Buying and Selling Property: Legal Risks and How to Avoid Them

This is the English version of a Turkish article. The original, with further detail and linked petition templates, is at Gayrimenkul Alım Satımında Hukuki Riskler ve Korunma Yolları.

Under Turkish law ownership of immovable property passes only by official registration at the land registry (Article 706 of the Civil Code). A handwritten or oral agreement transfers nothing. Everything that protects a buyer therefore happens before that registration: the register search, the zoning enquiry and the check on encumbrances.

Buying property is for many people the largest investment of their lives. Purchases made without adequate enquiry into the land register, zoning status, attachments and mortgages can lead to problems that are difficult to put right.

The market is very active, yet buyers frequently transact without examining the register and the official documents properly. That lack of care opens the door to buying a property carrying a mortgage, acquiring land subject to a building prohibition, or taking over property that is in dispute.

What to Do Before Buying

Before making any payment or signing any agreement, take these steps carefully:

• Search the land register. Obtain a current entry from the land registry office or through the e-government portal, and examine the ownership, the shares and the date of registration.
• Check for mortgages, attachments and annotations. Establish whether the property carries a mortgage, an attachment, a usufruct, a right of habitation or an annotation of a right of pre-emption. These burdens may pass to the new owner with the property.
• Enquire into the zoning status. Obtain a zoning status certificate from the municipality or the village administration. If the land is registered as agricultural land or forest, building may be prohibited — which can defeat the whole purpose of the purchase.
• Check the building and occupancy permits. Establish whether existing structures have a valid building permit and an occupancy permit. Buildings without them may face demolition orders.
• Verify the seller's identity. Confirm that the seller really is the registered owner by comparing the identity document with the register. Where the sale is by an attorney, the validity and the scope of the power of attorney must also be checked.
• Check the cadastral measurements. For fields, plots and gardens, confirm against a plan obtained from the cadastral office that the area actually in use corresponds to the boundaries shown in the register.

The Promise-to-Sell Agreement

Where the transfer will not take place immediately, a promise-to-sell agreement can be used to secure the parties' mutual obligations and the delivery date.

• Formal requirement. The agreement must be drawn up by a notary in the form of a notarial deed; an ordinary written agreement is not sufficient.
• Annotation on the register. Once made before a notary, the agreement may be annotated on the land register. The annotation strengthens the contractual right against third parties and in practice prevents the seller from selling to someone else.
• Consumer protection in off-plan sales. Where housing is sold before construction, consumer protection legislation provides additional safeguards, including required contractual terms and a right of cancellation.
• Agreement is not delivery. A promise-to-sell agreement does not transfer ownership; it gives a right to require the transfer. Ownership passes only by the official transaction at the land registry.

How Does the Transfer Take Place?

Ownership of immovable property is transferred by official registration at the land registry. There is no exception to this rule; a transfer by any other route is legally ineffective.

• The official transaction. Both parties, or their authorised representatives, must attend the land registry office and sign before the registrar.
• Transfer by attorney. Either party may appoint a representative by a power of attorney drawn up before a notary. Make sure it is current and that its scope covers the transfer; a revoked or expired power of attorney is ineffective.
• The risk in deposits. Sums paid as a deposit should not be handed over in cash before an agreement is signed. If payment is to be made, it should be recorded in a notarial agreement and a receipt obtained.
• Fees and taxes. Land registry fees and revolving-fund charges are paid on transfer. Depending on the property, capital gains tax and a property tax declaration may also arise.

Defective Property and Latent Defects

Defects that appear after the property is taken over, and that were not disclosed beforehand, can give rise to disputes.

• The seller's duty to disclose. The seller must inform the buyer of known defects. Defects deliberately concealed give rise to liability in damages.
• The period for a latent defect claim. A claim based on a latent defect in immovable property must be brought within 5 years of delivery (Article 231 of the Code of Obligations). This is a forfeiture period and cannot be extended.
• Notice of the defect. The buyer must notify the seller within a reasonable time of discovering the defect. Late notice can cost rights.
• The buyer's elective remedies. Faced with a defective property the buyer may rescind the contract, seek a reduction in the price, or require repair free of charge. Damages may also be claimed.

“Agreements for the transfer of ownership of immovable property are not valid unless made in official form.”

— Turkish Civil Code, Article 706

That basic rule settles the point: a sale of immovable property by oral agreement or by an ordinary written document is not legally valid. Every sale must be carried out in the required official form, before a notary or at the land registry.

Common Mistakes

• Paying the whole price before registration of the transfer
• Relying on the seller's oral assurances and not making a written agreement
• Failing to check annotations and restrictions on the register
• Buying land or a field without enquiring into the zoning status
• Failing to check the scope and currency of a power of attorney in a sale by attorney
• Proceeding on the assumption that a permit can be obtained later for an unauthorised building