UNVEILING THE PAST: EXPLORING THE TITLE SEARCH PROCESS IN TURKEY’S REAL ESTATE MARKET

CAN A PROPERTY WITH AN ENCUMBRANCE BE SOLD?

Having annotations on property is important during the sale or transfer of a property because it contains important information about the rights and obligations related to the property. This information helps to determine the actual value of the property and to ensure a smooth sale or transfer process with a title search.

An annotation on property can have negative consequences for the owner or buyer of the property. Therefore, during the sale or purchase of a property with an annotation, the annotations on property should be carefully examined in detail. This title search is important for determining the rights and obligations and deed restrictions related to the property.

Furthermore, the annotations on property are not always up to date. It is important to identify this situation during the sale of a property with a title search. For example, mortgage annotations on property should be removed after the debt is paid. Otherwise, the owner of the property may encounter problems when trying to sell the property or conduct other transactions.

CAN DEED RESTRICTIONS ON PROPERTY BE REMOVED?

Annotations on property can be permanent, temporary, or explanatory depending on their type. In some cases, annotations on property may need to be removed or changed. In such cases, the official procedures should be followed by applying to the land registry office with a property record search.

For example, a lease agreement as a type of encumbrances on real estate that has been annotated in the title deed can be removed either automatically after the end of the lease term or at the request of the parties. However, declarations such as changes in the property type or the management plan can only be removed by a court or administrative decision. Annotations related to easements or zoning regulations are explanatory in nature and cannot be removed upon request of the parties.

Changes to encumbrances on real estate and annotations on property are made upon submission of the necessary documents and completion of official procedures with a property record search. Removing the annotations that can be removed during the sale of a property with annotations will be in the best interest of the buyer.

WHAT IS A FAMILY HOME ANNOTATION

A family home annotation is a type of encumbrances on real estate that enables a residential property to be registered as a family home. The family home annotation prevents one spouse from transferring or mortgaging their property rights without the consent of the other spouse in properties designated by married couples as their family home. The family home annotations on property are regulated in the Turkish Civil Code and was introduced to protect married couples and maintain family unity.

The family home annotation is achieved by registering the residential property designated as the family home in the land registry. The family home annotation can be made by both spouses applying to the land registry office or can be registered as an annotation in the land registry through the application of one of the spouses. The family home annotation prevents one spouse from selling or mortgaging the property without the consent of the other spouse, thereby aiming to protect the family unity.

THE IMPORTANCE OF TITLE SEARCH BEFORE PURCHASING A PROPERTY

When it comes to purchasing a property, one of the most critical steps in the process is conducting a thorough title search. A title search is the process of examining the historical records of a property to ensure that the person selling it has the legal right to do so and that there are no claims or liens against the property.

Title searches are essential for several reasons. First, they help to identify any potential issues with the property that could make it difficult or impossible to sell or transfer ownership. For example, if there is a lien on the property, the seller may not have the legal right to sell it until the lien is paid off. Similarly, if there are any claims against the property, such as a disputed boundary line or an easement that was not properly recorded, the property record search will reveal these issues and allow the buyer to address them before completing the purchase.

Second, title searches can also help to protect buyers from fraud. Unfortunately, there are many cases where people try to sell properties that they do not actually own or have the legal right to sell. By conducting a title search, buyers can confirm that the seller is the rightful owner of the property and that there are no other claims or liens against it with a title search process.

Third, title searches can also help to ensure that buyers are getting what they paid for. For example, if a buyer thinks they are purchasing a property with a specific boundary line or easement, but the title search reveals that these features do not actually exist, the buyer can renegotiate the purchase price or choose not to go through with the sale.

In addition to these benefits, title searches are also typically required by lenders before they will approve a mortgage. This is because lenders want to ensure that the property they are financing is a secure investment and that there are no issues that could affect its value or ownership.

Overall, the importance of conducting a title search when purchasing a property cannot be overstated. Property records search is a critical step that can help to protect buyers from fraud, identify potential issues with the property, and ensure that buyers are getting what they paid for. While title search may add some additional time and cost to the purchasing process, the peace of mind that comes with knowing that the property is legally and financially sound is well worth the investment.

EXAMPLES OF THE MOST COMMON ENCUMBRANCES ON REAL ESTATE AND ANNOTATIONS ON PROPERTY

Examples of the most common annotations on property and declarations encountered in land registry records are shared below, along with explanations to serve as guidance. However, it should be emphasized that each property is unique, and annotations on property and encumbrances on real estate should be evaluated by an expert lawyer based on the specific features and characteristics of the property. Selling a property with deed restrictions without obtaining legal support can lead to problems that may result in the loss of the property for the buyer.

• OWNERSHIP DISPUTE ANNOTATION

If there are deed restrictions on the property subject to a mortgage indicating a “dispute regarding ownership,” it is not recommended to purchase the property as the owners of the property and the area and share ratios of the mortgaged property may change at the end of the case.

•  SALE RESTRICTION ANNOTATION (150/C)

The “sale restriction annotation” on a property is placed to inform third parties that the property is in the process of being sold through foreclosure after an execution proceeding has been completed.

• “PERMANENT USE RIGHT ANNOTATION” FOR THE PROPERTY TO BE MORTGAGED

Since the permanent use right belongs to the property, there is no problem in purchasing the property.

•  “PERMANENT USE RIGHT ANNOTATION” THAT GRANTS USE RIGHTS TO A THIRD PARTY FOR A PART OF THE PROPERTY TO BE MORTGAGED

The permanent use right annotation is a type of encumbrances on real estate that grants the right to use a portion of the property to a third party (individual or public) other than the owner of the property. After determining whether the annotation causes a decrease in the value or saleability of the property, the purchase of the property should be evaluated.

• RIGHT OF PASSAGE

The right of passage is a right granted to a property that does not have sufficient access to a public road to reach the public road by passing through the boundaries of neighboring properties. There is no problem in purchasing the property if there is a right of passage annotations on property.

• RESTRICTION OF USE RIGHT FOR THE TREASURY

The use right is a transaction that requires consent to use or benefit from a property and is established as a real right for the benefit of another property or person. If the use right is established for a property owned by the Treasury, this use right is an “use right,” and the right to benefit from the area subject to this right belongs to the Treasury. Depending on the area covered by this right, a title search should be made on whether it affects the value of the property negatively.

• MUNICIPALITY PARTICIPATION FEE ANNOTATION

If the expenses determined by the Municipality for roads, sewage, and water facilities related to the property subject to the mortgage are not paid, the “municipality participation fee annotation” is entered into the title deed of the property upon notification by the municipality, and the transfer (intake) of the property is not carried out until the participation fee and interest are paid. When encountering these encumbrances on real estate in title search it should be noted.

• PRE-SALE AGREEMENT

It shows that the property has been promised to be sold to a third party with pre-determined conditions and price. When this type of encumbrances on real estate be seen in property record search it will be a problem for new owner.

• ALLOCATED TO THE PUBLIC”/”ALLOCATED FOR PUBLIC INTEREST” ANNOTATION

If there are annotations on property subject to a mortgage stating that it is “allocated to the public” or “allocated for public interest,” an evaluation should be made on whether the annotation affects the value or saleability of the property. When encountering these deed restrictions in property record search it should be noted.

• EXPROPRIATION ANNOTATIONS ON PROPERTY (ARTICLE 7 OF THE LAW NO. 2942)

Expropriation; It is the unilateral acquisition of real estate, regardless of the owner’s consent, by paying in cash for the administration to include it among public goods or to be allocated to the performance and execution of a public service, as a requirement of public interest and based on public power.

Article 7 of the Expropriation Law provides for the preparation of a scaled plan showing the boundary, surface area and other characteristics of the real estate to be expropriated or on which the right of easement will be established during the formation of the expropriation, and to determine the owners according to the land registry, by searching and documenting their possessions if there is no land registry.

In the aforementioned article, an annotation pertaining to the 7th article is written on the real estate whose expropriation proceedings have begun. In cases where the expropriation procedures are not continued, the annotation must be deleted by the land registry directorate within 6 months, but in practice, the land registry directorates do not automatically (ex officio) delete this annotation. In order to continue the sales transactions, it would be appropriate to ensure that the invalid annotation is deleted by the real estate owner.

• RIGHT OF USAGE

The usufruct right is the right in rem that gives the owner the widest authority after full ownership. Full ownership consists of a combination of dry ownership and usufruct right. In other words, when the right of transfer and assignment and the right of dry ownership, which gives all kinds of savings, and the right of usufruct, which gives the right to use and obtain income, come together, full ownership occurs.

The basis of the right of usufruct is the Civil Code. According to the Property Tax Law, dry ownership covers 1/3 of the real estate, and the usufruct right meets 2/3.

In the event that an real estate with a usufruct right is purchased, the real estate will be sold as liable with the usufruct right in the sale of the real estate through the execution channel and the new owner cannot demand the cancellation of the usufruct right against the owner of the usufruct right. This is a factor that may directly affect the sale of the real estate and decrease its value because of deed restrictions.

• ANNOUNCEMENT THAT THE ENTIRE REAL ESTATE PROPERTY STAYS WITHIN THE LIMIT OF FOREST RESTRICTION OR FOREST CADASTRE

If there is an annotation in the record of the real estate subject to the mortgage that “the real estate is within the forest restriction or forest cadastral border”; Considering that the real estate subject to the mortgage is within the forest limitation/forest cadastre boundary by the administration, a lawsuit for cancellation of title deed will be filed and a request will be made for its registration in the name of the Treasury with forest quality.

• FAMILY HOUSING DEED RESTRICTIONS

If a house with a “Family Residence” annotation is to be purchased, a “consent” must be obtained from the seller’s spouse. When encountering these encumbrances on real estate in title search it should be noted.

• ENCROACHMENT ON NEIGHBORING PARCEL (OVERFLOW CONSTRUCTION) NOTE

In accordance with Article 725 of the Turkish Civil Code, if a part of a building is encroaching onto someone else’s land, and the owner of the building has an easement right over the encroached land, then the encroached property becomes an integral part of their property.

If there is no such easement right, and the affected property owner does not object within fifteen days of becoming aware of the encroachment, and if the circumstances and conditions justify it, the person who built the overflow construction in good faith may request the establishment of an easement right or the transfer of ownership of the encroached land upon payment of a reasonable amount.

According to the court, if the owner of the overflow construction is in good faith, if the parcel can be divided according to the zoning regulations, if the difference between the damage that the landowner would suffer from dividing the parcel and the benefit the overflow construction owner would receive is not excessive, then the owner of the overflow construction can request the registration of the overflowed part with a title deed action by paying an appropriate amount, or to establish an easement right over it.

Depending on the extent of the encroachment onto the adjacent parcel and the size of the affected area, a demolition order may be issued, or the problem may be resolved by paying the value of the encroached land.

• “RIGHT OF EASEMENT” DISCLAIMER

There are rights that allow a third person (personal right) or neighboring real estate (supply right) to benefit from the real estate, and there is no legal obstacle to the sale of an real estate with this annotation. However, it is necessary to evaluate in title search how the collateral quality and selling ability of the real estate that bears this annotation will be affected, taking into account the limits of the right to benefit (the right of easement).

• FOUNDATION COMMENTARY

As can be understood from the regulations in the Foundations Law; Unless the foundation annotation is canceled from the registry by paying the full concession price, the dispositions on the real estate will not be registered by the land registry offices.

In addition, deed restrictions in the registry means that the concession fee has not been paid yet. The concession fee is; It is the price received in exchange for transferring the ownership of some foundation real estates to the mutasarrıfs. In the calculation of the concession price; The sale price is taken as the basis for the dissolution of the partnership or the sale through forced execution, and the expropriation price for expropriations. When encountering these encumbrances on real estate in title search it should be noted.

• “WITHOUT THE PERMISSION OF THE TRANSFEROR ADMINISTRATION, THE TRANSFERRED PROPERTY CANNOT BE USED FOR ANY OTHER PUBLIC PURPOSE, OTHERWISE THE TRANSFEROR ADMINISTRATION TAKES BACK THE REAL ESTATE PROPERTY UNDER ARTICLE 23

Real estate property, resources, or easement rights owned by public legal entities and institutions cannot be expropriated by another public legal entity or institution. However, it is possible for one administration’s property to be transferred to another administration through a different procedure.

The transfer of real estate property owned by one administration to another administration is regulated in Article 30 of Law No. 2942 on Expropriation. The real estate property, resource, or easement right acquired in accordance with the relevant article is considered to have been acquired through expropriation from its owner, and CANNOT BE USED FOR ANY OTHER PUBLIC PURPOSE WITHOUT THE PURPOSE OF THE TRANSFER OR THE PERMISSION OF THE TRANSFEROR ADMINISTRATION.

Otherwise, the transferor administration can take back the real estate property under Article 23. This matter is noted in the annotations section of the land registry.

• COMMENTARY ON “LAW NO. 775 ON THE PROTECTION OF SHANTY AREAS”: THE LEGAL BASIS OF THIS COMMENTARY IS ARTICLE 34 OF LAW NO. 775 ON SHANTY AREAS

The article is titled “PREVENTION OF BEHAVIORS CONTRARY TO ALLOCATION PURPOSES” and reads as follows: “Article 34 – Lands and structures allocated by municipalities in accordance with the provisions of this Law, and the real estate properties arising from the buildings constructed on these lands, shall not, for a period of ten years from the date of allocation:

a) Be transferred or assigned.

b) Be subjected to seizure or other real rights.

c) Constitute a subject matter of a sale contract. d) Be subject to subdivision or sale to remedy possession.

e) Be seized or occupied.

However, subject to the provision of paragraph (e), sales and transactions due to death, retirement, transfer of duty, and mortgage debts owed to the Turkish Real Estate Credit Bank or other institutions providing housing loans are not subject to these restrictions.”

According to this law, the phrase “restricted according to Law No. 775” is added to the title deed of the properties allocated. The meaning of this phrase is that the property cannot be transferred or assigned in any way for a period of ten years from the date of allocation, and no rights, including limited real rights, can be established on the property. When encountering these encumbrances on real estate in title search it should be noted.

• ANNOTATIONS ON MANAGEMENT PLAN AND MANAGEMENT PLAN AMENDMENTS

The management plan outlines the management style, intended use and form of the property, the fees that will be charged by the manager and inspector, and other aspects of management. These annotations on property do not legally prevent the sale of the property and do not negatively impact the saleability of the property. This kind of encumbrances on real estate is common annotations seen in property record search.

• PARKING ANNOTATION

Indicates the existence of a parking lot belonging to the property. These annotations on property does not legally prevent the sale of the property and does not negatively impact the saleability of the property.

• JOINTLY OWNED AREAS

Refers to the allocation of jointly used areas such as social facilities, commercial spaces, swimming pools, tennis courts, and heating centers. This kind of encumbrances on real estate does not legally prevent the sale of the property and does not negatively impact the saleability of the property.

• RENTAL AND EASEMENT RIGHTS GRANTED IN FAVOR OF STATE-OWNED UTILITY COMPANIES

Rental and easement rights established in favor of state-owned utility companies such as TEDAŞ, BEDAŞ, TEK, AYEDAŞ, İSKİ, İETT, İGDAŞ, etc. are generally put in place to ensure the performance of public services provided by these organizations. These annotations on property are not legally prohibitive of the sale of the property.

• RESOURCE RIGHT

An easement right on a resource located on someone else’s land gives the owner of the right only the right to use that resource. The presence of a resource right deed restrictions do not diminish the marketability of the property.

• MILITARY PROHIBITION – MILITARY SECURITY ZONE

These annotations on property are established in order to ensure the security and confidentiality of the boundaries of military facilities and zones that are of vital importance to national defense, and are graded according to the importance of the region.

While these annotations on property do not legally prohibit the sale of property, the one-sided administrative disposal, expropriation, and even demolition of the property without payment is possible. Furthermore, because various restrictions (such as prohibitions/limitations on construction, excavation, and renovation works, sale or lease to foreign nationals or entities) can be imposed on the use of these properties, such annotations can weaken the value of the property. When encountering these encumbrances on real estate in title search it should be noted.

• THE ANNOTATIONS OF “CULTURAL PROPERTY”, “NATURAL PROPERTY”

“Preservation Area”, and “Protected Area” under the Law on Protection of Cultural and Natural Assets are as follows:

“Cultural properties” are all movable and real estate assets on the surface, underground, or underwater that are related to science, culture, religion, and fine arts belonging to prehistoric and historic periods or that have been subject to social life in prehistoric or historic periods and have unique value in terms of science and culture.

“Natural properties” are values found on the surface, underground, or underwater, which belong to geological periods, prehistoric, and historic periods, and are rare or need to be protected due to their features and beauty.

“Sites” are areas that reflect the social, economic, architectural, and similar characteristics of various civilizations from prehistoric times to the present day, and are places where significant historical events have taken place or where cultural assets are densely located, as well as areas that need to be protected due to determined natural features.

“Protection area” is the area that is necessary for the protection of real estate cultural and natural assets or for the effectiveness of their protection within the historical environment.

The real estate properties subject to these annotations on property may be subject to expropriation and should be taken carefully in title search.

• SEIZURE OF PUBLIC RECEIVABLES

If the seizure has been imposed due to public receivables, in accordance with Article 73 of Law No. 6183 on Collection of Public Receivables, the real estate property cannot be transferred or any right in rem can be established on it until the current seizure annotation is removed from the land registry. These transactions can only be made with the consent of the relevant authority that imposed the seizure.

It is not possible for the owner of the real estate property with public seizure to sell it to third parties without the consent of the relevant authority.

• PRECAUTIONARY / PROTECTIVE MEASURE

If the owner’s authority to dispose of the real estate is restricted by this annotation, it is not legally possible to sell it.

Precautionary and/or protective measures that do not restrict the owner’s authority to dispose of the real estate do not prevent the sale legally. However, since they make it disputable who has the right to first obtain the property’s ownership or a receivable from the property’s value, selling the property before removing the annotation is risky.

• MORTGAGE

A mortgage is a notation indicating previously established mortgages on real estate.

The registration of the mortgage in the land registry, as well as its release from the registry, is the responsibility of the creator, and it cannot be said that the mortgage that has not been removed from the registry has ended. Priority of disposal in a mortgaged property belongs to the mortgage holder, and acquiring a mortgaged property is risky.

• LEASE NOTATION

A lease notation is the entry of a lease agreement between the owner and the tenant of an real estate property into the notes column of the land registry (Turkish Civil Code Article 1009). When the tenant’s right to lease is registered in the title deed, even if the property is sold, the new owner does not have the right to demand eviction and binding with these deed restrictions.

• RIGHT OF PRE-EMPTION / REPURCHASE RIGHT / PREFERENCE RIGHT:

a- RIGHT OF REPURCHASE

The right of repurchase is generally the right of a person to retain the option to buy back (repurchase) a real estate property that they have sold under the same conditions as the sale. The right of repurchase is a new right that creates novelty for the beneficiary who sold a real estate property. (Turkish Civil Code Article 736) The beneficiary who has this right can unilaterally reacquire the property sold by submitting their unilateral declaration to the owner within the specified period and paying the designated repurchase price.

If the owner does not transfer the ownership of the property, the right holder may immediately file a lawsuit with the court to request cancellation and registration of the title deed. The registration of the right of repurchase in the land registry for more than 10 years is not possible. However, it is observed that land registry offices do not resolutely revoke expired right of repurchase notations.

If 10 years have passed since the registration of the right of repurchase, it would be appropriate to remove the notation from the property registration and subsequently establish a mortgage on the property. After the right of repurchase and within the notation period, a mortgage established is considered to have legal consequences in accordance with the previous notation, so the beneficiary of the right of repurchase can file a lawsuit for cancellation and registration of the title deed against the owner who does not transfer ownership to them after fulfilling their obligations or tries to transfer ownership with the mortgage.

They can demand that the ownership be transferred to them without a mortgage. A property with a right of repurchase can be sold and mortgaged by the new owner. Regardless of how many times the property changes hands, when the right of repurchase holder exercises their right to repurchase, the property must be returned to the right holder, and any mortgages established after the notation must also be removed, and the property must be registered in the name of the previous owner.

b- RIGHT OF FIRST REFUSAL (PRE-EMPTION RIGHT)

The right of first refusal, also known as pre-emption right, gives the beneficiary of a contract the priority to purchase a property if the owner wishes to sell it within the specified period agreed in the contract. (Article 735 of the Turkish Civil Code)

If the owner sells the property to a third party who accepts the legal consequences of the right of first refusal, the beneficiary of the right can acquire ownership of the property by exercising their pre-emption right within three months of learning about the sale, or in any case, within two years of the sale. When encountering these encumbrances on real estate in title search it should be noted.

• RIGHT OF PURCHASE (OPTION RIGHT)

The option right is an innovative right that enables the beneficiary to unilaterally declare their intention to purchase a property. (Article 213 of the Turkish Code of Obligations and Article 736 of the Turkish Civil Code) The beneficiary of this right can unilaterally purchase the property by submitting their declaration to the owner within the specified period and paying the agreed purchase price.

If the owner does not transfer the property, the beneficiary can file a lawsuit with the court to request immediate cancellation and registration of the title deed. The option contract is prepared by a notary public and is registered in the land registry. It can be asserted against third parties once it is registered.

The right of option does not prevent the transfer of the property or the establishment of any real or personal rights on it, and the consent of the beneficiary of the option right is not required for these transactions. Properties subject to other restrictive encumbrances can also be subject to the option right. The right of option expires when it is exercised or at the request of the beneficiary, but in any case, it expires 10 years after the registration of the encumbrance.

• SEIZURE/PROVISIONAL SEIZURE

Provisional seizure is a lien that grants priority to the creditors to obtain their debt from the proceeds of the sale of the immovable property. This lien does not legally prevent the sale. However, since the right to obtain the debt from the sale proceeds belongs to the seizure creditor, the marketability of the property is low.

It is not advisable to sell the property with these annotations on property without removing the lien. It is important to examine seizures in title search.

• BANKRUPTCY LIEN

Bankruptcy is a compulsory execution method that ensures the satisfaction of all known creditors by converting all seizureable assets of a debtor (bankrupt) into cash through compulsory execution. With the opening of bankruptcy, all seizureable assets of the debtor become part of the bankruptcy estate.

Although the debtor’s property rights continue on the assets that are included in the estate, the authority to dispose of these assets is eliminated with the bankruptcy decision. Therefore, the debtor cannot dispose of movable and immovable properties by sale, exchange, donation, or restrict them with mortgage rights or other encumbrances.

Although the bankruptcy announcement is recorded in the land registry, it is not legally possible to purchase an immovable property on which a measure related to bankruptcy has been taken since the property owner cannot dispose of the property.

• CONCORDAT ENDORSEMENT

Concordat is a liquidation method undertaken by a debtor who has fallen into a state of inability to pay by reaching an agreement with his creditors and with the decision of the court. A debtor who wishes to benefit from the provisions of the Execution and Bankruptcy Law regarding concordat submits a concordat project to the enforcement court.

This period provided with concordat is annotated in the land registry by indicating the date and daily number by the land registry office. Transfer of real estate on which concordat endorsement is made and creation of rights on it are not possible by the owner.

Without the permission of the court, the debtor cannot establish a lien, become a guarantor, partially or completely transfer the fixtures of the immovable and the enterprise, and cannot perform gratuitous transactions.

Otherwise, the transactions performed are invalid. The sale of an immovable property on which a measure is taken due to a concordat endorsement is legally impossible until the court allows it for the reasons explained above.

• VIOLATION OF ZONING LAW CONSTRUCTION NOTATION

A notation regarding a building that violates the provisions of the Zoning Law (Articles 32, 34) (constructed without obtaining a permit or in violation of the permit and its annexes), although not legally preventing the sale, the building constructed without a permit or in violation of the permit may be demolished by the Municipality or the Governorship following the decision of the Municipal Council Provincial Administration Board, and the demolition expenses may be collected from the owner of the building.

• RIGHT OF HABITATION

There is no legal obstacle to the sale of a property with a right of habitation notation recorded in the land registry. However, just like usufruct, the right of habitation is terminated either by cancellation from the land registry (at the request of the right holder for the removal of the right from the land registry) or by the death of the right holder. Therefore, whoever inherits the property subject to the right of habitation is deemed to have accepted the existence and consequences of this right. When encountering these encumbrances on real estate in title search it should be noted.

• FIXTURES

The Civil Code, which came into effect in 1926, states that the person who owns the land also owns the things on it, except for exceptional cases specified. The term “fixtures” refers to structures, trees, and similar assets that belong to someone other than the owner of the real estate that is the subject of the property ownership. This right mentioned here only applies to the fixture or the thing that was erected on it. It does not grant any direct rights to the land it is located on.

According to Articles 722 and following of the Civil Code, if the value of the structure on it is greater than the value of the land and certain conditions such as good faith are met, the transfer of ownership may be demanded; otherwise, the value of the fixture must be paid.

According to Article 19/2 of the Land Registry Law No. 3402, if fixtures (buildings, trees, etc.) belonging to someone else are found on the property during cadastral survey, they are shown in the declaration section of the land registry. When dealing with such a property, it is subject to the existence of this type of notation, and abandoning the registration in the declarations can only be achieved through the request of the right holder or a court decision.

If the right holders who have a fixture registration in their favor do not agree to abandon it, the abandonment of the fixture will be made by court decision.

As movable property, things that are erected (plants that are not suitable for permanent stay or are the product of a certain period of time due to their characteristics) do not become part of the property on which they are located. Therefore, they remain the property of the previous owner before planting, and they can be purchased separately from the land on which they are located.

• RESTRICTION ANNOTATION UNDER THE LAW ON SETTLEMENTS No. 5543

The Law on Settlements No. 5543 regulates the settlement of immigrants, nomads, those whose lands have been expropriated, and settlement works related to the regulation of physical settlement in villages, as well as the conditions and measures to be taken, and the rights and obligations of those who are settled.

According to the law, the governor and district governors are authorized to transfer immovable properties granted under this law. In accordance with the aforementioned law, immovable properties granted cannot be sold, donated, encumbered, or subject to a promise of sale annotation in the land registry, or seized, in any way, before the full amount of the debt is paid from the transfer date. Such properties will be registered in the declaration section of the land registry accordingly.

The transfer and establishment of any property right on these immovable properties cannot be made until the annotation in the land registry is removed. After the fifth year from the transfer date, the statement made in the land registry will be removed for those who have paid the full amount of the debt, and the property will be free of this restriction annotation.

• LAW NO. 3402 ON CADASTRE, ARTICLES 22/1 AND 22/1-A

According to Article 22 of the Cadastre Law, two separate situations can be mentioned: Declaration made based on Article 22/1 of the Cadastre Law and declaration made based on Article 22/1-(a) of the Cadastre Law.

When encountering these encumbrances on real estate in title search, it should be notedAlthough there is no legally impediment to the sale in both cases, it is necessary not to confuse the results of the declarations with each other.

According to Article 22 titled “Places Previously Subjected to Cadastre” of the Cadastre Law; “Places that have previously been subject to identification, registration, or limitation by means of cadastre or land registry cannot be subjected to a new cadastre. If such places are subjected to a second cadastre, the second cadastre will be deemed null and void in all its consequences, and the procedure will be carried out in accordance with Article 1026 of the Turkish Civil Code. If no lawsuit is filed within the prescribed period, the second cadastre will be cancelled ex officio by the land registry directorate. However;

a) In places where technical deficiencies arise from limitation, measurement, drawing, and calculation related to land registry, cadastre, or modification operations, which have lost their implementation status, have become inadequate for technical reasons, are found to be incomplete, or are found to show the boundaries on the ground inaccurately, cadastre maps are reorganized for the purpose of correcting them, and necessary corrections are made in the land registry in places where land registry and cadastre have been carried out,

b) In places where only land survey has been previously conducted or where renewal will be made in accordance with Law No. 2859 on Renewal of Land Registry and Cadastre Sheets, and in places subject to the provisions of Law No. 2981 on Implementation of Illegal Buildings and Settlements, and the Amendment of One Article of Law No. 6785 on Zoning, The first paragraph shall not apply.”

In accordance with this regulation, the annotations and explanations related to the annotations entered in the land registry are as follows.

a- Article 22/1 of the Cadastre Law; If there is a reference on the title deed of the property according to the 1st paragraph of the 22nd article, this reference indicates that the property is subject to the second cadastre, and as a result, it will be concluded that the title deed of the property was formed by an illegal registration.

In the case of places where the second cadastre has been carried out and it is determined that there are (or seem to be) places belonging to different owners, the parties concerned are notified according to Article 1026 of the Turkish Civil Code, and they are given 30 days to file a lawsuit. If no lawsuit is filed within this period, the second cadastre is cancelled ex officio by the land registry office. Therefore, if this annotation exists on the property, it is not suitable for sale.

b- Article 22/1-(a) of the Cadastre Law; (Due to a misreading of the law’s systematics, this provision is also seen in the land registry records as a record of 22/2 or 22/2-a.) It is stated that the arrangement in Article 22/1-(a) of the Cadastre Law is an exception to the application described in the previous paragraph (in Article 22/1), and therefore, it is not subject to the application explained above.

The Cadastre Directorate states that in areas where cadastre has been carried out in accordance with clause (a), a new cadastre is carried out with the condition that there is no change in ownership, and therefore, the results and reports related to cadastre are announced by hanging without sending notifications to the concerned parties.

In the process of re-cadastre carried out in accordance with clause 22/1-(a) of the law, there is a possibility of decrease, shift, or other changes in the current plot. The reports announced by hanging have a 30-day period to file a lawsuit after the announcement period.

It is appropriate to determine in writing or verbally from the Cadastre that the immovable property to be mortgaged is not covered by Article 22/1 of the Cadastre Law (the letter should include information that the property in question is not subject to the first paragraph of Article 22 of the Cadastre Law and will not create a change in ownership, and that the cadastre work was carried out only for the purpose of technical re-cadastre).

If the cadastre work is carried out in accordance with Article 22/1-(a) of the Cadastre Law, it is appropriate to wait for the 30-day period for filing a lawsuit after the reports are announced by hanging and for the cadastre process to become final.

If the immovable property is among the areas subject to Article 22/1-(a) of the Cadastre Law, where only technical re-cadastre is carried out without any change in ownership, it is appropriate to wait for the cadastre process to be completed and for the announcement and lawsuit period to expire.

• ENDORSEMENT OF CONSTRUCTION CONTRACT FOR FLOOR EQUITY

With the floor equity construction contract endorsed on the title deed, the owner of the immovable property promises to transfer a certain share of the immovable property or certain independent sections of the building to the contractor in exchange for the parts that will remain from the construction. The authority to regulate the floor equity construction rights agreement belongs to notaries.

As for the landowner, they are obliged to:

• Pay the fee (this debt does not arise in all cases),
• Deliver the land,
• Transfer the designated land shares specified in the contract.

If the parties fail to fulfill their obligations in accordance with the contract, or due to legal or actual impossibility of performing the obligations stated in the contract, or if the subject matter of the contract is actually destroyed, the contract may be terminated.

Termination of the contract may also have a retroactive effect. That is, if either party requests the termination of the contract due to non-performance of mutual obligations in accordance with the contract, and if this request is accepted, the ownership and limited real rights of the persons who acquire the immovable property from the place subject to the contract may also end.

The annotation entered into the land registry records in accordance with Article 41 of the Cadastre Law No. 3402 states that errors arising from measurements, delimitation, transformation and calculations resulting from operations carried out during or after the cadastre in immovables whose geometric conditions have been finalized shall be corrected ex officio by the cadastre directorate or upon the application of the party concerned.

The correction shall be notified to the immovable property owners and other rights holders. If no lawsuit is filed in the peace court within thirty days from the date of notification for the removal of the correction, the correction made shall become final.

In cases where this annotation is seen, it should be understood that changes have been made in the measurement, boundary calculation of the mortgaged property. In case of such changes, it is necessary for the concerned parties to file a lawsuit within 30 days from the date of notification. If the parties do not file a lawsuit, the changes made become final.

If the correction/change has not yet become final, the transaction may be subject to a lawsuit. Therefore, before the sale, the pre- and post-transaction status of the immovable property, such as size and boundaries, should be compared, and it should be assessed whether the change would affect the value of the immovable property and its collateral value, even if the situation reverts to its original state after an objection to the change.

• PRIVATE FOREST

A place that has been enclosed within the boundaries of a forest through forest cadastre can be registered in the land registry without taking into account that it is a forest during the general land cadastre.

However, this does not eliminate the fact that the area is a forest. The Forest Administration can initiate legal proceedings to cancel the registration if it becomes aware of this situation.

Forests are registered in the land registry on behalf of the Treasury of the Ministry of Finance and cannot be owned by individuals. Therefore, if the administration initiates legal proceedings after becoming aware of the situation, the cancellation of the registration and consequently the cancellation of our mortgage will be possible.

• “REAL CAPITAL” ANNOTATION UNDER TURKISH COMMERCIAL CODE ARTICLE 128

According to Article 128 of the Turkish Commercial Code, it is possible for the owner of real estate to pledge it as capital/debt capital in favor of a company. This fact is also annotated in the land registry. These annotations on property do not constitute an obstacle for sale.

IMPORTANCE OF SEEKING LEGAL ASSISTANCE IN PROPERTY RECORD SEARCH FOR ENCUMBRANCES ON REAL ESTATE 

Annotations on property at registration records contain important information for the owner or buyer of a property. This information helps to determine the real value of the property and facilitates the smooth execution of sales or transfer transactions.

Detailed examination should be carried out if there are annotations on the property registration record to prevent adverse consequences during sales of properties with annotations.

Therefore, all deed restrictions in the property registration record should be carefully examined, and, if necessary, legal assistance from an expert should be sought to evaluate whether the annotations and declarations impose any deed restrictions that may affect the value of the property.

Thorough title search of annotations and declarations in the property registration record by a legal expert is also important for determining property rights and obligations, in addition to property buying and selling transactions. Accurate determination of property rights and obligations, especially, prevents disputes between parties and avoids unnecessary legal processes.