Acquisition of Joint Property: Legal Framework and Implementation Process

In Turkey, co-ownership (shared ownership) is a common occurrence in daily life and holds critical importance in inheritance, investment, and partnership relationships. Below, you will find a comprehensive guide to acquiring jointly owned real estate, covering both the legal framework and practical applications .

1) Legal Basis and Concepts

• Turkish Civil Code (TMK): Provisions on co-ownership and joint ownership (generally Articles 688 et seq.); right of pre-emption (approximately Articles 732–734 of the TMK).

• Land Registry Law and secondary legislation: Registration, restrictions, official forms.

• Condominium Law: Special regime for buildings with independent units.

• HMK: Procedure for partition (izale-i şüyû) lawsuits.

Joint ownership (co-ownership) : This type of ownership where each co- owner has rights to the entire property in proportion to their share. Co-ownership (joint ownership) : This is a regime, such as inheritance partnerships, where the shares are not defined and require joint ownership of the property.

2) How to Acquire Joint Ownership? (Types of Acquisition)

1. Purchase/transfer of shares: The sale or transfer of a shareholder's shares to a third party.

2. Inheritance: The estate gives rise to joint ownership; it can be converted to co-ownership through division (partition).

3. Donation, exchange, incorporation: Share transfers can also be done through different contracts (note the possibility of pre-emption).

4. Liquidation / Auction: Acquisition of shares through auction in the sale of a partnership.

3) Pre-Purchase Legal Review (Due Diligence)

• Title deed record: Owners, share ratios, encumbrances (mortgage, seizure, annotations, family home annotation), easements.

• Zoning and land use: Zoning plan, road/green space dedication, restrictions on agricultural land division.

• Pre-emption risk: The legal right of pre-emption; pay attention to the sale price and conditions.

• Actual use : On-site inspection; is there actual partition or sharing of use , what is the potential for dispute?

• Taxes/fees: Land registry fee, revolving fund, capital gains tax.

• Family home : If the immovable property is a family home, spousal consent may be required in accordance with Article 194 of the Turkish Civil Code

4) Sales and Registration Process (Step-by-Step)

1. Agreement & contract: A real estate sales contract an official deed at the land registry office (a promise to sell is possible at a notary public, but it does not transfer ownership).

2. Appointment and documents: ID card, tax number, photograph, power of attorney (if necessary); current title deed from the seller.

3. Payment: Proven payment via bank transfer (important for future pre-emption lawsuits and collusion claims).

4. Fees and expenses: Title deed fee is generally 2% each for the buyer and seller (4% total); revolving fund.

5. Registration: The share ratio and reason for acquisition must be clearly stated in the official deed; any encumbrances or restrictions must be checked before registration.

5) Right of Pre-emption (Shuf'a) – The Most Critical Point

When is he/she born?

• In co-ownership, if one co-owner transfers their share to a third party through a sale, the other co-owners acquire a legal right of pre-emption .

Durations (summary of application):

• A pre-emption action must be filed within 3 months from the date the shareholder learns of the sale , and in any case within 2 years from the date of registration .

• The 3-month period is securely initiated if the buyer notifies the other stakeholders of the sale through a notary

Lawsuit and warehouse:

• A pre-emption lawsuit aims to claim the share under the same conditions ; the court usually a deposit of the sale price and official expenses .

• only be applied against sales; it does not arise in transactions such as donations or barter. However, a fraudulent donation (which is actually a sale) can be considered a sale in light of Supreme Court precedents.

Practical defense/attack points:

• The veracity of the price (real estate market value/false price), cash-on-deferred payment terms, notification procedure, of bad faith/obstruction .

• Family home annotation, mortgage , and third-party real rights; the effect of pre-emption decisions on these.

6) Terms of Use, Management, and Agreements

• Shared use agreement (de facto/written): Stakeholders a usage agreement , which can be for a fixed or indefinite period; registered , it can be enforced against third parties.

• Management decisions: In ordinary business, a majority of shares and shareholders; in extraordinary business, unanimity may be required (with the exception of the principle of adaptation and abuse of rights).

• Rent and income sharing: Shareholders share rental income proportionally; the savings limits for a single shareholder must be carefully determined.

7) Disputes and Solutions

1. Dissolution of partnership (Izale-i shuyu)

   • Exactly, through partition (if the plot is divisible) or sale .

   • Technical expert report (zoning-cadastre), ensuring the auction process is carried out properly.

2. Pre-emption lawsuit

   • Time limits, storage, fees/expenses and interest calculations; arguments of bad faith.

3. Prohibition of interference / compensation for unlawful use

   • Compensation claims due to unfair use among stakeholders.

4. Collusion / fraud / cancellation

   • If the form of donation is actually a sale, then there is the right of pre-emption; claims of excessive exploitation.

8) Special Cases

• Family home: There is a risk of the sale being cancelled if the spouse does not consent.

• Agricultural lands: Indivisibility and minimum agricultural size; effects of the Agricultural Law on share transfers.

• Foreigners : Restrictions such as a 10% district-based limit and a total limit of 30 hectares , and security zone prohibitions (will be evaluated separately in files involving foreign stakeholders)

• Condominium ownership: Transfer of shares in independent units, use of common areas, provisions of the management plan.

• Pledge/Mortgage: If there is a mortgage on the share, the creditor's rights are reserved.

9) Taxes and Costs (Summary)

• Title deed fee: As a rule, a total of 4% (2% each for buyer and seller).

• Revolving fund: Small.

• Capital gains tax: The profit earned by the seller may be taxed under the Income Tax Law under certain conditions.

• Stamp/tax exemptions: These vary depending on the type of transaction.

10) Practical Checklist for Implementation

• the latest title deed registration and encumbrance list?

• the pre-emption risk and notification strategy been determined (notarized notification)?

• transfer / was a receipt provided?

• the usage protocol/management plan been documented in writing?

• family home, mortgages, or easements been checked?

• the zoning, cadastral, and technical divisibility (to account for the risk of future partition) been examined?

Conclusion

Acquisition of jointly owned property is a process requiring fine-tuning in areas such as pre-emption rights , usage and management arrangements , and dissolution of co-ownership . Solid due diligence , a sound contract and notification strategy , and swift procedural management in case of disputes are crucial for the security of rights and investments.