Buying, Selling and Mortgaging Real Estate in Turkish Law

Buying, Selling and Mortgaging Real Estate in Turkish Law

BUYING, SELLING AND MORTGAGING REAL ESTATE IN TURKISH LAW

In Turkish Law, the conditions required for a legal transfer of real estate are

1) Registration in the land registry, and

2) A valid legal reason for the said registration.

Registration is made upon the written request for registration from a person who is authorized to dispose it, in other words, its owner. In the absence of a written request for registration (as an example, the parties might have signed an unofficial document for sale instead of an official sale contract), absence of authority to dispose the real estate with respect to the person who requests registration ( restricted persons, a person who is not the owner e.g.) or absence of a valid legal reason for the transfer of the real estate (the invalidity of the sale contract) the real estate cannot be transferred.

In the event that the transfer of real estate is registered despite the absence of one or more of the aforementioned conditions, the said registration is called unlawful registration. Unlawful registration is a registration that contradicts the actual state of rights. In this event one can file a lawsuit called the assignment of the land registry ledger and request that the records in the registry are corrected. This lawsuit may be filed by the person whose rights have been violated as a result of the unlawful registration.

As per the principle of publicity, due to the fact that all concerned parties are entitled to examine the land registry it is not possible to avoid liability by claiming innocence or ignorance of a record in the land registry. In the event of double registration, meaning duplicate records for the same real estate, one may not claim to have acted in good faith due to the reason that one cannot claim ignorance of the records in the land registry as per the principle of publicity.

The state has no-fault liability for the record-keeping of the land registries. The state’s said liability is a tort liability and therefore rules for tort liability apply. In order to invoke the state’s liability for a mistake in the registry, all of the conditions below have to be met:

1) An injury that cannot be compensated via the assignment of the land registry ledger must have occurred as a result of the mistake in the record-keeping of the land registry.

2) The record-keeping of the land registry must have been done unlawfully.

3) The unlawful record-keeping must be the proximate cause of the injury.

 

Real estate mortgage, on the other hand, guarantees receivables. As per the principle of publicity, mortgage is created with a registration in the land registry, it is valid as long as the registration remains and it is revoked when the record is deleted (Turkish Civil Code art. 856 and 858). However, there are exceptions to this rule such as inheritance and court orders.

 

In recent years, due to the significant increase in foreign investments and touristic visits in Turkey and especially in Turkey’s touristic capital Antalya a huge activity is being observed in Antalya’s real estate market. Foreigners are buying, selling and mortgaging summer houses in Antalya.

However, given the fact that the only body authorized to carry out real estate transactions is the land registry, foreign nationals who do not have knowledge on Turkish Law make several types of mistakes when buying and selling real estate in Turkey. The consequences of these mistakes include not being able to transfer the real estate, not being able to register the real estate in the land registry, making payments to people who are not authorized to sell the real estate and even in some fraud cases.

To prevent all these risks involved in the real estate purchases and sales and to securely buy, sell and mortgage houses, it is strongly recommended that you consult with a reliable Antalya lawyer.