Movable and Immovable Property Rights

Property Rights and the Legal Scope of Property

Property rights are one of the most fundamental rights forming the backbone of a legal system. The concept of property, which secures individuals' economic assets, ensures the continuity of social order, and defines areas of personal freedom, is most comprehensively regulated in the property law section of the Turkish Civil Code (TMK). Property rights encompass the broadest set of powers granted to an owner over an object; however, these broad powers are shaped by fundamental legal principles such as what constitutes property, over which objects it can be established, and where its limits end.

The Legal Nature of Property Rights

Property rights are an absolute right, assertable against everyone, granting the owner the authority to use, benefit from, and dispose of an object as they see fit, in accordance with its intended purpose. Legal literature generally recognizes three main powers of ownership:

1. Use (Method): The owner has the right to use the property in their possession according to their own needs or desires, in accordance with the nature and purpose of the property. This is the most fundamental positive right of ownership.
2. Utilization (Fructus): The right to benefit from the natural or legal fruits (products) of an object. Examples include the fruit of a tree, rental income from a house, or the offspring of an animal. The owner may collect, sell, or use these products.
3. Right of Disposition (Abusus): The owner has the broadest right of disposal over the property. They can transfer the property to another person, sell it, donate it, establish limited real rights such as a pledge, or even abandon (consume) it.

Property rights are exercised within the limits set by the legislator. These limits aim both to protect public order and to prevent interference with the rights of others. For example, a person cannot build whatever they want on their property; they must comply with zoning regulations and neighborhood law rules.

Distinction between movable and immovable property

In property law, the classification of goods directly affects how rights are acquired, transferred, and which rules apply in case of disputes. At the heart of this classification lies the distinction between "movable" and "immovable" property.

Real Estate Ownership

Real estate refers to fixed assets that cannot be moved from one place to another. According to the Turkish Civil Code, land, independent and permanent rights recorded on a separate page in the land registry, and independent sections (apartments, workplaces) subject to condominium ownership are considered real estate. The most distinctive feature of real estate ownership is that the system is based on the "land registry." Transfers of real estate are not legally established through contracts made at a notary public, but through official deeds and registration processes carried out at the land registry office. This "registration principle" is the most fundamental mechanism ensuring the security of property rights.

Movable Property

Any tangible item that can be moved from one place to another falls under the category of movable property. Vehicles, jewelry, commercial goods, personal belongings, and even some natural elements (with limitations) are considered movable property. The system of movable property ownership is based on "possession" (actual control over the item). Generally, agreement between the parties and the transfer (delivery) of possession of the item are sufficient for the transfer of ownership of a movable item. While immovable property has a land registry record, for movable property, apparent possession is the most important proof of ownership.

Limits of Property and Public Interest

Although the right to property is an "absolute" right, it is not an "unaccountable" right. The Constitution and the Turkish Civil Code emphasize the social function of property. The owner is obligated not to harm the environment, neighbors, or public order when exercising their property rights. For example, the right to property does not grant the authority to construct a building on the property that would harm others. Furthermore, in cases where public interest so requires (expropriation, compulsory right of way, etc.), the right to property may be restricted by law.

Violation of Property Rights

Although the content and scope of property rights are clearly defined, in practice, attacks on property rights are inevitable. These attacks generally occur in two ways:

1. Prevention of interference: The unlawful use by another person of movable or immovable property owned by another (e.g., unauthorized occupation or appropriation of property).
2. Disputed ownership: This refers to situations where multiple individuals claim ownership of the same property, or where errors in the land registry record lead to lawsuits for the cancellation and registration of title deeds.

Properly managing property law depends on understanding these fundamental distinctions (movable/immovable property, possession/registration). In resolving a dispute, if the subject matter is immovable property, it is essential to rely on land registry records; if it is immovable property, the presumption of possession must be applied.

In conclusion, property rights are at the heart of property law. The distinction between movable and immovable property ensures legal certainty in the protection and transfer of ownership. The delicate balance between the rights of the owner (use, enjoyment, disposal) and the rights of others and public order forms the basis of property law. This foundation is indispensable for the realization of justice in property disputes. 

 Real Estate Ownership: Land Registry, Acquisition Methods and Limitations

Real estate ownership is the most meticulously protected area in our legal system, and the one with the most legal security measures in place. Land and the structures built upon it constitute both the largest part of individual wealth and the foundation of the societal economy. Therefore, how real estate ownership is acquired, under what conditions it can be used, and how it can be restricted are strictly regulated in the Turkish Civil Code (TMK).

The Importance and Power of the Land Registry

The Land Registry is central to real estate ownership . In Turkish law, the principles of "publicity of the land registry" and "reliance on the land registry" are fundamental. This principle protects the acquisition of rights by bona fide third parties over real estate where a person is listed as the owner in the land registry. In other words, a person who purchases real estate relying on the land registry record is considered to have acquired ownership unless they are aware that the record is incorrect. This ensures legal certainty in real estate transactions.

Methods of Acquiring Immovable Property

Acquiring real estate ownership usually results from a legal transaction, but sometimes it is also possible due to legal obligations or factors such as prescription.

1. Legal Transaction (Contract and Registration): The most common way to acquire ownership of immovable property is through contracts such as sales, donations, or exchanges made between parties at a notary public or land registry office. However, it should be remembered that the contract alone does not transfer ownership; ownership registration .
2. Acquisition by Inheritance: Upon the death of the testator, the heirs acquire the right of ownership over the immovable property by law (with exceptions) before registration. However, in order to dispose of (sell) the immovable property, it is necessary for the transfer of ownership to be registered in their names in the land registry.
3. Acquisition by Prescription (Ordinary and Extraordinary): – Ordinary statute of limitations: Ownership can be acquired by possessing the property in the name of the person listed as the owner in the land registry for 10 years, provided certain conditions (good faith, proper record keeping) are met.
   • Exceptional prescription: For lands not registered in the land registry or whose owner has been missing (unknown) for 20 years, a person who has possessed the land without dispute and continuously for 20 years can acquire ownership rights. This is a method used to bring "unregistered" or "ownerless" lands into the economy.

Restriction of Real Estate Ownership

Property rights are not an unlimited freedom. The rights of the owner of immovable property are governed by both public and private law rules

• Public Law Restrictions: Legislation such as zoning laws, environmental protection laws, and forestry laws restrict the owner's right to construct, use, and modify their property. For example, you cannot add an extra floor that violates the zoning plan determined by the municipality.
• Private Law Restrictions (Neighborhood Law): The property owner is obligated to refrain from any action that would harm their neighbor. Making noise, emitting odors or smoke, or interfering with a neighbor's property (e.g., boundary violation) are prohibited. Furthermore, the law may mandate the construction of a road over a neighboring property if the property lacks access to a public road, such as in cases of "compulsory right of way."
• Limited Real Rights: The owner may transfer certain powers (use or enjoyment) of the property to another person. Rights such as easements (right of way, right to a water source, right of residence) or mortgages temporarily restrict the content of ownership.

Problems Encountered in Real Estate Ownership

The most common disputes in real estate ownership stem from erroneous registrations, which we call "fraudulent registration," or from properties held for many years through possession despite having title deeds. Particularly in agricultural lands, the discrepancy between title deed boundaries and actual land use is one of the most frequent sources of litigation. Errors made during cadastral surveys, the inability to divide shares through inheritance, or administrative confusion in jointly owned properties are major obstacles to property ownership.

The process of acquiring and protecting real estate ownership is a highly formal and formal process due to the principle of "registration." The owner is obligated to verify the accuracy of the data in the land registry for all transactions related to their property. Knowing the restrictions (annotations, declarations, easements) on a property is the most important step in properly managing real estate ownership.

Understanding the limits of immovable property ownership and the requirement for registration is vital for protecting property from potential future disputes. Unlike the principle of registration for immovable property, the situation with movable property is entirely based on the power of possession. In the next section, we will examine how the right of ownership is formed over movable property and why the principle of possession is considered a "presumption of ownership".

Movable Property: Possession and Acquisition of Ownership

Movable property, unlike immovable property, has a more dynamic, faster, and adaptable legal structure that keeps pace with daily life. Just as "land registry" is essential for immovable property, "possession" is essential for movable property. We don't need to go to the land registry office to prove ownership of a movable property or to transfer ownership; the concept of possession is the fundamental determinant and presumptive evidence of ownership here.

What is Possession and Why is it Important?

Possession is the state of having actual control over an object. Being the owner and being the possessor are not always the same thing. For example, a tenant is the possessor of the furniture in a rented house, but not the owner. Ownership is a legal right; possession is the outward manifestation of this right.

In the Turkish Civil Code, possession is considered a presumption of ownership. That is, a person who holds (is in possession of) a movable property is considered its owner until proven otherwise. This presumption makes movable property transactions safe and fast. When you buy a product from a store, the transfer of possession creates a legal certainty that ownership has also passed to you.

Acquisition of Movable Property

Movable property is acquired in three main ways:

1. Transfer of Ownership (Voluntary): This is the voluntary transfer of ownership of a movable asset from the previous owner. This occurs through the delivery of the item (transfer of possession). For example, when you buy a computer, ownership legally passes to you upon its delivery. The previous owner's right to dispose of the property is a prerequisite here.
2. Original Acquisition (Not Based on Will): This is the act of establishing actual control over a movable property that does not belong to another or is ownerless, with the intention of taking possession of that item. For example, a person finding an ownerless seashell in the sea and taking it is an example of original acquisition of ownership.
3. Acquisition by Prescription (Acquisition in Good Faith): This is perhaps the most interesting and protective aspect of movable property law. If someone acquires a movable property without knowing, and without needing to know, that it belonged to someone else (in good faith), they acquire ownership of that property – under certain conditions. For example, if you buy a watch from a second-hand shop without knowing it has been stolen, the law protects your ownership rights in certain circumstances.

Protection of "Good Faith" in Movable Property

In movable property, the principle of "protection of bona fide third parties" is fundamental. If the person selling the movable property does not have ownership rights (for example, if they are a custodian or a thief), ownership generally does not transfer. However, if the buyer is acting in good faith and has a legitimate reason to trust the seller, the legal system may grant ownership to the buyer to prevent them from being harmed. This acts as a shield providing "legal security" in the circulation of movable property.

Common Disputes Regarding Movable Property

Disputes in movable property generally focus on the following points:

• Claims of Ownership: This is a lawsuit filed by the true owner against a possessor who unjustly holds movable property, demanding "this item is mine, return it to me."
• Retention of Title Agreement: Especially in installment sales, the seller may stipulate that ownership remains with them until full payment is received. This agreement grants the seller the right to reclaim the item if the buyer fails to make installment payments. However, the validity of this agreement depends on it being drawn up by a notary or registered in specific registries.
• Theft or Loss Cases: In cases of stolen or lost property, the principle of good faith acquisition applies much more strictly. The owner has the right to file a lawsuit within a certain period (usually 5 years) to recover their property. This period is a statute of limitations that protects the ownership of movable property.

Management of Possession and Ownership Relationships

When claiming rights over movable property, "possession" is always the strongest starting point. If you possess an item, the other party must prove that you are not the owner. However, for a legitimate claim of ownership, it is crucial not only to possess the item but also to be able to document how you acquired it (with invoices, contracts, payment receipts, etc.).

In summary, movable property is subject to a "quick and easy" acquisition regime. Instead of the formalities and land registry required for immovable property, "de facto control" and "good faith" are the guiding principles for movable property. While this speeds up daily commercial life, it can also complicate the burden of proof in case of disputes. When managing movable property, especially for high-value items, written evidence and documenting the transfer process are the safest way to protect your property rights.

Property Disputes (I): Prevention of Encroachment and Cancellation/Registration of Title Deed

Although property rights are recognized on paper or in the land registry, infringement of these rights by third parties is quite common in real life. Since attacks on immovable property can damage the essence of ownership, the legal system has developed very strong and result-oriented types of lawsuits in this regard. The most important of these are the "Prevention of Encroachment" (Interference Prevention) lawsuit, which aims to protect property rights, and the "Cancellation and Registration of Title Deed" lawsuit, which ensures the confirmation of property rights.

1. Action for Prevention of Encroachment (Prohibition of Interference)

When a property owner faces an unlawful interference (occupation) with their real estate, they request that this interference be stopped. For example, your neighbor fencing off part of your garden, someone constructing a building on your property without permission, or an squatter living in your house are key issues in this type of lawsuit.

• The logic of the case: The owner has the right to use their property as they wish. If someone else is unfairly preventing this use, the owner has the right to say, "Stop interfering, leave it alone."
• Burden of Proof: The plaintiff, the landowner, must first prove ownership of the property through title deed records. Then, they must demonstrate that the defendant, the interfering party, has been using the property "unlawfully."
• Outcome: If the court accepts the case, it will order the termination of the unlawful interference, the evacuation of the occupied area, or the removal of the obstacles. The case will be dismissed if the interfering party has a valid contract or legal right (such as an easement) to the property.

2. Title Deed Cancellation and Registration Lawsuit

This is the most basic type of lawsuit filed when property rights are incorrectly recorded in the land registry or when legal procedures are violated during a transfer of ownership. The person claiming to be the true owner of the property requests that the existing title deed be cancelled and registered in their name.

The main arguments for this case are as follows:

• Fraudulent Transactions by the Deceased: This procedure aims to annul transactions where the testator falsely presents them as "sale" in the land registry but are actually "donations," in order to defraud heirs of their inheritance.
• Incapacity: If the person conducting the sale transaction lacked the capacity to understand the situation at the time of the transaction (e.g., due to mental instability), the cancellation of the title deed may be requested.
• Abuse of Power of Attorney: This is a lawsuit filed when a property is sold through a power of attorney in a way that is detrimental to the person who granted the power of attorney (for example, at a very low price).
• Fraudulent Registration: This refers to a situation where a registration in the land registry is made without any legal basis (for example, through forged documents or fraud).

Case Procedures and Legal Strategy

In both types of cases, the most critical point is "on-site inspection and expert examination.".

1. Technical Assessment: The judge, along with a team of experts from the court clerk's office (usually a surveying engineer and a construction expert), personally visits the property to conduct an inspection. The ground correspondence of the title deed boundaries is determined in this way.
2. Comparing Records: Land registry records, cadastral records, and any existing contracts are compiled to determine the source of the dispute.

Tips for Protecting Property

• Statute of Limitations: A lawsuit to prevent encroachment can be filed at any time as long as the encroachment continues; it is not subject to a statute of limitations. In lawsuits for the cancellation of title deeds, however, different time limits may apply depending on the cause (or indefinitely if there is no cause).
• Precautionary Measure: When filing a lawsuit to annul a title deed, the most important strategic move is to have a "precautionary measure" annotation placed on the title deed to prevent the property from being sold to someone else . Without this annotation, the property may be sold to a third party while the lawsuit is ongoing, complicating the course of the proceedings.

These lawsuits are the most fundamental lines of defense for property rights. Determining ownership and preventing interference is where the "scales of justice" are struck in property law. However, sometimes property rights may be held not by a single person, but by multiple individuals (shareholders). In the next section, we will conclude our guide by addressing "Dissolution of Joint Ownership," the biggest problem in this ownership structure among shareholders, and "Neighborhood Law," which ensures peace in the use of real estate.

In property disputes, every document, every title deed, and every boundary line is evidence. An expert appraisal report determines the outcome of 90% of these cases.

Property Disputes (II):Dissolution of Joint Ownership (Partition) and Neighborhood Law

In the final installment of our property law series, we address situations where ownership is “indivisible” or “interacts with the environment.” Management issues arising when a property has multiple owners, and interference stemming from neighborhood relations, are among the most litigated areas of property law.

Dissolution of Joint Ownership (Izale-i Şuyu)

While the ownership of a property by multiple individuals through inheritance or co-ownership may theoretically seem like a legal security, in practice it often leads to management crises. One shareholder may want to sell the property while another wants to occupy it; to overcome this impasse, "Partition of Joint Ownership" lawsuit (Izale-i Şuyu) comes into play.

• The aim of the lawsuit is to terminate shared or joint ownership, thereby severing the legal ties between the owners of the property and ensuring that everyone receives their due.
• Methods:
• 1. Partitioning in Kind: If the real estate (for example, a large plot of land) is divisible, the judge divides the property into parts according to the shareholders' shares.
• 2. Dispute Resolution by Sale: If the property cannot be divided (for example, an apartment), the court will order the property to be sold at auction and the proceeds distributed proportionally to the shares. This is usually a last resort when shareholders cannot reach an agreement.

Neighborhood Law and Border Relations

Property rights end where the rights of others begin. Neighborhood law establishes strict rules to ensure that property owners do not infringe upon each other's rights.

• Disturbances (Emissions): The landlord must avoid causing disturbances such as smoke, dust, odors, noise, or vibrations to an extent that would harm their neighbor. If these disturbances exceed the limits of "normal use," the neighbor may request that the disturbance cease.
• Boundary Violations: Branches of trees on a property extending into a neighbor's garden, or a structure encroaching on a neighbor's land (encroaching structure), can lead to serious disputes. In cases of encroaching structures, if the builder is acting in good faith and paying compensation to the other party, the structure may be allowed to remain in certain limited circumstances; however, the rule is that the encroachment should be removed.
• Right of Way: A property owner whose property does not have access to a public road (does not have road frontage) can request a right of way from their neighbor's property in exchange for reasonable compensation. This is known as a "compulsory right of way" and is an indispensable right to protect the economic value of the property.

Strategic Approach to Conflict Resolution

In property law disputes arising from neighborhood or co-ownership, the court process is often a "long and costly" undertaking. Therefore, our legal system mediation or settlement . Especially in cases of co-ownership dissolution, a sale or division of the property by mutual agreement between the shareholders provides a much higher economic value than a sale (auction) ordered by a court.

The fundamental aim of property law is to protect rights over both movable and immovable property, while also ensuring the "peaceful" use of these rights within society. Protecting property is essential for the economic and social stability of society. In our legal system, where movable property is secured by possession and immovable property by the land registry, knowing and protecting these rights is the most natural responsibility of the owner.

Property disputes are processes that test not only the law but also the "willingness to compromise" of the property owners. This basic legal knowledge you possess regarding your property, belongings, and neighborhood rights will be your strongest defense in potential problems.