The 14th Civil Chamber of the Court of Cassation has defined agreements to sell real property as follows: “Agreements to sell real property, which derive their source from Article 22 of the Code of Obligations, are a type of contract that must be drawn up ex officio before a notary public pursuant to Article 213 of the Code of Obligations, Article 706 of the Turkish Civil Code, and Article 89 of the Notary Law. In other words, their validity is strictly dependent on an official form requirement; they impose obligations on both parties and grant personal rights. In the event that the obligation is not fulfilled by the seller who is burdened with the debt of transferring ownership, the promisee may request the fulfillment of the debt by a court decree through a lawsuit for the cancellation of the title deed and registration to be filed pursuant to Article 716 of the Turkish Civil Code.”
The Court of Cassation has ruled that the following conditions must be met for the acceptance of lawsuits arising from agreements to sell: “In order to decide on the acceptance of lawsuits arising from an agreement to sell, the contract must possess the possibility of performance (ifa olanağı). In a real property subject to joint ownership (elbirliği mülkiyeti – TCC Art. 701), if one of the joint owners makes a promise to sell to a person outside the partnership, although the contract is valid as an undertaking, the possibility of performance cannot be mentioned until the joint ownership is dissolved. This also applies if there is an annotation on the title deed of the property preventing dispositive transactions, if the sale is promised in violation of Article 8 of the Soil Conservation and Land Use Law No. 5403, or if the property subject to the promise is a matter of ownership dispute in another court.”
14th CIVIL CHAMBER | Basis No: 2017/2159 | Decision No: 2017/5245
“Legal Precedent” COURT: Civil Court of First Instance
DECISION: The lawsuit concerns the request for the cancellation of the title deed and registration arising from an agreement to sell. The plaintiff’s counsel claimed that the defendants’ predecessor (…) promised to sell the inheritance rights to be devolved from his predecessor (…) in parcels no. 91, 93, and 115 through a notarized agreement to sell dated 30.12.1996. It was requested that the defendants’ shares in said parcels be cancelled and registered in the name of the plaintiff.
In the concrete case; the subject immovable properties are currently subject to the joint ownership regime (elbirliği mülkiyeti) in the land registry in the name of the defendants and other non-party heirs of the root predecessor. It is understood that the plaintiff is not one of the joint owners in the property; in other words, the plaintiff is a third party outside the estate (terke dışı üçüncü kişi). Since the subject property is subject to the joint ownership regime, the possibility of performance does not exist. While the court should have decided to dismiss the lawsuit for this reason, the establishment of the judgment as written was not found correct.
CONCLUSION: For the reasons explained above, it was unanimously decided on 19.06.2017 to REVERSE the judgment and return the advance fee upon request.