Real Estate Ownership

REAL ESTATE OWNERSHIP: SUBJECT MATTER, ACQUISITION AND LOSS

Real estate ownership constitutes one of the most static yet economically dynamic areas of property law. This real right, which grants individuals the authority to use, benefit from, and dispose of immovable property within the limits permitted by law, is fundamental to social peace and property security. Unlike the principle of free will in contract law, "limited number and type" (numerus clausus) prevails in real estate ownership. In this context, what can be the subject of real estate ownership is not arbitrary, but is a field clearly defined by the legislator.

Subject of Real Estate Ownership

When defining the scope of immovable property ownership, not only a physical location is described, but certain legal statuses with economic value are also included in this category. Within this framework, the elements subject to ownership are as follows:

Land

Land refers to a horizontal and vertical segment of the earth's surface, whose boundaries are determined by legal and technical methods. Land is the most fundamental and natural unit of immovable property. According to the principle of vertical scope, ownership includes the volume above and below the land that is useful to the owner.

Independent and Perpetual Rights Recorded on a Separate Page in the Land Registry

While a "right" normally cannot be considered immovable property, rights possessing certain characteristics are recorded on a separate page in the land registry and subjected to the same legal status as immovable property. For a right to be considered within this scope, it must not be personal, it must grant a transferable authority to another person, and it must have been established for at least thirty years or more. This regulation paves the way for securing economic assets other than real estate with real rights.

Independent Units Registered in the Condominium Registry

Sections of a completed building that are separately and independently usable (apartments, shops, warehouses, etc.) become separate property entities independent of the main building. These sections are registered in a special registry and treated as independent properties, and all kinds of legal transactions can be carried out on them.

The Acquisition of Immovable Property and the Effect of Registration

The essential element in acquiring immovable property is registration of the right in the land registry. Registration plays a constitutive role in acquiring ownership. However, in cases such as inheritance, court decisions, forced execution, occupation, and expropriation, ownership is considered to have changed hands in the legal realm even before registration. In these exceptional cases, even if the owner possesses the right of ownership before registration, they are obliged to register their ownership in the land registry in order to carry out transactions such as sale or mortgage on this right.

Legal Transactions and Formal Requirements for Acquiring Ownership

The validity of contracts aimed at transferring immovable property, such as sales, donations, or lifetime care agreements, depends on these transactions being conducted in a formal manner. The requirement for formal documentation aims to prevent parties from making impulsive decisions regarding assets with high economic value, such as immovable property, and to ensure legal certainty. Testamentary dispositions and property regime agreements, however, are subject to their own specific formal requirements.

Occupation and New Land Formation

Acquisition of ownership of a registered immovable property through occupation is only possible if the registration of that property has been cancelled (deleted) at the owner's own request. Ownership of unregistered immovable properties cannot be acquired through occupation. On the other hand, new lands formed due to natural causes such as accumulation, landslides, or changes in water level, and which are suitable for use, generally belong to the state. The state may transfer this newly formed land primarily to the owner of the lost land or to the owner of a neighboring land.

Landslide and Mudlide Situations

Landslides caused by natural disasters generally do not lead to boundary changes. However, this principle does not apply to areas designated as "landslide zones" by the authorities. In these areas, boundaries are redefined taking into account the topography of the land. If the boundaries do not reflect the reality due to the landslide, a request may be made to redefine the property boundaries and compensate for any discrepancies.

Acquisition through Prescription

The legal system has made it possible to convert long-term and peaceful possession into ownership:

• Ordinary Prescription: If a person who is falsely registered as the owner in the land registry holds the property continuously and without dispute for ten years, their ownership right is protected and becomes unchallengeable.
• Extraordinary Prescription: A person who has possessed an immovable property that is not registered in the land registry or whose owner cannot be determined (including individuals declared missing twenty years prior) for twenty years without interruption and without litigation, may apply to the court to have the property registered in their name. During this process, local announcements are made, granting potential rights holders the right to object.

Abandoned Places and Public Goods

Rocks, mountains, hills, and infertile lands, as well as public waters, are not private property and cannot be subject to private ownership. These places are under the sovereignty and control of the state, and their protection is regulated by special laws.

Right to Request Registration and Registration by Judicial Decision

A person who has a valid legal reason to acquire ownership may apply to the court to have the ownership transferred to them by court order (judicial registration) if the owner refuses to transfer it. However, in cases where ownership is acquired before registration, such as through inheritance, expropriation, or forced execution, the rightful owner has the right to apply directly to the land registry office to complete the registration process.

Termination of Real Estate Ownership

Real estate ownership, as a rule, ends with the deletion of the registration in the land registry or the disappearance of the physical object. In our legal system, these forms of termination are examined under the following main headings:

Abandonment

The most common legal way to terminate ownership is through cancellation. Cancellation is the process of removing the ownership record from the land registry. This process usually takes place in two ways:

• Voluntary Cancellation: This occurs when the owner applies to the land registry office to have the registration deleted in order to relinquish their ownership rights. In this case, the property becomes ownerless.
• Legal Transfer: When ownership is transferred to another person (sale, donation, etc.), the registration in the name of the former owner is cancelled and registered in the name of the new owner.

Complete Destruction of the Property

Property rights continue only as long as the property upon which they are based exists. If the immovable property becomes unusable, for example, due to being submerged in the sea as a result of a landslide or being completely erased from the map as a result of a major natural disaster, the property right also ceases to exist. The demolition of only the structure on the immovable property does not terminate ownership; because the subject of ownership is the land itself.

Expropriation

In cases where public interest so requires, the state or public legal entities may acquire privately owned real estate through a unilateral administrative act. The exact moment at which ownership is terminated during the expropriation process (whether by administrative decision, payment of compensation, or registration) is determined by the relevant specific legal provisions. In this case, there is a loss of ownership against the will of the owner.

Content and Scope of Real Estate Ownership

Property rights over real estate, according to the vertical scope principle, include the airspace above the land and the layers of earth below it, to the extent that it is beneficial for the owner to use. This right, subject to legal restrictions, also considers plants grown on the land, structures built on it, and resources derived from the land as an integral part of the property.

Boundary Demarcation and Neighborhood Responsibilities

The boundaries of real estate are primarily determined by title deed plans and boundary markers on the land. If the boundaries shown on the plan do not match the actual markers on the land, the record on the title deed plan shall prevail. Each owner is obligated to participate in their neighbor's request to clarify uncertain boundaries or to have markers placed. Furthermore, structures such as walls, fences, or railings separating two properties are considered jointly owned by the two neighbors unless proven otherwise.

Structures and Material Relationships on the Site

When a structure is built on a plot of land using materials belonging to someone else, the materials become an integral part of the land. However, the owner of the materials or the landowner may request the removal of the materials if the removal process will not cause excessive damage. If the materials are not removed;

• Compensation: The landowner pays the material supplier appropriate compensation. Whether the person who commissioned the structure acted in good faith or bad faith plays a decisive role in determining the amount of compensation to be paid (total damages or minimum value).
• Transfer of Ownership: If the value of the structure clearly exceeds the value of the land, the party acting in good faith may request the transfer of ownership of the land to the owner of the structure in exchange for reasonable compensation.

Flood-Prone Structures and Rights of Superficies

Structures that extend beyond the boundaries of a property and encroach upon neighboring land are considered part of the main property if the owner has an easement right over that land. If there is no easement right, and the affected owner does not object within fifteen days of learning of the encroachment, the owner of the encroaching structure acting in good faith may request an easement right or transfer of ownership for the encroaching portion by paying a reasonable price. Furthermore, the ownership of independent structures built on or under another's land through the establishment of an easement right belongs to the holder of that right.

Media and Movable Structures

Utilities for the transmission of services such as water, gas, and electricity are considered an annex to the business, even if they are located outside the property where the business is situated. The registration of these utilities as real rights in the land registry is accomplished by registration if the utility is not visible from the outside, or by a notarized contract and construction if it is visible. In contrast, lightweight structures not intended to be permanent, such as sheds, kiosks, or gazebos, are considered movable property and are not included in the ownership of the land.

Saplings Planted on the Land and the Owner's Responsibility

The provisions regarding structures built using materials also apply to saplings planted on the land. As an important restriction, a right of superficies cannot be established over trees and forests. If the owner of the immovable property uses their property rights in violation of legal restrictions (for example, causing damage to a neighbor), the injured party may sue for restoration of the situation or compensation for the damage. The court may award compensation for damages arising from unavoidable excesses in accordance with local customs.

 Restrictions and Legal Nature of Real Estate Ownership

Legal restrictions on immovable property ownership are effective even without registration in the land registry and constitute the natural limits of property rights. These restrictions can only be modified or removed through an official contract and an annotation in the land registry. However, restrictions imposed for the public good cannot be removed even by the will of the parties.

 Legal and Contractual Restrictions on Transfer of Rights

The right of transfer, the most fundamental right of ownership, is restricted in order to protect the priority rights of certain individuals:

• Legal Right of Pre-emption: In co-ownership, if one co-owner sells their share to a third party, the other co-owners have the priority right to purchase that share. This right is exercised through a lawsuit against the buyer. The fair market value of the share is determined by the judge, and the rightful owner is obligated to pay this amount. This right cannot be exercised in forced auctions or sales under the State Tender Law.
• Statute of Limitations: This right expires three months from the date the sale is notified through a notary , and in any case, one year from the date of the sale
• Contractual Rights: Rights of purchase, repurchase, and pre-emption arising from contract become enforceable against third parties upon registration in the land registry. The effect of these registrations can last for a maximum of ten years.

 Restrictions Arising from Neighborhood Law

Neighborhood law regulates the obligations of tolerance and consideration that property owners must show towards each other

• Avoiding Disturbing the Environment: The owner must avoid disturbing their neighbor beyond an tolerable level with elements such as smoke, noise, vibrations, or odors while using their property.
• Excavations and Construction: Excavations must not disturb the soil of neighboring properties or endanger any structures on them.
• Plants and Water: If branches and roots overflowing from neighboring land are causing damage and are not removed despite warnings, they may be cut by the neighbor. Furthermore, landowners are obligated to tolerate the natural flow of water from the land above and not to alter this flow to the detriment of their neighbor.

Rights of Way and Conduit

These are essential rights granted to enable the real estate to fulfill its economic and social function:

• Compulsory Right of Way: The owner of a property without access to a public road may request a right of way from their neighbors in exchange for compensation. This right is exercised against the neighbor who offers the most suitable option and will cause the least harm.
• Obligation to Tolerate Conduit Passage: If it is impossible to route the conduit elsewhere, the landowner is obligated to tolerate the passage of water, gas, or electricity conduits through their land, provided that the owner is compensated for any damages incurred.

 Entering Another Person's Property and Public Restrictions

Nature and public interest permit intervention in property rights in certain circumstances:

• Right of Entry: Unless prohibited, forests and pastures may be entered, and wild fruits and mushrooms may be collected. Furthermore, the landowner must grant permission for access to search for things drifted by natural forces or escaped animals.
• Necessity: If intervention in the property is necessary to prevent an existing danger, and the harm to be prevented outweighs the damage to the property itself, the owner is obliged to tolerate it.
• Public Law and Improvement: Property rights are restricted by specific laws in matters such as construction, health, natural disasters, and forest protection. In improvement projects such as land consolidation or irrigation, decisions made by a qualified majority of landowners are binding on all landowners.

 Spring and Groundwater Regime

Legally, water sources and groundwater are subject to different regimes. This distinction is based on the principle that owning land does not always automatically mean owning water.

 Property Relations and the Status of Groundwater

• Water sources: Naturally occurring springs in the land are, as a rule, an integral part of the land. Therefore, the ownership of the spring is tied to the ownership of the land. Utilizing a spring on someone else's land is only possible through a water source easement .
• Groundwater: Unlike springs, groundwater is considered public water. While a landowner may own the land beneath it, they are not considered the owner of the groundwater. The extent and method of using this water are determined by specific laws (such as the Groundwater Law).

 Damage to Resources and Conservation Measures

Excavation, construction, or industrial activities on a property may damage water sources or wells on neighboring land. The legal liabilities arising from such activities are as follows:

• Liability for Compensation: A person who pollutes or disrupts a vital resource is liable to compensate for the damage caused. If the damage was not caused intentionally or through negligence, or if the injured party is also at fault, the amount of compensation shall be determined by a judge according to equity.
• Restoration: If a water source that has been cut off or contaminated is essential for drinking water, utility water, or a business's vital needs, the affected party may request that the source be restored as much as possible. This is a powerful protection mechanism that covers not only compensation for material damage but also the physical restoration of the source.

 Resources and Sharing Nourished by a Shared Bed

When the water sources in neighboring properties are fed from the same main source, a "balance of interests" is established between the owners:

• Each property owner may request that the water be retained jointly and distributed according to previous usage rates. The costs of common facilities are also shared equally.
• If an agreement on water sharing cannot be reached, one landowner may take necessary measures to retain their own water source, even if they reduce the water supply of another; however, if this increases the water quantity, they may be obligated to compensate the other landowners proportionally to the increase.

 Compulsory Water Easement and Usage Rights

The legal system protects property owners who are deprived of basic water access

• Compulsory Water Rights: A landowner who does not have water on their own land or cannot obtain water by other means may request the establishment of an easement right to use their neighbor's surplus water in exchange for full compensation. In these cases, priority is given to meeting the water source owner's own needs.
• Local Customs and Special Laws: In cases where water from wells or streams on private lands is used for drinking or watering animals, local traditions and customs apply unless there is a specific law stipulating otherwise.

 Types of Disputes and Lawsuits Arising from Real Estate Ownership

In real estate law, disputes generally hinge on determining who owns the right or exceeding the limits of the right's usage.

 Lawsuits Relating to Property Ownership

• Title Deed Cancellation and Registration Lawsuit: This is a fundamental type of lawsuit in real estate law. It is filed when a title deed record is inaccurate due to reasons such as fraudulent registration, forged power of attorney, fraudulent transfer of inheritance, or acquisitive prescription. Its purpose is to have the existing record deleted and registered in the name of the rightful owner.
• Action for Prevention of Interference (or Encroachment): This is a lawsuit filed when the owner's control over their immovable property is unjustly obstructed by another party (for example, unlawful occupation).
• Claim for Ownership: This is a lawsuit filed by the owner against a person who unlawfully holds possession (the right to possess) of immovable property, seeking its return.

Disputes Regarding Gains and Sharing

• Pre-emption (Shufa) Lawsuit: This is a type of lawsuit used by co-owners of jointly owned property when one co-owner sells their share to a third party. Determining the market value and complying with statutes of limitations form the core of this lawsuit.
• Partition of Joint Ownership (Izale-i Şuyu) Lawsuit: This is a lawsuit in which all co-owners participate, aiming to divide a jointly owned or co-owned immovable property among them through partition in kind or sale.
• Registration Lawsuit Due to Statute of Limitations: When extraordinary statute of limitations conditions (such as 20 years of possession) are met, a lawsuit is filed against the Treasury or the relevant administration for the registration of unregistered or unidentified properties.

 Neighborhood Law and Liability Cases

• Redress of Violations of Neighborhood Law: This is initiated in cases of excessive use of property (noise, odor, damage from excavations, etc.). The court may decide on restoration to the original state or compensation for the damage.
• Right of Way Lawsuit: This is a lawsuit filed by property owners who do not have access to a public road against their neighbors to establish a "compulsory right of way." The court determines the most suitable route and the exact compensation to be paid.
• Prevention of Encroachment (Encroachment Lawsuits): These lawsuits are filed to demolish structures that unjustly encroach upon neighboring land, or, if the condition of good faith is met, to transfer the encroaching portion for compensation.

Procedure and Evidence in Real Estate Cases

In resolving real estate disputes, "direct intervention by the judge" and "technical examination" are essential

1. On-site Inspection and Expert Examination: In almost all real estate cases, the court panel conducts an on-site inspection of the property accompanied by a technical expert and cadastral specialists. Boundaries, encroachments, and property values ​​are determined in this way.
2. Exclusive Jurisdiction: In cases concerning the ownership of immovable property, the court of the place where the property is located has exclusive jurisdiction. Filing a lawsuit elsewhere constitutes grounds for procedural dismissal.
3. Provisional Measures: In order to protect the right at the end of the lawsuit, it is of great importance to have a "defendant" annotation placed on the title deed or to prohibit the transfer of the property (precautionary measure) when the lawsuit is filed.