LEGAL DEFINITION OF PARTITION ACTION IN TURKEY

CONCEPT OF JOINT OWNERSHIP OF PROPERTY AND ITS TYPES IN TURKEY

Before examining Partition Lawsuits in Turkey, it is essential to understand the concept of joint ownership, which can only be established in ways prescribed by law.

Joint ownership in Turkey refers to a situation where multiple individuals hold ownership rights over a single asset. In such cases, ownership is shared among the partners, and a certain degree of order and agreement must exist among them. Joint ownership is classified into three main types:

• Shared Ownership

In this type, multiple individuals hold a predetermined share of an asset. Each partner has a specific share, which is determined in advance, and they have the right to freely dispose of their shares. Shared ownership can be dissolved through a Partition Lawsuit in Turkey.

• Joint Ownership

In this type, the ownership rights are held jointly without specific shares. Each partner has equal rights to the entire property. Since there are no defined shares, partners cannot independently dispose of their portions.

• Condominium Ownership

This type applies to completed structures, where independently usable spaces within the building are established as separate ownership rights by the owners or co-owners. Each owner has individual ownership of their unit while also owning a share in the main property. Condominium ownership necessitates cooperation and agreement among real estate owners.

For detailed information on Real Estate Law, please visit our Real Estate Law in Turkey page.

WHAT IS A PARTITION LAWSUIT IN TURKEY?

A Partition Lawsuit to force sale of a house, also known as an “Action for Dissolution of Joint Ownership” is a legal process initiated by one or more co-owners of a movable or immovable property who no longer wish to maintain the joint ownership or are unable to reach an agreement to divide the property amicably in Turkey. Through this lawsuit, the dissolution of joint ownership of property is requested in court.

Although a Partition Lawsuit to force sale of a house is not explicitly regulated under the Turkish Civil Code (Law No. 4071), its legal basis is derived from Article 698 and subsequent provisions of the Code.

This partition action in Turkey is the sole legal mechanism to terminate joint ownership through the court. It provides a fair solution for the co-owners to divide the property and ensures a judicial resolution to disputes. The forced sale of jointly owned property in Turkey may occur if the property cannot be divided in kind or through other means.

HOW TO FILE A PARTITION LAWSUIT IN TURKEY?

A partition case of property in Turkey is filed when a property subject to joint or shared ownership cannot be divided amicably. The process requires meeting specific conditions:

1. Type of Ownership: The property in question must be subject to joint or shared ownership. The asset could be immovable (e.g., land, buildings) or movable (e.g., vehicles, shares).
2. Representation of Parties: The plaintiff must file the partition lawsuit in Turkey against all co-owners. All co-owners must be included in the lawsuit as parties.
3. Detailed Information About the Property: Complete details about the property must be provided in the lawsuit for forced sale of property in Turkey. For immovable property, this includes land registry information; for movable property, details like license plate numbers. If there are inaccuracies or missing information in the land registry for the disputed immovable property, the court reviews the matter and may grant the parties authority and time to address the issues.
4. Documents Proving Joint Ownership: Documents that establish joint ownership over the property must be submitted to the court in partition lawsuit in Turkey.
5. Feasibility of Terminating Shared Ownership: Joint ownership must not be legally required to continue due to the property’s purpose or a legal obligation tied to the property. If such an obligation exists, shared ownership cannot be dissolved.

By considering these conditions, a partition action in Turkey for forced sale of jointly owned property aims to resolve ownership disputes fairly and equitably. The process ensures that the rights of all parties are protected, and the court delivers a just decision.

IS MEDIATION MANDATORY IN PARTITION ACTIONS IN TURKEY?

As of September 1, 2023, mandatory mediation has been implemented for Partition Lawsuits in Turkey. For cases filed after this date, if the parties have not attempted mediation, the partition case of property will be dismissed on procedural grounds due to a lack of prerequisite conditions.

WHO CAN FILE A PARTITION LAWSUIT IN TURKEY?

A Partition Lawsuit in Turkey can be filed by one or more co-owners or shareholders seeking to dissolve shared ownership. In addition to individuals, legal entities can also act as plaintiffs in such cases.

If the partition case of property in Turkey is filed by a single co-owner, all other co-owners must be named as defendants.

In cases where a co-owner has passed away, the heirs must be included in the lawsuit by obtaining a certificate of inheritance. The lawsuit must then be filed against all heirs for the property or real estate left by the deceased. Without including all heirs, the case cannot proceed, ensuring fairness and efficiency in the legal process.

WHICH COURT HAS JURISDICTION IN PARTITION ACTIONS IN TURKEY?

Partition actions fall under the jurisdiction of the Civil Courts of Peace regardless of the value or amount in dispute. The simple trial procedure is typically followed unless otherwise specified by law.

The competent court for immovable properties is the court located in the jurisdiction where the property is situated. If multiple properties are involved, a separate lawsuit can be filed in the relevant Civil Courts of Peace for each property. For movable properties, general jurisdiction rules outlined in the Code of Civil Procedure apply.

HOW LONG DOES A PARTITION LAWSUIT TAKE IN TURKEY?

The duration of a Partition Lawsuit to force sale of house depends on several factors, including the complexity of the case, the number of parties involved, the level of disputes among the parties, and the court’s workload. On average, a typical Partition Lawsuit in Turkey, including appeals, can take 3-4 years to reach a final resolution.

If you are considering filing a Partition Action in Turkey for forced sale of jointly owned property, it is advisable to consult a lawyer to evaluate your situation and get a more accurate estimate of the timeframe.

KEY POINTS TO CONSIDER IN PARTITION ACTIONS FOR FORCED SALE OF PROPERTY IN TURKEY

1. Finalization of the Lawsuit: No actions, including sales, can be taken until the lawsuit is finalized.
2. Division by Partition or Sale: The court may decide to dissolve the ownership through physical division (if possible) or sale. If one party requests physical division, the court must investigate whether it is feasible, as this is the preferred method.
3. Valuation for Sale: The amount determined in the expert’s report is not used in the sale. Instead, the valuation by the Enforcement Office serves as the basis for the sale.
4. No Winner or Loser: The partition case of property does not result in a winner or loser. Its sole purpose is to terminate joint ownership.
5. Two-Sided Nature of the Lawsuit: In Partition Lawsuit to force sale of house, the roles of plaintiff and defendant are interchangeable. Even if the plaintiff withdraws, the lawsuit can continue if any defendant wishes to proceed, and the court will issue a decision on the merits.
6. Legal Costs and Attorney Fees: Since there is no winner or loser, legal costs and attorney fees are proportionally shared among the parties.
7. Establishing Usufruct Rights: A co-owner can establish usufruct rights over their share, granting them the right to use and benefit from the property. If a usufruct right is established, other co-owners must be notified. If any co-owner requests division within three months of notification, the usufruct right continues through sale at the determined value.
8. Sale of Shares During the Lawsuit: According to Court of Cassation decisions, co-owners can sell their shares even while the Partition Lawsuit to force sale of house is ongoing, as there is no legal provision preventing such sales.

HOW MUCH DOES A PARTITION LAWSUIT COST IN TURKEY?

Partition Lawsuit in Turkey is subject to a fixed court fee. The legal expenses incurred during the lawsuit, including court fees and expert fees, are shared equally among the parties, regardless of the outcome. This approach ensures fairness, as there is no concept of a “winner” or “loser” in such cases.

Each party is obligated to contribute equally to the legal costs, ensuring that no party gains an unfair advantage.

HOW IS PARTITION TERMINATED IN A PARTITION LAWSUIT IN TURKEY?

1. Partition by Physical Division 

This method involves dividing the shared property among the co-owners. For example, if three heirs co-own three plots of land, each heir can be allocated one plot to dissolve the shared ownership in Turkey. However, certain conditions must be met:

• At least one party (plaintiff or defendant) must request partition by physical division.
• The court determines the feasibility of physical division through an expert assessment.
• Physical division should not result in a significant loss of property value unless all parties consent.

If physical division is deemed feasible, the court may order it. If the divided parts have unequal values, compensation may be ordered to balance the difference.

2. Partition by Sale (Negotiation or Public Auction)

If physical division is not requested or feasible, or if division would significantly reduce the property’s value, the court may order a sale. This can occur in two ways:

• Private Sale Among Co-owners: If all co-owners agree, the property is sold privately among them.
• Public Auction: If even one co-owner disagrees with a private sale, the property is sold publicly.

Once the court finalizes the decision for sale, the file is forwarded to the Sales Office, which organizes the sale in accordance with the Enforcement and Bankruptcy Law. The Sales Office sets the property’s value, and the sale is conducted based on this valuation.

3. Partition by Transition to Condominium Ownership

In cases where the shared property is a building, partition can be achieved by transitioning to condominium ownership. This involves dividing the building into independent units, with each co-owner receiving at least one unit. Key requirements include:

• A project compliant with the Condominium Ownership Law, reflecting the building’s current state or planned modifications.
• The building must be completed and constructed with durable materials.

If there are deficiencies in the project or building, the court grants time for corrections. Once completed, independent units are allocated to co-owners based on existing usage patterns or by a lottery if no prior agreement exists.

This method ensures an equitable distribution of shared ownership in cases involving buildings.

SALES STAGE IN PARTITION ACTIONS IN TURKEY

In case the sales method is preferred in the lawsuit for the termination of co-ownership, the property subject to the partition action in Turkey is sold, and the proceeds obtained are distributed among the co-owners. When the plaintiff requests the termination of co-ownership through sale, the court first evaluates whether the co-ownership can be terminated through sale.

If the plaintiff has not specified which method they prefer, the court first examines whether physical division is possible in the partition lawsuit in Turkey. If physical division is possible, this method is applied. However, if the property cannot be divided or if significant depreciation occurs when divided, it is decided to terminate the co-ownership through sale.

The sales stages in the partition lawsuit to force sale of house are as follows:

• The sale is carried out through an auction. The auction can be conducted in two ways: as a public auction open to everyone or as a private auction conducted only among the co-owners. However, for the auction to take place, the approval of all shareholders is required, and the court must issue a decision to that effect.
• After the finalization of the decisions related to the “Termination of Co-ownership” issued by the Civil Court of Peace, the file is transferred to the relevant Sales Office upon request. The sales officer is appointed by the court, and the sales process is carried out according to the Enforcement and Bankruptcy Law. The Civil Court of Peace appoints either the Legal Affairs Directorate or the enforcement officer as the sales officer in these sales.
• The sales officer makes the necessary preparations for the sale and determines the appraisal value of the property as per Article 128 and subsequent articles of the Enforcement and Bankruptcy Law. Objections to this appraisal are reviewed by the Civil Court of Peace, which issued the decision on the termination of co-ownership. Similarly, complaints against the actions of the Sales Officer are also reviewed by the Civil Court of Peace. Since requests for the annulment of the auction are also considered complaints, such requests are handled by the Civil Court of Peace.
• Decisions made by the Civil Court of Peace regarding objections to the appraisal are final. A new appraisal cannot be requested until two years have passed since the date of the appraisal.
• After the finalization of the appraisal, the sales officer determines and announces the sale conditions. The auction announcement must be made at least 1 month before the sale. The announcement includes information such as the type and characteristics of the property to be sold, the appraisal value, and the place, date, and time of the auction. In addition to this information, the sale announcement contains the terms of the auction. A copy of the announcement is notified to those recorded in the title deed.
• The sales to be conducted based on the decisions issued in partition lawsuit to force sale of house in Turkey is carried out in accordance with the provisions of the Enforcement and Bankruptcy Law.
• The first and second auctions are conducted by the enforcement officer on the date and time specified in the announcement, starting from 50% of the appraised value of the seized property. If the conditions are met, the property is awarded to the highest bidder. However, the auction price must exceed either 50% of the appraised value of the seized property or the total amount of secured claims with priority over the property and the claims of the requesting party, whichever is greater, along with the conversion and distribution costs added to this amount.
• If the conditions are met at the time the auction ends, the property is awarded to the highest bidder, and ownership of the property is transferred to the auction buyer. If the auction buyer, after offering the highest bid, fails to deposit the auction price within the specified time, the deposit taken is not returned and is primarily used to cover auction expenses and offset the debts of the entitled parties.
• The enforcement officer prepares an auction result report on the first business day following the end of the electronic auction and announces the information in this report on the sales portal the same day. The report includes the date and time the auction was completed, the fact that the property was awarded to the highest bidder if the conditions were met, the requirement to deposit the auction price into the account of the enforcement office within seven days of the announcement of the report, and the reasons why the auction could not be held if the conditions were not met.
• Once the bidding process has started, the sale request cannot be withdrawn. If the debt is fully paid before the bidding period ends, the sale is halted.
• The enforcement officer determines through a report if the auction could not be held or was canceled due to the failure to meet the minimum auction price, the highest bidder failing to deposit the auction price, or the debt being paid before the bidding period ends. If the minimum auction price is not offered or the highest bidder fails to deposit the auction price, the second auction begins on the previously announced date under the same conditions as the first auction. If no buyer emerges in the auction or the conditions stated in this article are not met, the creditor may request a new auction date within the remaining time of the original sale request. The sale request period is paused with the sale request, and the paused period resumes from where it left off as of the date of the report stating that the auction could not be held or was canceled.
• If the enforcement officer determines on the first business day after the auction ends that bids could not be placed during the last ten minutes of the auction due to technical reasons on the electronic sales portal, they decide to extend the auction period by one day. In the decision, they indicate the start and end dates and times of the extended auction period and immediately announce all these details on the sales portal. In this case, the start date of the extended auction cannot exceed three days from the date the extension decision was made. During this period, the previous highest bidder remains bound by their bid, and new bidders can participate in the auction by depositing the required guarantee.

BUILDING OR PLANT IN PARTITION LAWSUITS

A building or plant refers to items that possess the characteristics of a property, belong to it, and are integrated with it. Under Turkish law, buildings or plants are considered an inseparable part of immovable property. However, disputes may sometimes arise regarding the ownership of buildings or plants, leading to the initiation of legal proceedings before the court.

A lawsuit regarding the ownership of a building or plant typically arises in disputes between two parties. The primary purpose of this lawsuit is to legally establish that the items associated with an immovable property belong to the owner of that property. To file this lawsuit in Turkey, it must be definitively determined whether the building or plant in question belongs to the immovable property.

The lawsuit for determining the ownership of a building or plant is a significant legal process in disputes concerning the ownership of immovable properties. This lawsuit often arises as part of partition lawsuits (izale-i şuyu). The claim regarding the ownership of a building or plant is a pending issue in the ongoing partition lawsuit to force sale of house. The partition lawsuit cannot proceed until the issue of ownership is resolved and the related lawsuit is finalized.

Issues concerning the ownership of a building or plant can prolong the partition lawsuit in Turkey and lead to uncertainty regarding the parties’ rights. Disputes over ownership, in particular, may complicate the ability of other co-owners to exercise their rights. Moreover, failure to resolve such matters can delay the conclusion of the lawsuit or result in the loss of rights for the parties involved.

If the building or plant belongs to one or more of the co-owners and there is an annotation regarding this matter in the title deed, or if there is no dispute among the co-owners regarding it, the value of the land and the building or plant as of the lawsuit date is calculated separately. Subsequently, a proportional calculation is made between the total value and the separately calculated value. This proportionality determines the amount to be paid from the sale price.

In conclusion, the lawsuit for determining the ownership of a building or plant arises as a part of partition lawsuits in Turkey. Pending issues that arise before determining ownership can prolong the process and deepen disputes between the parties. It is crucial for the parties to cooperate to reach a fair resolution.