The Openness of the Land Registry and the Right to Obtain Information
Although the principle of the openness of the land registry means that everyone may examine the register, certain limitations exist in practice. Under article 1020 of the Turkish Civil Code, in order for a person to examine land registry information they must “make it credible that they have an interest”. With the Right to Information Act no. 4982, however, this process has become easier and citizens’ access to information concerning themselves has been made faster. Even so, where it is sought to examine land registry information belonging to a third party, observing the balance between article 1020/II of the Turkish Civil Code and the Right to Information Act is important in order to eliminate the risk of unlawful access to data.
Analysis of the Annotations and Restrictions on the Property
When examining the land registry record, looking only at the name of the owner is not enough. The “Declarations” and “Easement Rights” columns relating to the property are the places a lawyer must examine most carefully. In particular, under the 2021 amendment to article 126 of the Enforcement and Bankruptcy Act, mortgage creditors and other interested parties are required to notify their rights at the stage of the sale announcement; otherwise those rights may be excluded from the distribution of the sale price. For this reason, any restriction appearing in the land register before the purchase, such as an attachment, a mortgage or a family residence annotation, directly affects the legal value of the property.
The Position as to Condominium Ownership and Condominium Easement
If the place being bought is an independent unit, an examination within the framework of the Condominium Ownership Act (KMK) is unavoidable. Article 10 of the KMK provides that condominium ownership arises by official deed and registration. Under article 12 of the KMK, the building’s conformity with its architectural project and the management plan are the most critical documents to be checked at the land registry directorate. It is also worth recalling that, under provisional article 1 of the KMK, in buildings that have obtained an occupancy permit but have not yet passed to condominium ownership, the transition to condominium ownership is possible ex officio upon the application of one of the co-owners.
Cadastral Boundaries and the Reality of Ownership
One of the greatest disappointments is that the surface area written in the title deed does not match actual use. In one of its judgments, the European Court of Human Rights (ECtHR) shows clearly how errors in cadastral measurements constituted an interference with the applicant’s right to property. Similarly, the lengthy proceedings that begin when a title is registered in the name of the Treasury following cadastral work have caused serious harm in the context of the “right to a fair trial”. For this reason, carrying out an on-site examination before the purchase, with an up-to-date setting-out sketch or cadastral plan extract, will prevent actions for the cancellation of the title deed and re-registration that might arise later.
The Risk of the Right of Pre-emption
In co-ownership in shares, the statutory right of pre-emption is a powerful instrument used to prevent third parties from entering the co-ownership. Before buying the property, analysing the position as to co-ownership in shares and whether the other co-owners will exercise this right is vital for the sustainability of the investment.
Important Reminder: This blog post is for information purposes and does not have the character of legal advice. Property purchase and sale processes are transactions shaped by a large number of statutory provisions and current case law; they leave little margin for error and require a professional approach. Having the legal position of the property examined by means of a “Risk Analysis Report” is the safest route for protecting yourself from a possible action for the cancellation of the title deed or the risk of losing ownership.
You may reach us at any time to secure the legal safety of your transactions and to obtain a detailed “legal due diligence report” on the process, and receive professional advisory support.
