This is the English version of a Turkish article. The original, with further detail and linked petition templates, is at Önalım (Şufa) Hakkı: Hisseli Taşınmazda Paydaşın Önceliği.
The right of pre-emption allows the other co-owners of property held in shares to buy a share on the same terms where one of them sells it to a third party (Article 732 of the Civil Code). The periods are strict: three months from notification of the sale through a notary, and in any event two years from the sale. There is no right of pre-emption in jointly owned property.
You hold a share in a property and another co-owner has sold their share to a stranger. Can you do anything about it?
Article 732 gives the co-owners a right of pre-emption. This article explains how it is exercised and the critical time limits.
When Does the Right Arise?
Article 732: where a co-owner sells their share in immovable property, wholly or in part, to a third party, the other co-owners may exercise the right of pre-emption.
Three elements are required:
- the property must be held in ownership in shares
- a co-owner must sell their share
- the buyer must be a third party
These matter. There is no right of pre-emption in joint ownership. Nor does it arise, as a rule, on transfers other than sale — gift, exchange, a contract of maintenance until death, or a sale in enforcement proceedings.
Nor does it arise where the share is sold to another co-owner, because the buyer is not a third party.
For that reason sales are often dressed up in practice as gifts or exchanges. The response is to allege simulation and try to prove that the real transaction was a sale.
What Are the Time Limits?
Article 733/3: the right lapses three months after the sale is notified to the person entitled, and in any event two years after the sale.
These are forfeiture periods: they cannot be interrupted and the court applies them of its own motion.
How notification is made (Article 733/2): the sale is notified to the other co-owners by the buyer or the seller through a notary.
That produces an important distinction in practice: if no notarial notification is made, the three-month period does not run. Learning of the sale by other means does not start it.
The two-year period runs in every case, however: two years after the sale the right lapses even if no notification was ever made.
Article 733/1 adds that a waiver of the right of pre-emption must be made in official form and annotated on the land register. Waiving the right in respect of a particular sale is subject to written form and may be done before or after the sale.
| Matter | Rule |
|---|---|
| Which form of ownership | Ownership in shares (not joint ownership) |
| Who may exercise it | The other co-owners |
| On which transfers it arises | Sale, and transfers equivalent to a sale |
| Gift and exchange | As a rule it does not arise |
| Period where notification was made | 3 months from the notarial notification |
| Period where none was made | 2 years from the sale |
| The action | Against the buyer, in the civil court of first instance where the property is |
| Depositing the price | Compulsory, within the period the court sets |
Overstating the price on the register is a way of defeating pre-emption in practice; proving the real price falls on the claimant.
How Is the Action Brought?
The right is exercised by bringing an action against the buyer, in the civil court of first instance at the place where the property is situated.
The critical feature is payment: under Article 734 the person exercising the right must pay the sale price and the buyer's share of the land registry costs in cash, within the period the judge sets.
The court sets a period for depositing that sum. If it is not deposited in time the action is dismissed. This is the commonest way these cases are lost.
Before bringing the action, therefore, make sure the money is available.
Ask also for an annotation on the land register by way of interim measure; otherwise the buyer may transfer the share to someone else.
If the action succeeds, the court orders the share to be registered in the name of the person exercising the right.
What If the Price Is Overstated?
The commonest defensive tactic is to record on the register a price higher than what was actually paid, in order to deter the co-owner.
The person exercising the right may then contend that the real price was lower and allege simulation.
What can be produced: documents showing comparable values, a request for a site inspection and expert examination, enquiries into the buyer's means, and bank records.
Proving it is difficult and lengthens the case. In most files the price shown on the register is therefore deposited and the case is pursued.
The opposite also happens: understating the price, which works against the buyer and in favour of the person exercising the right.
How Can Pre-emption Be Avoided Lawfully?
Where the co-owners trust one another and do not want the risk, the legitimate solution is a waiver — made in official form and annotated on the land register, or, for a particular sale, in writing.
Dressing a sale up as a gift or an exchange is not a solution: if simulation is proved, the transaction is treated as the sale it really was and pre-emption applies to it.
The commonest reason these actions fail is not the merits but the deposit: the price and the buyer's registry costs must be paid in cash within the period the court sets. And ask for an annotation on the register when you file, or the buyer may transfer the share on.