“Since no specific statute of limitations is prescribed for lawsuits arising from a real estate sales promise agreement, the ten-year statute of limitations shall apply pursuant to Article 125 of the Code of Obligations (Art. 146 of the TCO), and this period begins to run once the possibility of performance arises. However, if the real property subject to the promise has been delivered—either contractually or de facto—to the promisee, the defense of statute of limitations shall not be heard in lawsuits filed after the ten-year period has expired, as it would be incompatible with the ‘rule of honesty’ (bona fides) stipulated in Article 2 of the Turkish Civil Code.”
T.C. COURT OF CASSATION 14th CIVIL CHAMBER
Basis No: 2016/3789 Decision No: 2016/9049 Date: 01.11.2016 “CASE PRECEDENT”
COURT: Civil Court of First Instance TYPE OF LAWSUIT: Cancellation of Title Deed and Registration / Compensation
JUDGMENT: Upon the appeal of the judgment dated 07.10.2015 regarding the dismissal of the case; the file and all documents therein were examined:
THE CASE: The lawsuit concerns the request for the cancellation of the title deed and registration based on an agreement to sell, or in the alternative, compensation. The plaintiff claimed that through an agreement to sell dated 29.11.1993, the entire share in parcel no. 23 was promised to be sold and the price was paid in cash. Following a zoning application, the defendant’s share was registered as new parcels. The plaintiff alleged that the subsequent sale of the property to a third party was not in good faith and requested registration or compensation of 750,000.00 TL.
THE DECISION: The local court decided to dismiss the case due to the statute of limitations (zamanaşımı).
REASONS FOR REVERSAL: Agreements to sell real property are contracts that impose obligations on both parties and grant personal rights, and they must be issued ex officio before a notary public.
While a 10-year statute of limitations generally applies to these contracts starting from the date the possibility of performance arises, this period does not apply if the property has been delivered to the promisee. In such cases, invoking the statute of limitations is considered a violation of the rule of honesty (TCC Art. 2). In the concrete case, the court dismissed the case solely on the statute of limitations without determining whether the promised property was actually delivered to the plaintiff. An on-site discovery (keşif) must be conducted and witnesses must be heard to clarify whether delivery took place. Establishing a judgment based on incomplete research was incorrect.
CONCLUSION: It was UNANIMOUSLY DECIDED on 01.11.2016 to REVERSE the judgment for the reason explained above.