In all kinds of real estate transactions, the legal unit that deals with the rights of both parties within the framework of the law is called real estate law. Real estate law deals with movables and immovables on which individuals and institutions can establish property rights. With the development of the construction sector in our country, real estate lawsuits have increased considerably. Cases arising from the right of ownership such as expropriation case, deed cancellation and registration case, case for the elimination of partnership, ecrimisil case, case for the prohibition of intervention are directly related to real estate law. In this article, we will help you by giving information about the common types of cases in real estate law, real estate rights, and some contracts related to real estate law.
1- Expropriation Case
Expropriation is the seizure of immovable property in the private property of a person for public benefit by the administration without his/her consent. The administration that performs the expropriation process becomes the rightful owner of immovable property provided that it pays the price. In order for expropriation to be carried out, there must be a public interest. In expropriation transactions, there is a situation of protecting the rights of private property owners. Cases regarding the cancellation of expropriation fall within the jurisdiction of administrative jurisdiction. The competent court in expropriation proceedings is the court where the immovable is located. The request for the suspension and cancellation of the expropriation process is made to the administrative court where the immovable is located, and the requests for price determination and land registry are made to the civil court of first instance where the immovable is located.
2-Title Cancellation and Registration Case
According to Article 704 of the Turkish Civil Code, the acquisition of immovable property is generally realised through registration in the land registry. The land registry cancellation and registration lawsuit is a type of lawsuit filed in order to make the registration and registration transactions in the land registry, which are made against the procedure and law or no longer reflect the real situation, in accordance with the reality. With the deed cancellation and registration lawsuit, it is aimed to cancel the erroneous transaction in the title deed and to register the immovable in the name of the real right holder. The court competent to deal with the deed cancellation and registration case is the court where the immovable is located, and the general duty court is the Civil Courts of First Instance.
3-Suit for Elimination of Partnership (İzale-i Şuyu)
The dissolution of partnership lawsuit, also known as İzale-i Şuyu, is a type of lawsuit that enables the transition to personal ownership by ending the shareholding between the partners in movable or immovable property in shared ownership. The competent court in the case of dissolution of partnership is the court where the immovable property is located. The competent court is the Civil Court of Peace. Elimination of partnership (İzale-i Şuyu) is realised by two methods:
3.1-Removal of the Partnership through Partition
It is the direct division of movable or immovable property into two. The problem of shareholding is eliminated by dividing a land that can be divided into two equal parts.
3.2-Removal of Partnership by Sale
It is the sale of movable or immovable property through execution and the division of the price among the shareholders.
4-Ecrimisil Case (Unfair Occupation Compensation)
Ecrimisil lawsuit; It is a compensation lawsuit that the non-owner owner can file against the non-owner malicious possessor due to unfair use. If we make a simpler definition, the lawsuit filed for compensation to the owner of the immovable property as a result of a person’s unfair use of an immovable property that does not belong entirely to him is called an Ecrimisil lawsuit. The other name of this case is unfair occupation compensation. Ecrimisil can be requested for both movable and immovable property. In order for the owner of movable or immovable property to claim ecrimisil, the person who carried out the unfair occupation on the immovable property in the possession of the right holder must be malicious and the right holder must have suffered damage as a result of unfair occupation. The court in charge in the case of compensation for the compensation of the compensation of the compensation of the compensation of the compensation of the compensation of the compensation is the Civil Court of First Instance, which is the general court of general jurisdiction. The court competent to hear the action for compensation for compensation of exemption is the court of the defendant’s domicile, which is the general competent court.
5- Action for Prevention of Seizure (Prohibition of Intervention)
The action for the prohibition of interference, known as the action for the prevention of seizure, is a lawsuit brought by the legal right holder against persons who interfere with the powers arising from this right by a wrongful act. The wrongful interference in question may take place in the form of unlawful use, occupation and leasing of an immovable property, as well as the actual use of a movable property. In the case of prevention of seizure, the competent court is the Civil Court of First Instance and the competent court is the court where the immovable property is located.
6-Defective Property Case
The type of lawsuit filed for the correction of title deed records allegedly made in violation of the law is called defective real estate lawsuit. The defect in question can take many forms. Consumer rights in case of defective housing are as follows:
- The right to terminate the contract including the return of the price
- Return and delivery of the defective dwelling and replacement with another dwelling
- Discounting and refunding the sales price at the rate of the defect
- Elimination of the problem by repairing the defects free of charge
7- -What is a Right of Way (Construction Right)?
Right of superstructure, also known as construction right, is an easement right in favour of a third party, which authorises the owner of an immovable to build a structure under or above the land or to maintain an existing structure. The right of superstructure can be established as a personal easement or as an easement dependent on property. The owner of the right of superstructure (the holder of the easement right) gains the right of ownership over the construction on the land. The right of superstructure can only be established on immovable property. The ownership of the land on which the superstructure right is established remains with the owner, but the immovable property built on the land belongs to the owner of the superstructure right. The right of superstructure is regulated in Articles 726, 826 and 836 of the Turkish Civil Code (TCC).
7.1 – How long is the duration of the right of override?
There is no lower limit for the duration of the right of superstructure; however, easement rights, which are regulated for at least 30 years, are considered as independent and registered as an independent right in the land registry. However, the upper limit of this right is specified as 100 years.
8-What is the Right of Residence (Right of Succour)?
The right to reside, also known as the right to reside, gives the authority to benefit from a building suitable for residence or a part of it as a residence. The right to reside cannot be transferred to another person and does not pass to heirs. The right of residence can only be established on real estates suitable for residence. For example, the right of residence cannot be mentioned on movables or rights such as usufruct right.
9-What is a Lease Agreement?
One of the most common types of contracts in daily life is the lease agreement. According to the Turkish Code of Obligations, the lease agreement is a contract in which the lessor undertakes to leave the use of a thing or to benefit from it together with the use to the lessee, and the lessee undertakes to pay the agreed rental price in return.
9.1-Elements of the Lease Agreement
A lease agreement is established with the existence of the three elements mentioned below. With the establishment of the lease agreement, some rights and obligations of the lessee and the lessor arise
9.1.a – Agreement of the Parties
The first condition for the formation of a lease agreement is the mutual agreement of the parties.
9.1.b-Transfer of Use of Something
With the establishment of the lease agreement, the lessor grants the right to use the goods or rights that are the subject of the contract to the other party for a temporary period. The right to use transferred to the lessee is limited to the lease period and the lessee is obliged to return the leased property to the lessor upon expiry of the lease agreement.
9.1.c-Rent Fee
The lessee is obliged to pay a sum of money to the lessor in return for using the leased property. The establishment of the lease agreement is not subject to any form requirement. However, in terms of proof, it would be more appropriate to make the lease agreement in writing.
10-Building Contract in Return for Floors (Land Share)
A construction contract in return for flats, also known as a construction contract in return for land share, is a bilateral contract in which a landowner transfers a certain share of the land to the contractor, and the contractor delivers a certain number of independent sections built on the land in return to the landowner. The construction contract in return for land share is not a type of contract directly regulated in the Turkish Code of Obligations. This contract is a mixed contract, which is a combination of the elements of the contract of sale of immovable property and the contract of work. In the construction in return for flat contract, the parties have some obligations towards each other.
10.1-What are the obligations of the contractor in the construction contract in return for flats?
- Obligation to make an independent section
- Obligation to construct the independent section in person
- Obligation to deliver the independent section
- Obligation to obtain a building licence and a residence permit
- Obligation to establish condominium easement and condominium ownership
10.2-What are the Obligations of the Landowner in a Flat-for-Floor Construction Contract?
The obligations of the land owner in the construction contract in return for flats are to deliver the land to the contractor.