IS THE CONSENT OF OTHER SHAREHOLDERS REQUIRED FOR THE TRANSFER OF REAL ESTATE SHARES?

Generally, a shareholder in real estate can transfer their share to a third party without the consent of the other shareholders. However, according to the Turkish Civil Code, the consent or approval of the shareholders may be important in certain special circumstances. Furthermore, the right of pre-emption may come into play in this process.

1. Share Transfer and Consent of Other Shareholders

The consent of the shareholders in real estate is generally not required. A shareholder has the right to dispose of their share and can sell or transfer it to whomever they wish. However, one of the following situations may occur after such a transfer:

• Pre-emption Right (Right of First Instance) : According to Article 732 of the Turkish Civil Code, a pre-emption right can be exercised among shareholders. If a shareholder wishes to sell their share to a third party, the other shareholders may exercise their pre-emption right within 3 months of learning of the sale . This right can be exercised within 2 years of the property being registered in the land registry .

2. Failure to Exercise the Right of Pre-emption

If the other shareholders do not or do not wish to exercise their pre-emption rights, the share to be transferred can be transferred to a third party without any problems in the land registry. In other words, the other shareholders have no right to object to this situation; only their pre-emption rights, if any, come into effect.

3. Procedure to Follow If Consent Is Not Given

If the other shareholders do not consent to the share transfer and create problems during the process, the legal avenues to pursue are as follows:

• Exercise of Pre-emption Right: Other shareholders can exercise their pre-emption right to ensure that their share in the property is transferred to them, and not to a third party. To do this, they must apply to the Civil Court of Peace within the time limits specified for exercising the pre-emption right.
• Partition Lawsuit (Izale-i Şuyu): If there is a dispute among the co-owners regarding the division of real estate, a partition lawsuit can be filed. In this lawsuit, the sale or division of the property in kind can be requested. If the property cannot be divided in kind, the court will order its sale and distribute the proceeds among the co-owners.

4. Private Agreements or Contracts Between Shareholders

In some cases, there may be a prior private agreement or contract between the shareholders. For example, the shareholders may have agreed that the shares must be transferred to each other before being transferred to a third party. If such an agreement exists, it will be valid, and the share transfer cannot be made without the consent of the other shareholders.

5. Family Home Annotation

If a property a family home designation , the share cannot be transferred without the consent of the shareholder's spouse. In such cases, the spouse's consent is required for transactions such as the sale, transfer, or mortgage of the property designated as a family home.

6. Conclusion

When a shareholder transfers their share in real estate, the consent of other shareholders is generally not required. However, circumstances such as the right of pre-emption or a special contract may affect this process. Even if other shareholders do not consent, the share transfer can still take place, but in this case, the right of pre-emption may come into play. If a dispute arises between the shareholders, a partition lawsuit can be filed.

In such a process, seeking advice from a lawyer specializing in real estate law would be beneficial to protect your legal rights and ensure the process runs smoothly.