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Litigation for the dissolution/elimination of joint ownership of properties, also called partition lawsuits (‘izale-i suyu davalari’ in Turkish), are type of cases that arise as a result of the will of any joint owner to dissolve the co-ownership status over a movable or immovable property subject to co-ownership or joint ownership without the need for a justified reason. This type of lawsuits are one of the most common in Turkey in line with the ownership shares within the scope of inheritance law. When the joint-owners “owners” wish to dissolve the existing joint ownership and actually share the property; they may choose to share it consensually by executing an agreement among themselves. However, if the agreement option is not possible, each of the owners has the right to ask for the division of such assets according to Article 698/1 of the Turkish Civil Code (TMK) No. 4721. Such right for seeking dissolution of joint ownership is inherent within the share and there is no threshold for ownership ratio in effect. Therefore, any shareholder in such sense could make the filing.
When any owner or multiple owners come together and exercise this right, it impacts all the others as well. Each of the owners could file the lawsuit for the elimination of the joint ownership separately or more than one owner may come together and file this case against others. If the cases are filed separately, they are merged into one and the case is heard by the same Court. The partition lawsuit is filed against all joint-owners who are partners in the movable or immovable property. All owners shall become part of the lawsuit and the owners other than the plaintiff (filing owner/s) become defendants in a technical sense. If the plaintiff is a minor, is limited to use powers or is a legal person, a lawsuit could be filed through the legal representatives of the plaintiff (parents, guardians, company managers, etc.). In the event that one of the joint-owner dies before or after the trial, regardless of the plaintiff or defendant, it is possible to conclude the case by adding the heirs as parties.
Types of Division in Dissolution of Joint Ownership Cases
a) Dissolution of joint ownership through partition in kind
In line with the request for partition/division, the parties can reach an agreement on how they will divide the said property and convey their demands on this matter to the Court. In this case, the judge may execute the partition in accordance with the contract. The joint ownership terminated in this way becomes the subject of consensual sharing. According to Article 699/1 of the TCC, the parties may make this distribution in the form of partition in kind or by selling the property through bargaining or auctioning and dividing the proceeds. The distribution made in this way can be realized within the scope of “partition” or “sharing agreement”. The validity conditions of this partition or sharing agreement will also vary depending on whether the property subject to joint ownership is movable or immovable.
However, if an agreement cannot be reached, a lawsuit shall be filed at the request of one of the joint owners in order for the partition to be carried out by the Court. Distribution in this way is called judicial sharing. If possible, the judge decides to divide the property by partition in kind; if the values of the divided parts do not coincide, monetary values can be added to the missing value. It should be noted that unless there is an agreement between the joint owners, the judge cannot decide on the distribution of the immovables to the owners by partition in kind ex officio.
It is sufficient for only one of the parties to make a request for partition in kind and if one of the parties raises such inquiry, the judge should first investigate whether there are the conditions for partition in kind. At this point, the issues that need to be investigated by the Court are stated in the decision of the 14th Civil Chamber of the Court of Cassation dated October 28, 2019 and numbered 2016/1022 E. and 2019/7149. Pursuant to the decision; in order for the Court to decide for partition in kind, it is necessary to investigate whether the division is possible according to the nature of the immovable, the surface area, the number of shares and joint owners, and the nature of the agricultural lands and the zoning legislation. If the immovable property (real estate) will lose value significantly at the end of the partition, the decision of partition in kind cannot be made. Pursuant to the decision of the 6th Civil Chamber of theCourt of Cassation dated April 5, 2010, numbered 2009/11775 E. and 2010/3836; it has also been stated that some part of the immovable property cannot be left with joint shares unless the stakeholder’s consent.
b) Dissolution of joint ownership through sale
Dissolution through sale could occur if the property cannot physically (or equitably) be divided among the joint-owners or if the division request is not deemed appropriate to the situation and conditions, and especially if there is no possibility of dividing the shared goods without a significant depreciation. In these cases, the sale of the property by auction is applied. The sale of the immovable is rendered through the sales administration ‘satis memurlugu’ or the enforcement offices of the Courts, not actually by the Court hearing the actual dispute. Pursuant to Article 699/3 of the TCC, the decision to make the sale by auction among the joint owners is subject to the unanimous agreement of all parties. If the sale is made, the resulting price is divided among the joint-owners. In the event that it is decided to eliminate the joint ownership by sale, the sales transactions are carried out in accordance with the provisions of the Enforcement and Bankruptcy Law No. 2004 (EBL) published in the Official Gazette on June 19, 1932, with the number 2128. Additionally, in accordance with the decision of the 14th Civil Chamber of the Court of Cassation dated June 27, 2012, case file 2013/4662 E. -2013/7052 K. “In case there are records such as seizure annotation, mortgage record and redemption annotation in favor of a third party in the land registry of the immovable property requested to be shared, the sale of the immovable must be done together with the impositions”.
Movable properties are sold by auction as a rule within two (2) months after the file is sent to the sales administration following the request for sale in accordance with Article 112 of the EBL. However, in some cases, it is also possible to make the sale by negotiation, these cases are listed separately in Article 119 of the EBL.
The sale of the immovables is conducted by auction by the enforcement office within three (3) months from the request for sale. Unlike movables, it is not possible to sell immovable properties by negotiation.
Although the general rule in terms of both movables and immovables is an auction, it can also be decided to make a ‘closed sale’ (direct sale) if all joint-owners consent.
Law No. 7343 on the Amendments to the Enforcement and Bankruptcy Law and Certain Laws (Amendment Law) was published in the Official Gazette No.31675 on November 30, 2021. With Law No. 7343, some fundamental changes took place in many provisions of the EBL. In the previous version of the Law, the preparatory procedures for the auction were involving auction declaration and the auction specification processes. In addition, for immovables there were two more stages named; list of liabilities and appraisal processes. However, as a result of the amendments made in Article 114 titled Pre-auction Measures, the preparation procedures for the auction of the distrained goods and the tendering procedure are rearranged in accordance with electronic sales procedure. Considering this information, Article 114 of EBL should be taken into account at the point of the preparation process for the auction in terms of both movables and immovables.
The day and period for the first and second auctions must be announced at least fifteen (15) days before the start of the auction. The announcement to be made on the electronic sales portal is kept open to access until the end. The start date of the second auction is determined not to exceed one (1) month from the end date of the first auction. The form of the announcement and whether it shall be made in the newspaper is determined by the enforcement office, considering what is most appropriate for the interests of the relevant parties. In the event that the announcement is decided to be made with a newspaper published at the domestic level, this announcement is made with one of the newspapers with a circulation of more than fifty thousand (50,000) at the date of the request for sale and distributed at the domestic level.
What needs to be included in the announcement to be made on the electronic sales portal
- The type, nature, important qualifications, appraisal value, location, and visuals, if any, and other information included in the bidding announcement
- In order to participate in the auction, it is obligatory to deposit the security amounting to ten percent (10%) of the value of the seizure into the bank account of the enforcement office, if the security deposit is in cash, it has to be deposited until 23:30 at the latest on the day before the end of the auction period.
- In the event that collateral to be shown is in form of a letter of guarantee, those who shall participate in the auction are obliged to submit the final and indefinite letter of guarantee (‘kesin ve suresiz banka teminat mektubu’) to the enforcement office that makes the sale, in an amount that shall meet ten percent (10%) of the value of the confiscated subject to sale, until the end of the business day before the end of the auction period at the latest.
- Those who shall participate in the auction through the representative are obliged to apply to the enforcement office that made the sale until the end of the business day before the end of the auction period at the latest
- In cases where joint-owned sale (‘hisseli satis’) is possible, it is obligatory for joint buyers who want to purchase the property subject to auction with certain shares to apply to the enforcement office that makes the sale until the end of the business day before the end of the auction period at the latest.
- If the creditor who requests the sale and wants to participate in the auction and the joint-owner who wants to participate in the auction in the partition by sale apply to the enforcement office that made the sale until the end of the business day before the end of the auction period at the latest, the amount of the receivable or the amount the partnership share meets the guarantee shall not be taken from them.
- That the goods shall be tendered to the highest bidder if the conditions are fulfilled.
- The bids to be submitted on the electronic sales portal must exceed fifty percent (50%) of the appraised value of the seized property and the sum of the receivables secured by that property, whichever is higher than the receivables of the seller, whichever is greater, and in addition to this amount, the costs of realization and distribution.
- In the event that the tenderer submits the highest bid and fails to deposit the tender price within the period, the guarantee received shall not be returned and shall be paid to the right holders for their receivables to be deducted primarily from the sales costs.
- In cases where the tender cannot be held because the minimum tender price is not offered or the tender is canceled because the highest bidder does not deposit the tender price, the second auction shall be held again within the framework of the conditions in the first auction.
- The tenderer has to pay the entire sales price to the enforcement offices account within seven days at the latest from the date of announcement of the minutes regarding the realization of the tender on the electronic sales portal.
- Participants of the sale shall be deemed to have seen the specification and accepted its content with all its annexes.
- Upon the finalization of the tender, the registration and delivery procedures of the goods will be conducted.
Upon finalization of the tender, the delivery of the movable to the tenderer or the registration of the goods registered in the registry on behalf of the tenderer shall be conducted after the stamp duty and the value added tax have been deposited. In terms of immovables, in the announcement of the sales to be made on the electronic sales portal; it is stated that the mortgagee creditors and other interested parties, if any, must notify their rights on the immovable within fifteen days (15) with their documents and their claims regarding interest and expenses, otherwise, unless their rights are fixed with the land registry, they shall be excluded from the sharing of the sales price and these issues shall also apply to the holders of easement rights. A copy of the announcement is sent to the debtor and creditor and to the addresses of the persons registered in the land registry of the immovable if there are addresses registered in the land registry. If the address is not registered in the title deed, the addresses in the address registration system, if any, shall be considered notification addresses. Apart from these, no address verification is made, the sales announcement made in the newspaper or electronic sales portal replaces the notification.
The announcements to be made with the newspaper have not passed with the sales specification attachment are sufficient to write the electronic sales portal, which includes the type, nature, important qualities, appraised value and the location, the day and period on which the first and second auction shall be held and the information about the increase. Except for the announcements required to be made by the enforcement office, the parties may announce the announcement text in the electronic sales portal by any means they wish, at their own expense. However, this announcement of a private nature does not affect the official treatment. If there is a difference between the announced texts, the electronic portal version should be taken into consideration. However, mistakes in the text announced in the newspaper or electronic sales portal are corrected only in the electronic sales portal without changing the tender date. This correction announcement shall not be notified to the relevant persons separately.
It is necessary to mention some issues in addition to the movable regulations brought in terms of immovables. First of all, it should be noted that the enforcement office determines the most favorable conditions for the bidding conditions taking into account the customs of the place where the immovable is located. Article 125 of EBL states that; in the bidding specification, it is stated which expenses shall belong to the customer and the servitude rights, immovable liabilities, mortgages, mortgaged bonds, annuity bonds on the immovable are sold together and the debtor’s personal debts provided with this immovable shall also be transferred to the buyer.
List of obligations
As mentioned above, the list of obligations and the appraisal is only the transactions applied in terms of immovables. Article 128 of EBL indicates that; the sales administrative makes a list of all the obligations appearing in the land registry on the immovable before starting the sale. The sale to be made is made together with all the obligations and transferred to the buyer.
Another issue that should be mentioned in terms of immovables is the appraisal of the immovable by the sales officers. In the appreciation of the immovable, the effect of the obligations on the immovable value is also considered. A process called inspection (viewing) is made by the sales administrative. The same-named procedures are also conducted during the partition case. However, these processes are qualitatively different from each other. By the viewing made during the lawsuit, it is only to examine whether the partition in kind is possible or not; and the viewing which is made by sales administrative is just to make an appraisal.
After the value has been appraised and an expert report has been prepared, the expert report shall be submitted to the parties. Within seven (7) days after such notification, joint owners could appeal the report by applying to the Civil Court of Peace and as a result of the exercise of such right, an Objection to Appraisal lawsuit shall be filed before the Civil Court of Peace. After such procedure, the Court may re-visit the property and the decision of the Court as a result of these final reviews and valuation reports will then be final. A reappraisal cannot be requested within the next two (2) years following finalization of the first appraisal However, revaluation may be requested due to natural disasters or extraordinary changes in the zoning situation.
Before the amendments made by Law No. 7343, the tender of movables and immovables were subject to different regulations. However, with the new regulation, the tender of both movable and immovable properties are to be conducted in accordance with Article 115 of the EBL. Such regulations are the following.
The first and second tenders are initiated by the bailiff on the date and time determined in the announcement, starting at over fifty percent (50%) of the appraised value of the seized property. If the conditions are met, the property shall be tendered to the highest bidder. Insofar, the auction price must exceed fifty percent (50%) of the appraised value of the confiscated property and the sum of the receivables secured by that property, which has priority over the receivables of the seller, whichever is greater, as well as the costs of realization and distribution in addition to this amount.
If the conditions are met on the day and hour when the auction ends, the properties are tendered to the highest bidder and the ownership of the properties passes to the tenderer. In the event that the tenderer submits the highest bid and fails to deposit the tender price within the period, the guarantee received shall not be returned and shall be paid to the right holders in consideration of their receivables to be deducted from the sales costs.
The bailiff issues an auction result report on the first business day after the auction ends and announces the information in this report on the sales portal on the same day. In the report; the date and time of the completion of the tender, if the conditions are met, the highest bidder and the tendered properties, the tender price has to be deposited into the account of the execution office within seven days from the announcement of the minute, and if the conditions are not met, the reason for the failure of the tender should be stated.
The sales request cannot be withdrawn after the auction starts. If the debt is fully paid by the end of the bidding period, the sale is stopped. The bailiff shall record that the tender could not be made or canceled in cases where the minimum tender price was not offered, the highest bidder did not deposit the tender price, or the debt was paid before the end of the bidding period. In cases where the minimum bid price is not offered or the highest bidder does not deposit the bid price, the second auction starts on the date previously announced within the framework of the conditions in the first auction.
If no buyer appears to bid in the auction, or the conditions written in this regulation are not fulfilled, the creditor may request that the sales day be given within the sales request period remaining from the previous sales request. The sales request period stops with the sales request and this period starts to run from the date of the report stating that the tender could not be made or canceled.
If the bailiff determines from the sales portal records that the bidding could not be made within the last ten minutes of the auction due to technical reasons arising from the electronic sales portal on the first business day after the auction is over, he/she decides to extend the auction period by one day. In the decision, the bailiff shows the dates and times when the auction shall start and end, and also announces all these issues immediately on the sales portal. In this case, the start date of the auction cannot exceed three days from the date of the decision to extend the auction period. During this period, new bidders may participate in the auction by depositing the guarantee, as the previous highest bidder shall be bound by its bid. The tenderer is obliged to pay the sales price in cash within seven days from the announcement of the auction result report, even if the termination of the tender is requested. In addition to this information, it should be noted that gold and silver goods cannot be sold at a lower price than their mined value.
c) Dissolution of joint ownership through establishment of condominium ownership
Another method envisaged for dissolution of joint ownership is the conversion of joint ownership into a condominium. However, some conditions needs to be met. The first is that the immovable property shall be suitable for conversion into a condominium in accordance with Article 10 of the Turkish Condominium Law No. 634. Second condition is that one of the joint owners shall make a claim and finally the immoveable shall have more than one independent unit. If there is a difference between the independent parts of the property in terms of price, equalization could be made by monetary adjustments. The owner(s) requesting the conversion into a condominium shall make a request based on the documents specified in Article 12 of Law No. 634. These documents are:
a) The layout plan which shows the location of buildings, occupancy certificate, and an architectural project which has been made by the designer architect of the project, which has been signed by the owner or all shareholders of main real estate, and which has been approved by the relevant public authorities to clearly show the exterior walls and interior divisions of building or buildings, measures of independent divisions, built on spaces and common places, building plot shares of independent divisions proportional with the values calculated according to their locations and areas, and building construction area of independent divisions.
b) A management plan which has been prepared according to the usage style of independent divisions, characteristics of buildings if there are multiple structures, and provisions of Article 28, and which has been signed by the owner or owners who constitute the association of apartment ownership
If there is a discrepancy between the joint owners regarding the allocation of the independent parts, their actual (current physical) use is considered; however, the presence of the consent of other joint owners is required in order to carry out the allocation according to the actual use. If such allocation cannot be made, a draw (lottery pick) can be applied. When the listed documents in Article 12 of Law No. 634 with the Court decision are presented to the land registrar, condominium ownership is established.
d) Other circumstances
If there are complementary parts such as buildings, facilities, trees, etc. on the immovable subject to the partition lawsuits and if a joint decision cannot be made between the owners about who owns them, first this dispute should be resolved by filing a separate case. The lawsuit to be filed in this regard is called the declaratory lawsuit of the belonging of the innovation. It should also be noted that most plants are components of a part of the land. However, if there is a dispute about the ownership of the parts such as buildings, trees, etc. on the immovable and if one or some of the owners claim rights to them then this issue should be resolved first.
The dispute regarding the ownership of the entity cannot be resolved by the Civil Court of Peace (CCP). As it is clearly stated in the decision of the 14th Civil Chamber of the Court of Cassation dated September 23, 2020 and numbered 2020/2736 E. and 2020/5367; to resolve the dispute, a suitable period of time should be given to the joint owner(s) to file a lawsuit in the Civil Court of First Instance (CCFI) where the subject matter of the lawsuit is located. In accordance with the decision of the 14th Civil Chamber of the Court of Cassation dated January 27, 2021, case file 2017/899 E. -2021/398; in accordance with Article 165 of the Code of Civil Procedure, if a lawsuit is filed in the CCFI within the appropriate time period provided by the CCP on the dispute of ownership, the lawsuit filed for the case of dissolution shall wait for the outcome of this new case. If no new lawsuit is filed within this period, the dissolution case proceeds as if there is no dispute on the matter of ownership in that regard.
Statute of limitations, competent Court and dropping of lawsuit
There is no statute of limitations period for partition lawsuits. These lawsuits can be opened at any time and by any joint owner. Waiver (by one of the plaintiff co-owners) to drop the case will have no immediate consequence since all parties will need to agree on dropping the lawsuit once its filed. If the partition in kind is possible the ownerships distributed will become sole ownerships, if not possible, the value created after sale through auction will be shared among the joint owners. According to Article 4/1-f of the Code of Civil Procedure (CCP) No. 6100, the Courts in charge of partition lawsuits are the Civil Courts of Peace for movable or immovable properties, regardless of the value of the subject property. Pursuant to Article 6 of the CCP, the Court having general territorial jurisdiction in partition lawsuits is the Court at the domicile of the defendant when the action is filed. However, it should be noted that if the subject of the lawsuit is an immovable property, in accordance with Article 12 of the CCP, the competent Court is the Court of Peace at the place where the immovable is located.
Circumstances where partition/dissolution cannot be asked for
The right of joint owners to request partition lawsuits is not an unlimited right and is subject to certain limitations. The said limitations may be legal limitations (rises by the Law), or they may arise from the agreements made between the joint owners themselves.
Joint ownership allocated to a permanent purpose
According to Article 698/1 of the TCC; ‘Each of the joint owners may request the division of the goods unless there is an obligation to maintain the joint ownership due to a legal transaction or because the shared goods are reserved for a permanent purpose.’ Although there is no clear definition of what shall be understood from permanent purpose, the example is generally ‘the presence of things such as common walls, fences, bars, trees, common courtyards, wells that limit the two immovable properties.’. At such examples, the joint property serves other properties of the joint owners.
Limitation by contract
Another limitation arising from the law is also regulated in the TCC. In practice, while it is referred to as a ‘elimination of maintenance agreement’, it is also referred to as a contract for the continuation of shared ownership in the law. If the continuation of the partnership has been committed with this contract, it cannot be dissolved within that period. According to Article 698/2 of the TCC; ‘The right to request sharing could be limited to a maximum of ten years with a legal transaction.’ According to this provision, joint owners may limit their right to request to share/divide up to a maximum of ten (10) years with a contract to be concluded among themselves. However, it is accepted that partition may still be requested if there are important situations or reasons that make the continuation of the relationship unbearable despite such a contract. On the other hand, where the right to share is limited for more than ten (10) years, are not deemed completely invalid but are considered to have been made for ten (10) years. After ten (10) years, no regulation in our legislation prevents joint owners from signing another contract again for another ten (10) years. In addition, Article 698/2 of the TCC, states that; contracts for the continuation of joint ownership in immovable properties are dependent on the official form (in writing and notarized) and annotations can be recorded at the title registry.
Improper time for dissolution/partition
As a rule, in joint ownership, each owner may always request that his share be given to him by sharing the jointly owned property. This is based on the principle that no one can be forced to continue the shared state of ownership. However, in Article 698/3 of the TCC, a separate provision is included regarding the inability to file the case of elimination of joint ownership at the improper time. In accordance with this provision, times when sharing is harmful to joint owners are considered improper times. Improper times are determined according to the honesty rule in Article 2 of the TCC at the judicial discretion considering the characteristics of the concrete event. The partitioning request to be made at an improper time is rejected. It is not possible to waive the right to rely on the claim that the time is improper before the lawsuit is filed.
Limitation due to condominium ownership
Pursuant to Article 7 of Law No.634; dissolution for the jointly owned real estate subject to condominium ownership or construction servitude (common areas), cannot be inquired for. However, independent sections could be the subject of lawsuits and proceedings.
Agricultural lands subject to inheritance
Agricultural lands are subject to special regulations introduced to the Law on the Amendment of the Law on Soil Preservation and Land Utilization No. 6537 published in the Official Gazette No. 29001 on May 15, 2014, and the Law on Soil Preservation and Land Utilization No. 5403 published in the Official Gazette No. 25880 on July 19, 2005. According to Article 8/B of Law No. 5403; transfer of ownership as a whole is essential in agricultural lands which is subject to inheritance. If the heirs can reach an agreement, the transfer of ownership (as a whole) has to be completed within one (1) year. If no agreement is reached between the heirs, each of the heirs may file a lawsuit before the competent Civil Court of Peace.
Agreement among the heirs
The matters that the heirs may decide on regarding the ownership of the agricultural land and the agricultural land with sufficient income are as follows:
- Transfer to one heir or if it meets the agricultural land sizes with sufficient income for more than one heir,
- Transfer to a family property partnership or a profit-sharing family property partnership to be established in accordance with Article 373 of the TCC and its continuation,
- Transfer of all heirs to a limited liability company to be established in accordance with the provisions of the Turkish Commercial Code, of which they are shareholders at the rate of their inheritance share,
- Transfer of ownership to third parties.
The right of each of the heirs to file a lawsuit
The heirs may not always come to an agreement among themselves. If no agreement is reached among the heirs, each one of the heirs may file a lawsuit before the competent Civil Court of Peace. In the event that a lawsuit is filed, the Court shall decide on the ownership of agricultural land or agricultural land with sufficient income according to:
- Transfer to the competent heir, determined by taking into account his abilities and situations, based on the agricultural income value, in case there is more than one competent heir, firstly to the heir who earns his living from these agricultural lands with sufficient income, in the absence of this, to the heir who offers the highest price among these heirs, if there is no qualified heir, the judge decides to transfer it to the heir who offers the highest price among the heirs.
- If there is more than one competent heir and these heirs have non-inherited agricultural lands, the judge may decide to transfer the agricultural lands to these heirs without seeking a sufficient income size in order to bring the existing lands of these heirs to a sufficient income size or to contribute to the economic operation of these lands.
- If no heir is requesting the transfer of the agricultural land with sufficient income subject to the inheritance, the judge decides on its sale. The income obtained as a result of the sale to be made in this way is distributed to the heirs in proportion to their shares.
If agricultural lands with sufficient income may be divided into more than one agricultural land size that provides sufficient income, the Court may decide to transfer the ownership of each of them separately to the heirs within the framework of the above-mentioned provisions.
The competent heir may also request the ownership of the tools, equipment, and animals required for these lands be transferred over the real values, together with the transfer of the agricultural land. Although the concept of competent heir is not specified in the Law, it is defined as ‘heir or heirs determined by the Court in accordance with the criteria determined by the provisions of this Regulation, taking into account their abilities’ at Article 4/1-c titled Definitions of the Regulation on the Transfer of Agricultural Lands published on December 31, 2014, with the number 29222. Article 10 of the Regulation No. 29222 notes a quite complex system for such criteria to determine the competent heir. Heir and heirs who have fifty (50) points or more as a result of the calculations made by considering the criteria according to the provisions of this Article shall be considered as competent heirs. The criteria are noted as the following:
- Twenty (20) points for those who earn their living from inherited agricultural lands,
- Ten (10) points for those who have no non-agricultural income,
- Ten (10) points for those whose spouses are actively engaged in agricultural activities,
- Ten points (10) for those who have the professional knowledge and skills to process agricultural lands,
- Five (5) points for those residing within the boundaries of the district where the inherited lands are located for up to five (5) years, ten (10) points for those residing for five (5) years or more,
- Ten (10) points for those who do not have any social security,
- Five (5) points for those who have agricultural insurance under the Social Security Institution (SGK),
- Five (5) points for those who are registered in the current registration systems of the Ministry for up to five (5) years, ten (10) points for those who have five (5) years or more,
- Two (2) points for those who are registered to agricultural organizations for up to five (5) years, five (5) points for those who have five (5) years or more,
- Five (5) points for those who own agricultural tools and equipment.
- Five (5) points to women.
- Qualifications of the competent heir are determined by the regulation to be issued by the Ministry.
In addition to the point system mentioned above, it should be noted that; considering the result related to the transfer, if the necessary transactions could not be completed within one (1) year by agreement or if the heirs do not resort to filing a lawsuit, then the provisions in Article 8/Ç of the Law No. 5403 will become applicable.
According to the provision of this Article, in case the ownership of agricultural land with sufficient income has not been transferred within one (1) year, it shall be notified to the Ministry (Ministry of Agriculture and Forestry) and the Ministry may offer three (3) months to the heirs for the implementation of the provisions of this Law. In the event that there is no transfer at the end of the given period, the Ministry may file a lawsuit before the relevant Civil Court of Peace, ex officio or upon notification, for the transfer of these agricultural land to the requesting competent heir or, if there is no competent heir, to the willing heir who has submitted the highest bid, and otherwise the land could be sold to third parties by action of the Ministry. According to Law 8/D/1 of Law No. 5403 and Article 12/1 of the Regulation on the Transfer of Ownership of Agricultural Lands: ‘The Court gives a period of up to six (6) months to the heir, whom the transfer of ownership finds appropriate, to deposit the value of the inheritance shares of the other heirs in the Court depository. If requested by the heir, an additional period of up to six (6) months may be granted. If the amount is not stored within the specified periods and no other heir is willing to handle the transfer, the Court can decide to sell the agricultural land or agricultural land with sufficient income through an auction.’ The same law also notes that loans could be provided to the competent or willing heirs for such deposits to be made to the Court by the Ministry. However, the loan amount cannot exceed the sum of the shares of the other heirs under any circumstance.
Increase in value
The issue of increase in value of agricultural lands subject to inheritance is discussed detailed in Article 11 of the Regulation on the Transfer of Agricultural Lands No. 29222, published on December 31, 2014. This article is to protect the other heirs that transfer their rights to one competent heir or a third party due to such agricultural land restrictions mentioned above and for the cases when such agricultural land is no longer used for the deemed purposes but is revalued for other purposes (such as construction of residence or commercial buildings etc.). The provisions of the Article state the following:
(1) In case of an increase in the value of all or some of these lands due to non-agricultural use within twenty years from the transfer of the ownership of agricultural land with sufficient income to one of the heirs; The monetary value of the land on the date of transfer is recalculated according to the date on which the non-agricultural use permit is granted. The difference between the found value and the new value of the land due to non-agricultural use is paid to the other heirs by the heir who takes over the ownership of the land in proportion to their shares.
(2) In the event that agricultural lands are transferred to one of the heirs based on the agricultural income value with a court decision in accordance with the provisions of the Law, an annotation is placed in the declarations section of the land registry that other heirs shall be entitled to the increase in value that shall occur as a result of the use permit for non-agricultural purposes within twenty years from the transfer process.
(3) In the event that the annotated agricultural lands are sold for agricultural use before the expiry of the twenty-year annotation period, the annotation is removed if the consent of the other heirs is obtained; If the consent is not obtained, the sale may be made with annotation. Third parties who purchase the immovable with annotation are liable to other heirs for the increase in value that shall occur due to non-agricultural use within the same period.
(4) In case a non-agricultural use permit is granted to the agricultural lands within the scope of this article within the annotation period, the permission shall be notified to the other heirs by the Ministry within fifteen days. It is obligatory for the heirs to make a request for the increase in value within sixty days from the date of notification. Unless the difference calculated according to the first paragraph is paid to the heirs, the annotation on the agricultural land is not removed.
(5) If an agreement is reached between the heirs after the increase in value due to non-agricultural use, the annotation in the declarations section of the deed is removed with the approval of the heirs. In the event that an agreement cannot be reached between the heirs, the value increases difference to be paid to the other heirs is determined by the Magistrate using the Producer Price Index (PPI) determined by the Turkish Statistical Institute.
(6) If the Magistrate decides that the inherited agricultural lands are to be sold by auction or the heirs agree in accordance with the provisions of 9/2, a twenty-year annotation shall not be placed on the value increase that may occur due to non-agricultural use in the said lands.
(7) The annotation is deemed to have been lifted after the twenty-year annotation period is completed.
In case one of the partners sells its share to a third party to form a family property partnership or a profit-sharing family property partnership, the other partners have the right of pre-emption. In cases where the preemption right is used, the Turkish Civil Code will be in effect. Due to the reference to the Turkish Civil Code, the pre-emption right cannot be used in sales organized via forced auction.
Testamentary dispositions (wills)
The rights of the competent heir, who wishes to transfer the ownership of agricultural land with sufficient income cannot be abolished by testamentary disposition. Rights of debarment from inheritance, disinheritance, and renunciation of the inheritance (that can be claimed by other heirs) are reserved. In case there are transfer conditions for more than one eligible heir, the heir to be transferred could be determined by testamentary disposition. In case of objection to such determined heir through testament, the competent heir can be determined by the Court.