Is there a right of pre-emption regarding the transferred independent unit, including land shares and co-ownership in common areas? Under what circumstances might a right of pre-emption arise? 

Is there a right of pre-emption regarding the transferred independent unit, including land shares and co-ownership in common areas? Under what circumstances might a right of pre-emption arise?

Whether there is a right of pre-emption over the transferred independent unit, and essentially whether the provisions regarding the right of pre-emption in co-ownership can be applied to independent units subject to condominium ownership, constitutes the legal issue that needs to be examined.

Identifying the Relevant Legal Rules:

Turkish Civil Code Article 732; Condominium Ownership Law Article 8.

A. Right of Pre-emption in Buildings Subject to Condominium Ownership (Turkish Civil Code Article 732, Condominium Ownership Law Article 8/1): 

Among the provisions of the Turkish Civil Code regarding co-ownership, "If a co-owner sells their share in the immovable property, wholly or partially, to a third party, the other co-owners may exercise their right of pre-emption." In this context, considering the joint and co-ownership of the condominium owners in the land and common areas on which the main building is located, it can be concluded that the right of pre-emption is also applicable to structures subject to condominium ownership. However, the situation is different. Indeed,according to Article 8/1 of the Condominium Law, titled "Right of First Pre-emption," "In the event of the sale of one of the independent sections of a real estate property subject to condominium ownership, or a share of the land to which a condominium easement is attached, the other condominium owners or easement holders do not have a right of first pre-emption."  It should be noted that even without this provision, the right of pre-emption would still not be possible in structures subject to the provisions of the Condominium Law, given Article 5/1, which restricts the transaction to only the independent section.

B. Eligibility for Pre-emption Rights of an Independent Unit (Condominium Law, Article 8/2-3):

The right of pre-emption can be applied to buildings subject to condominium ownership in two separate situations:

1-) According to Article 8/2 of the Condominium Law, "If one of the co-owners of an independent unit sells their share to another person, the other co-owners may exercise their right of pre-emption first." As can be seen, there is no obstacle to exercising the right of pre-emption when the ownership of the independent unit is joint. Essentially, this provision is merely a repetition of Article 732 of the Turkish Civil Code, explained above, regarding independent units in buildings subject to condominium ownership.

2) In condominium ownership, independent unit owners may include a provision in the contract stating that they can exercise their right of pre-emption, in accordance with Article 8/3 of the Condominium Law, which states, "A provision contrary to this article may be included in the contract." The contract here refers to the official deed establishing condominium ownership, within the scope of Article 2/1,e of the Condominium Law.

RELEVANT SUPREME COURT DECISION: 

.C. Supreme Court

General Assembly of Law

Case No: 2013/6-42

Decision: 2013/410

Decision Date: March 27, 2013

TITLE DEED CANCELLATION AND REGISTRATION CASE – REQUEST FOR CORRECTION OF DECISION – DEFENDANT'S INDEPENDENT SECTIONS

NO PRIOR STAKEHOLDER – NO IRREGULARITIES FOUND IN THE FILING OF THE LAWSUIT –

THE RESISTANCE WAS OBSERVED ON SITE, AND THE FILE WAS SENT TO THE SPECIAL DEPARTMENT FOR EXAMINATION OF THE MATTER

SENDING

SUMMARY: The case concerns a claim for cancellation and registration of title deeds due to the right of pre-emption. The court determined that the defendant..

there were no previous shareholders in the independent units that are the subject of the lawsuit, and the present lawsuit..

The Special Chamber's resistance to overturning the decision on the grounds that there was no irregularity in its opening constitutes procedural irregularity

It is in accordance with the law. However, the Special Chamber did not examine the merits of the case due to the grounds for annulment. Resistance

It was decided that the case be sent to the Special Chamber for examination of its merits after an on-site inspection

It was necessary to give.

(4721 SK art. 2, 732) (1086 SK art. 440) (YHGK 10.10.2012 T. 2012/6-198 E. 2012/702 K.)

Case: Due to the pre-emption lawsuit between the parties, by way of resistance after reversal; Üsküdar

The decision of the 4th Civil Court of First Instance dated 29.11.2011, numbered 360 E., 282 K., should be overturned

including the ruling of the Supreme Court's General Assembly of Civil Law dated 10.10.2012 and numbered 2012/6-198-702,

The plaintiffs' attorney requested a review of the decision through a request for correction of the judgment;

The petition, the judgment requested to be corrected, and all relevant documents in the file were examined by the General Assembly of Law

After being read, the matter was discussed accordingly:

Decision: The case concerns a claim for cancellation and registration of title deeds due to the right of pre-emption.

The plaintiffs' attorney stated that their clients are co-owners of parcel number 1, and that the defendant also owns the same property

The plaintiffs stated that they purchased the shares of shareholders A. and S. for a total of 207,000 TL on May 27, 2005, and that they wish to exercise their pre-emption rights, requesting the cancellation of the share registered in the defendant's name

The plaintiffs requested registration in their name.

The defendant's attorney argued that the plaintiffs could only file a lawsuit regarding their own shares, and that the shares subject to sale..

They do not have the right or standing to file a lawsuit regarding all of them, and the shares in question were acquired much earlier

It was purchased with promissory notes promising to sell and registered in the land registry, and a second payment was made in addition to the official sale in the land registry

that it has been paid, in which case the sale price in the sales promise agreements is also included in the pre-emption price

Stating that the case should have been dismissed because it was not filed within the prescribed time limit, the court requested that the case be dismissed

He defended it.

The court ruled in favor of accepting the case.

Following the appeal filed by the defendant's attorney, the Special Chamber ruled on the immovable property in which the disputed share is located

The defendant first became a shareholder on July 10, 1987, and later purchased the property on May 27, 2005

The court ruled to dismiss the case on the grounds that the right of pre-emption can no longer be exercised against the acquired share

The decision was made to overturn the previous ruling on the grounds that it was not necessary; however, the Local Court upheld its previous decision.

Following the appeal of the defendant's attorney against the decision of resistance, the General Assembly of Law; in the Special Chamber's reversal decision..

By adopting the justifications, the decision to resist was ultimately in line with the Special Chamber's reversal decision

The court ruled to overturn the decision; the plaintiffs' attorney filed a request for reconsideration.

The dispute brought before the General Assembly of Law concerns the purchase of shares by the defendant in parcel 1 of block 934

He became a shareholder on May 27, 2005, and after the sale of the share, the property was converted into a condominium

Given that it was established, the defendant’s share on the parcel is independent blocks (3) and (4) in block (A)

Whether or not it falls within the scope of the sections and Block (B) (1) will be determined here

The issue hinges on whether the pre-emption lawsuit will be accepted or not.

Article 732 of the Turkish Civil Code (Law No. 4721) states that,

If the other shareholders sell their share, wholly or partially, to a third party, they have the right of pre-emption

They can exercise their rights.> it has been stated.

As clearly understood from the text of the article, the right of pre-emption is only granted to third parties who purchase a share in the immovable property

It can be exercised against individuals, that is, against a person who was previously a co-owner of the property; the right of pre-emption

It cannot be used. In essence, the local court and the special chamber ruled that the right of pre-emption cannot be exercised against a co-owner

There is no disagreement between them.

Regarding the specific case; the defendant owns parcel number 1, to which the share subject to the right of pre-emption relates

On May 27, 2005, the property was sold for 207,000 TL to co-owners A. and S., totaling 385/1200

regarding the exercise of the right of pre-emption by the plaintiffs upon the purchase of the share

This lawsuit was filed on September 9, 2005.

A contract for a share of the building was drawn up between the defendant and the plaintiffs' deceased relative, İsmet, by a notary on August 15, 1985

According to the construction contract, the building that the defendant will construct on the property in which the disputed share is located

In return, the 45/100 share corresponding to independent sections 1 and 2 in Block A will be transferred to the defendant

The landowner, İsmet, the deceased ancestor of the plaintiffs, was granted independent sections 3 and 4 in Block A and section 1 in Block B

It has been decided that the independent unit will be given.

According to the contract, the file shows that 45/100 of the shares were registered in the defendant's name on July 10, 1987

This is evident from the land registry records.

The plaintiffs argued that, in accordance with the sharing agreement in the construction contract in exchange for a share of the completed building, the parties independently..

they actually used the sections, the defendant's shares in the independent sections subject to the lawsuit were acquired on 27.05.2005

On [date], the shares purchased from shareholders A. and S. belonged to Block A, numbers 3 and 4, in which the shareholders were not previously shareholders

that the independent sections belong to independent section number 1 in Block B, therefore the defendant owns this independent section

arguing that the defendant was not a prior shareholder in the sections

They stated that they exercised their pre-emption rights with respect to these independent units.

Essentially, the defendant also filed a lawsuit in the Üsküdar 3rd Civil Court of Peace, case number 2006/678,

By accepting the sharing and actual use in the construction contract in exchange for a share of the property, to convert it to condominium ownership

A request for conversion was made, and the court decided to establish condominium ownership. This case..

It was finalized on 09.05.2006, but the shares subject to pre-emption were acquired before the finalization date

On May 27, 2005, the title deed was registered in the defendant's name without specifying the independent section number in proportion to the land share

It has been observed to be registered.

Both from the construction contract in exchange for a share of the completed building, which was drawn up by a notary public, and from the defendant's civil court case..

According to the lawsuit filed in court, the defendant's share in the construction contract in exchange for a share of the completed building,

It is stated that the property in question belongs to independent sections 1 and 2 of Block A, that there is an actual division in this regard, and that the subject of the lawsuit..

The previously acquired shares in independent units 3 and 4 of Block A and independent unit 1 of Block B

It must be accepted that this is not the case. The independent sections have been effectively divided, and each shareholder has been using their share for years, and the defendant has not claimed any rights over the independent sections in question for years

Since he did not do that, it means he was already a shareholder in these independent sections and is against him

Claiming that the right of pre-emption cannot be exercised is incompatible with the principle of good faith in Article 2 of the Turkish Civil Code.

In this case, the plaintiffs are entitled to independent units 3 and 4 in Block A and independent unit 1 in Block B

There is no irregularity in their exercise of their right of pre-emption.

Therefore, the local court ruled that the defendant had more in the independent sections that were the subject of the lawsuit

The court ruled against Özel on the grounds that he was not a stakeholder previously and that there was no irregularity in the filing of the present case

The apartment's resistance to the demolition is in accordance with procedure and law. However, depending on the reason for the demolition, the Private

The court has not examined the merits of the case.

Therefore, the request for correction of the decision by the plaintiffs' attorney should be accepted and the decision should be overturned by the General Court of Law

The decision of the Board dated 10.10.2012 and numbered E:2012/6-198, K:2012/702 is hereby revoked, by the court

The plaintiff was not previously a co-owner of the independent units that are the subject of the lawsuit

The resistance was deemed to be present, and the case was sent to the Special Chamber for examination of its merits

A decision had to be made.

Result: The request for correction of the decision by the plaintiffs' attorney is accepted, as per the decision of the General Assembly of Law dated 10.10.2012

The annulment decision dated and numbered E:2012/6-198, K:2012/702 is hereby revoked; the court's decision on the subject of the case is hereby revoked

The objection that the plaintiff was not previously a co-owner of the independent sections in question is unfounded

The case has been referred to the 6th Civil Chamber for examination of the appeals concerning the merits of the case

It was definitively decided by a majority vote at the second meeting held on March 27, 2013, to send it

It was given.