METHODS OF TRANSFERRING POSSESSION

Possession arises when a person has actual control over an object. In legal terminology, "possession" refers to the power to dispose of a property without being its owner. Possession differs from ownership; the possessor can be the owner of the property, or even if not the owner, can establish actual control over it. According to the Turkish Civil Code, possession can be transferred in different ways for movable and immovable property.

 

1. Transfer by Delivery

 

Transfer by delivery, the most common method of transferring possession, occurs when the property is delivered to a third party. According to the Turkish Civil Code, possession of movable property is transferred by the actual delivery of the property to a third party. Delivery means physically giving the property to the third party who will receive it. This form of transfer grants the recipient full control over the property. For example, possession of a book is transferred when the previous possessor gives the book to the new possessor.

Remote delivery is a method of transferring possession where, instead of the goods being delivered directly, the goods or the means of controlling them come under the control of the third party acquiring possession. An example is when a farmer agrees to buy wheat from a warehouse near his field, and instead of the goods being delivered directly, the location of the warehouse is stated.

Short-term delivery, although not regulated in the Turkish Civil Code, is a delivery method used in practice. In this method, the reason and type of possession of the person holding the property are changed. An example of this is when a person who has been renting an item purchases it from the owner through an agreement during this period.

 

2. Transfer of Possession

 

The transfer of possession is the act of a person in indirect possession transferring their possession to another person. In this case, the consent of the person actually holding the property is not required, but notification may be necessary. For example, if the ownership of a property changes while it is in the possession of a tenant, the former owner transfers their indirect possession to the new owner. This transfer is usually carried out through a legal agreement and does not require a physical change of hands. For example, the possession of goods in a warehouse can be transferred by notifying the warehouse operator. In this case, the possession of the goods is transferred legally, not physically.

 

3. Judicial Surrender

 

Delivered by decree is another method of transferring possession without requiring the physical delivery of the goods. Article 979 of the Turkish Civil Code regulates delivered by decree. In this method, an agreement is made between the parties for the transfer of possession of the goods, and based on this agreement, possession is considered legally transferred. This method of transfer is preferred, especially for the transfer of possession of large and difficult-to-transport goods. An example of delivered by decree is a painting purchased at an exhibition that remains there throughout the exhibition period despite the transfer of possession.

 

 4.Sales with Reservation of Title

 

Sales with retention of title refer to a special type of sale concerning the transfer of possession of the goods. They stipulate that possession of the goods can be transferred to the buyer, but ownership rights remain with the seller. In this case, the buyer has the right to use and dispose of the goods, but ownership rights remain with the seller until a specific condition is met (e.g., payment of all installments). This situation often arises in installment sales.

 

5. Transfer of Possession by Court Order

 

The transfer of possession can, in some cases, be accomplished by a court decision. This is especially true when there is a dispute between the parties or when there are allegations that the transfer of possession was unlawful. When the court issues a decision regarding the transfer of possession, possession is considered transferred once that decision becomes final. A movable property lawsuit can be given as an example of this situation.

 

6. Comprehensive Transfer Procedures: Possession of Immovable Properties

 

The transfer of possession of immovable property requires more complex and lengthy processes than that of movable property. Possession of immovable property is generally transferred through a change in the land registry. However, possession of immovable property can also be transferred physically. For example, possession of a house can be transferred by handing over the keys to the new owner. However, for this transfer to be legally valid, the necessary changes must also be made and registered in the land registry.

 

7. Preservation and Transfer of Possession

 

The Turkish Civil Code contains various provisions regarding the protection of possession. The right of possession can be protected through legal action by the person whose possession has been unlawfully taken. However, it is also possible to protect possession through administrative means. Furthermore, the transfer of possession is also legally protected. In transfers of possession, it is of great importance that the parties act in accordance with their intentions and the provisions of the law.

 

8. Transfer of Possession and Relations with Third Parties

 

The transfer of possession can affect not only the relationship between the parties but also third parties. Especially in the case of immovable property, registering the transfer of possession in the land registry ensures that third parties are aware of the transfer and increases legal certainty. In the case of movable property, even if third parties are not aware of the transfer, the right of possession is transferred from the transferor to the buyer upon the transfer of possession.

 

Conclusion

 

The transfer of possession is regulated in various ways under the Turkish Civil Code. Methods such as delivery, assignment of possession, and judicial delivery are commonly used in the transfer of possession of movable and immovable property. Sales where ownership is retained play a significant role, especially in installment sales. The transfer of possession is carried out based on the will of the parties and is legally protected. It is important for the parties to be aware of their rights and obligations during the transfer of possession to prevent potential disputes. When possession is transferred lawfully, the new possessor establishes actual control over the property and acquires the right to dispose of it.