Real Estate Sales Contract

Real estate, also referred to as "immovable property," refers to goods regulated under Article 704 of the Turkish Civil Code No. 4721. According to Article 704 of the Turkish Civil Code, immovable properties are:

1. Land: Can be defined as any piece of land. This can include areas such as fields, forests, or coastlines, encompassing soil, water, and natural features.
2. Independent and temporary rights recorded on separate pages in the land registry: This can be defined as the right to use, benefit from, or utilize a property for a specific period of time for a predetermined purpose. For example, a person may obtain a temporary right to build a house on a plot of land.
3. Independent units registered in the condominium registry: This refers to a space, such as an apartment or office, located within a building. These units are defined separately from other units in the building and may or may not be sold on their own.

Real estate sales contracts are agreements that regulate the sale of real estate and define the rights and obligations of the parties. Through this contract, the seller transfers ownership of all or part of the real estate to the buyer, and the buyer pays the purchase price. Real estate sales contracts are regulated in the Turkish Code of Obligations and may contain different terms depending on the nature of the real estate being sold.

Real estate sales contracts are agreements between a seller and a buyer covering the sale of a property. This contract states that the seller will sell the property to the buyer, and the buyer agrees to purchase it. Real estate sales contracts create a legal obligation and are signed by both the seller and the buyer. The contract includes the seller's obligation to deliver the property and the buyer's obligation to make the payment. The contract is subject to formal requirements and imposes a full obligation between the seller and the buyer.

In the Turkish legal system, freedom of form is generally applicable to contracts. This means that contracts are not required to be in writing, and it is sufficient for them to be explicitly stated. However, certain specific types of contracts must follow the forms determined by law. One of these is the formal requirement for real estate sales contracts regulated in our law. Since this formal requirement is a condition of validity, the parties must comply with it. It is important to emphasize that the purchase and sale of immovable property must be made in the presence of a notary public. The purpose of this requirement is to ensure the security and transparency of the agreement between the parties. Agreements made in the presence of a notary public provide the parties with ease in terms of the burden of proof under the Code of Civil Procedure and also allow them to express their will clearly and without any coercion. In addition, having the contract made in the presence of a notary public protects the parties from making hasty decisions and encourages them to think carefully.

If the formal requirements for the sale of immovable property are not met, an "off-site sale" may occur. If a sales contract that does not comply with the formal requirements is made between the parties, this contract will not be considered valid, and the transfer of ownership will not take place. Even if the right of possession is transferred as a result of the off-site sale, if the registration of the immovable property has not been completed, the ownership of the immovable property legally remains with the seller.

Real estate sales contracts are drawn up by land registry officials according to the land registry law. However, with the new regulations and the increasingly common practice, it is also possible to have this contract drawn up through a notary public. The purchase and sale price is one of the essential elements of a real estate sales contract. The parties must have agreed on the price and included it in the contract. A real estate sales contract is a contract reflecting the intentions of the parties, and the signatures of the parties are required for the sale transaction to be completed. The contract is drawn up by authorized officials, and the parties can also obtain and read the contract if they wish. However, for the sale transaction to be legally valid, the contract must be signed and registered in the presence of a notary public. This is important for the sale transaction to become legally binding. After the real estate sales contract is signed, the real estate must be registered in the name of the buyer. The right of ownership is established upon registration of the real estate in the buyer's name. Therefore, after the real estate sales contract is signed between the parties, the buyer acquires the right of ownership through registration in their name.

Certain situations may arise that prevent the sale from being registered in the land registry:

1. Third-party rights registered in the land registry: If a third party has rights registered in the land registry regarding a property, the sale cannot be made without that person's consent.
2. Unpaid taxes and debts: If there are unpaid taxes and debts on the property, the sale cannot be finalized until these debts are paid.
3. Legal restrictions: If there are legal restrictions on the property (e.g., mortgage, lien, etc.), the sale cannot be registered in the land registry until these restrictions are removed.
4. Restrictions imposed by the land registry office: The land registry office may impose restrictions on real estate to prevent situations that are not in accordance with the land registry. Sales cannot be completed until these restrictions are lifted.
5. Verification of ownership rights in the land registry: If verification of ownership rights in the land registry is necessary (for example, in cases where ownership rights need to be acquired through inheritance), the sale cannot be completed in the land registry.

In practice, Article 1023 of the Turkish Civil Code (Protection of reliance on the land registry) may come into play. Article 1023 is a provision directed at a third party acquiring ownership or another real right (i.e., the person to whom the ownership or other right will be registered in the land registry). This provision states that the acquisition of ownership or another right in the land registry will be valid provided that the third party is acting in good faith. For example, if a person wants to register an ownership right in the land registry, the registration will be valid provided that the person registering the ownership right is acting in good faith (i.e., even if the information regarding the right holder or the subject and scope of the right does not reflect the truth). This applies to all types of registrations made in the land registry.

For a third party to benefit from the protection of Article 1023, they must act in good faith. Therefore, if a third party was aware of a prior dispute regarding the ownership of the immovable property, they cannot be considered to be acting in good faith and cannot benefit from the protection of Article 1023. This shows that the third party must exercise caution in the process of acquiring ownership rights and must act cautiously if they were aware of any prior dispute regarding ownership rights.

Finally, if the registration process was carried out in the presence of a notary and damages arose due to the notary's fault, we can pursue legal action against the notary. Notaries are liable to individuals who have suffered damages as a result of their actions. Therefore, any damage caused by a notary's "failure to perform," "erroneous performance," or "incomplete performance" can be the subject of a lawsuit for material and moral damages. According to Article 1007 of the Turkish Civil Code, the state can also be held liable for all damages arising from the maintenance of the land registry. For the state to be liable, there must be actual damage. If there is no damage, there is no liability.

For example, if a notary public makes incomplete or incorrect legal procedures while preparing a real estate sales contract, they are liable for any damages that may arise from the sale. If the State pays for such damages, the State has recourse against the notary public who prepared the contract and is entitled to compensation. This underlines the importance of notaries being careful in fulfilling their obligations. Damages can also arise from the mistakes of land registry officials. Land registry officials perform various duties related to land registry transactions, and they may make mistakes that cause damage during these transactions. In such cases, a complaint or lawsuit can be filed regarding the damage caused by the land registry officials.