Applicable Law Regarding Real Rights Over Immovable Property

Entrance

In private law relationships involving foreign elements, particularly concerning immovable property, the freedom of international private law is significantly restricted. While the Turkish Private International Law system allows for broad scope for the parties' will in contracts, real rights over immovable property : Lex rei sitae, that is, the law of the place where the immovable property is located.

This principle is not merely a technical rule of context; the sovereign authority, public order , and the security of property deeds . The biggest mistake made in practice is that parties assume they can directly impose consequences on immovable properties located in Turkey through choice of law or through foreign court decisions.

This article examines in detail the content of the lex rei sitae principle , its basis in the Turkish Code of Private International Law , the disputes to which it applies , its limits , the Supreme Court's practice , and its practical results

1. What is Lex Rei Sitae?

Lex rei sitae means that in disputes concerning real rights, the law of the country where the immovable property is actually located shall apply

According to this principle:

Ownership of the immovable property,
Acquisition of the same rights,
The era,
Restriction,
In matters of loss , the laws of the country where the immovable property is located shall apply absolutely.

This principle is one of the oldest and most stable principles of private international law.

2. The Legal Basis of Lex Rei Sitae in the Turkish Code of Private International Law

Article 21 of the Private International Law Act No. 5718 provides for an explicit connecting rule with regard to real rights:

"Real rights over movable and immovable property are subject to the law of the place where the property is located."

In conjunction with this provision:

A choice of law is not possible
The most rigorous relationship test is not applied
The public order debate takes a backseat.

The location of the property is the sole and definitive connecting point.

3. The Concept and Scope of Real Rights

a) What is a Real Right?

Real rights directly on property . The main real rights concerning immovable property are as follows:

Ownership,
Easement rights,
Pledge (mortgage),
Right of superficies,
Right of way,
Usufruct and habitation rights.

All these rights are subject to the principle of lex rei sitae.

b) Distinction Between Real Rights and Personal Rights

A point that is often confused in practice is the difference between real rights and personal (relative) rights .

For example:

Real estate sales contract → Creates personal rights
Registration in the land registry → Creates a real right

A sales contract may be subject to foreign law; however, the registration process and its consequencesare subject to the law of the country where the immovable property is located.

4. If the property is in Turkey: Absolute Turkish Law applies

With regard to a property located within the borders of Türkiye:

The nationality of the parties,
The place where the contract was made,
Payment location,
The choice of law
doesn't matter.

The Turkish Civil Code and Turkish land registry law shall apply absolutely.

In this context:

Foreign court decisions,
Foreign notary transactions,
Foreign property records do not have direct legal effect on real estate in Turkey .

5. Foreign Court Decisions and Lex Rei Sitae

a) Limits of Recognition and Enforcement

A foreign court:

You can decide who owns a property
However, this decision directly create a change in ownership .

Because:

With regard to real rights concerning immovable properties in Türkiye,
The enforcement of foreign court judgments public order and exclusive jurisdiction .

The Court of Cassation has consistently held the following position on this matter:

"real rights relating to immovable properties located in Turkey are under the exclusive jurisdiction of Turkish courts
.

b) Foreign Divorce Decrees and Real Estate

Foreign divorce decrees:

It affects personal circumstances
It can become valid in Türkiye through recognition.

However:

The division of real estate in Türkiye,
Establishing real rights in a land registry is only possible through lawsuits heard in Turkish courts

6. The Relationship Between Lex Rei Sitae and Public Order

Lex rei sitae is, in most cases, already a reflection of public order. Therefore:

The possibility of foreign law being applied has been eliminated from the outset.
A public order exception is rarely needed.

For example:

A system under foreign law where real estate ownership is acquired without registration,
It is not applicable because it is contrary to the land registry regime in Türkiye.

7. Borderline Cases and Application Examples

Example 1:

A sales contract between two German citizens, concluded in Germany, concerns an apartment in Istanbul.
➡️ The sales contract may be subject to German law; registration and ownership are subject to Turkish law.

Example 2:

The transfer of the property to the heirs has been decided by a foreign court. ➡️ In Turkey, a decision from a Turkish court is required for the transfer of title

8. Court of Cassation Practice

The Supreme Court of Turkey, in its ruling on the principle of lex rei sitae:

Absolute,
Without exception,
in conjunction with public order
.

The decisions particularly emphasize the following:

Security of the land registry,
Türkiye's sovereign authority,
The principle of exclusive jurisdiction.

Therefore, lex rei sitae is one of the areas with the lowest risk of distortion, provided it is applied correctly.

9. Common Mistakes in Practice

The belief that real property rights can be determined by choice of law
The idea that foreign court decisions can be directly enforced in land registry records
No distinction should be made between personal rights and real rights
Confusing recognition/enforcement with transfer of ownership
Ignoring the exclusive right

Conclusion

Lex rei sitaeis arguably one of the strictest connecting rules in international private law. This applies when it comes to real rights over immovable property:

The will of the party,
The closest relationship,
Foreign court decisions
take a backseat.

#MÖHUK, real rights, Public Order, lex rei sitae, Land Registry Law, real rights in immovable property, applicable law, immovable property with foreign elements

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