict formal requirements of the sales process. These disputes generally span a long period, from the formation of the contract to hidden defects after the title deed registration.

Here are the most common types of disputes in real estate sales and how to resolve them:

Basic Types of Disputes

A. Non-compliance with Form and External Sales

The most common disputes arise from sales conducted outside the land registry office (not in the form of a "deed" at a notary public, but in simple written form).

• Dispute: The buyer has paid the price, but the seller is refusing to transfer the title deed.
• Legal Consequence: Real estate sales made without adhering to formal requirements are invalid. However, the Supreme Court sometimes finds it contrary to the principle of good faith for the seller to invoke a "formal deficiency" when the full price has been paid and the property has been delivered.

B. Deficiencies in the Area and Quality of the Property 

• Dispute: The purchased house or land turns out to be smaller in square footage than stated in the contract, or its zoning status differs from what was promised.
• Solution: Although the seller is not liable for measurement errors in the official land registry unless they specifically undertook the task, they do incur an obligation to pay compensation if they promised a certain amount in the contract.

C. Structural Defects and Hidden Defects

• Disputes: Plumbing problems, insulation defects, or structural problems that arise after delivery.
• Statute of limitations: The liability period for defects in immovable property is generally 5 years, but if the seller is guilty of gross negligence (concealing the defect), 20 years.

D. Violations of the Right of Pre-emption (Shufa)

• Dispute: In co-ownership, a co-owner selling their share to a third party without informing the other co-owners.
• Solution: Other shareholders can file a pre-emption lawsuit within 3 months of being notified of the sale through a notary public, requesting the registration of the share in their own names

 Courts with Jurisdiction and Authority

In real estate disputes, the question of "where to file a lawsuit" is determined by the nature of the dispute:

• Consumer Courts: If the buyer purchased the house from a construction company (contractor) for residential purposes, the dispute will be heard in the Consumer Court.
• Civil Courts of First Instance: These are the courts with general jurisdiction in sales disputes between two parties or in cases involving the cancellation and registration of title deeds.
• Commercial Courts of First Instance: These courts have jurisdiction if the dispute relates to the commercial businesses of both parties.

Exclusive Jurisdiction Rule: In cases concerning the ownership of immovable property, the place where the property is locatedhas exclusive jurisdiction. This rule cannot be altered by the parties.

Solution Methods and Procedures

1. Provisional Injunction Decision

In real estate disputes, the most critical step a "precautionary measure" . This annotation placed on the land registry ensures the protection of the right to be obtained at the end of the lawsuit.

2. Expert Opinion and On-Site Inspection

The court conducts an on-site inspection . An expert panel consisting of civil engineers and cadastral technicians identifies any deficiencies, defects, or discrepancies in surface area on-site and prepares a report.

3. Mediation

Some disputes regarding the transfer of real estate (particularly those arising from commercial and consumer transactions) mandatory mediation .