The answer to this question is one of the most frequently asked matters. Under Turkish law, the sale through the courts of land in which you hold a share is governed by Articles 698–699 of the Turkish Civil Code (TMK); Articles 4, 12, 316 and 322/2 of the Code of Civil Procedure (HMK); and Article 18/B of the Mediation Act no. 6325 (HUAK). On land with more than one co-owner, a single co-owner may take the property to sale through the courts without the consent of the other co-owners. This is a very common practice for land on which no agreement can be reached as to partition or sale. This action is called the Action for the Dissolution of Joint Ownership (İzale-i Şuyu).
Each co-owner may request the division of the property (TMK art. 698). Division takes the form either of partition in kind or of the sale of the property and the distribution of its price; where the co-owners cannot agree on the form of division, the judge chooses partition in kind and, where this is not possible, the route of sale; differences in value may be equalised by a payment (TMK art. 699). Moreover, division may not be requested at an inopportune time.The competent court under HMK art. 4 is the Civil Court of Peace; jurisdiction, under HMK art. 12, lies with the court of the place where the immovable property is situated and is exclusive.If sale is ordered, under HMK art. 322/2 the sale is carried out in accordance with the provisions of the Enforcement and Bankruptcy Act, through a sales office appointed by the court. In an action for the dissolution of joint ownership, mediation is a mandatory procedural precondition.
For immovable property on which there is a building, where the conditions are met the court may rule that condominium ownership (kat mülkiyeti) be established; where an independent unit can be allocated to each co-owner, allocation is made by lot or according to actual use, and differences are equalised by a payment. Where the conditions are not met, resolution through condominium ownership is not possible. For agricultural land, the district directorate of agriculture may be consulted and its opinion obtained.
What should you do if there is a house or a tree on the land that belongs to you?
This matter is referred to as muhdesat (structures or plantings made on the land). If there is a house that you built, you have the right to request a determination that the house belongs to you and of its value. Where another person declares that the house belongs to them, this creates a conflict. Where such a conflict exists, an action for a declaratory judgment on the ownership of the muhdesat must be brought so that the conflict is resolved.
Can land subject to an attachment be sold?
The existence of an attachment does not prevent the sale. It is a matter to be taken into account in the distribution of the sale price.
A zoning plan will shortly cover the land. Does this delay the sale?
Yes. You may raise an objection on the ground of an inopportune time. If there is a matter concerning an increase in value, you must submit the relevant letters from the municipality and the official institutions.
If you have a request for information or services concerning actions for the dissolution of joint ownership, you may contact the Şükrü Köse Law Office at [email protected] or on +90 538 317 68 48.
