Share partnerships in immovable property may lead to various legal problems over time. One of these problems is the right of pre-emption, which arises when one of the shareholders sells his/her share to a third party. The right of pre-emption is a legal right that grants the person who is a shareholder in an immovable property the right of priority purchase under the same conditions if the other shareholder sells his/her share to a third party.
What is the Right of Preemption?
The right of self-interest, Article 732 of the Turkish Civil Code and is a legal right granted to shareholders in immovable properties subject to shared ownership. The purpose is to ensure the continuity of ownership among the shareholders by preventing the sale of the immovable property to foreigners.
Thanks to this right, when a shareholder sells his/her share, other shareholders can exercise their right to purchase this share at the same price and conditions. This right must be exercised after the sale is completed and within a certain period of time.
What are the Conditions of the Right of Shuffa?
The following conditions must be fulfilled in order to exercise the right of right of redress:
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It must be an immovable property subject to shared ownership. There is no right of interest in condominium or joint ownership.
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An actual sale transaction must have taken place. Transactions such as grants, exchanges and transfers do not give rise to the right of pre-emption.
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The sale must be to a third party (i.e. someone other than one of the shareholders).
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The sale must be made officially at the land registry and the right of interest must be exercised after this sale.
Informal transactions between the seller and the buyer cannot be subject to a claim of shafafa. The title deed must have been transferred.
How Long Should a Complaint be Filed?
The right of pre-emption arises with the registration of the sale in the land registry; however, in order to exercise this right, a lawsuit must be filed within a certain period of time. Otherwise, the pre-emption right expires and the shareholder loses this right.
The period for filing a lawsuit is determined as follows:
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3 months from the date of learning of the sale,
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Maximum 2 years from the date of sale.
The important point here is that the 3-month period starts on the date the sale is learned. For example, if the shareholder only learned about the sale when he examined the land registry records or when the new owner notified him, this date is taken as basis. However, if it cannot be proved when the shareholder learned of the sale, the period starts from the date of sale and the maximum period of 2 years is applied.
If the time limit is missed, the right of pre-emption is completely terminated, which means that the immovable property belonging to the shareholder remains permanently in the hands of a foreign person. For this reason, the date of learning of the sale should be determined in a way that can be proved by written documents or witnesses, and the legal process should be initiated without delay.
In such cases, we help our clients to document the moment of access to information in official records in order to establish a clear timeframe and to ensure that the right of redress is not lost.
How to File a Complaint?
The exercise of the right of redemption is only possible by filing a lawsuit. In other words, it is not enough for the shareholder to purchase the share by agreeing with the buyer after the sale; the right holder must ensure the transfer of the title deed by a court decision. In this respect, the right of redemption lawsuit is not only a purchase and sale, but also an intervention lawsuit for the protection of the right.
The Process of Filing a Complaint:
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Determining the Realization of the Sale
The first step is to learn that the sale has been realized. You can be informed about the sale by inquiring from the land registry offices or by the notification made by the new owner. -
Filing a Lawsuit at the Civil Court of First Instance
The lawsuit for the right of redress is filed at the Civil Court of First Instance where the immovable property is located. The following documents must be submitted with the petition:-
Land Registry
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Sales contract (if applicable),
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Documents showing the shareholding of the plaintiff,
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Document or witness statement that the sale was learned.
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Deposit of the Sale Price to the Court Cashier
The shareholder who exercises the pre-emption right must deposit the price paid in the sale to the court cashier. If this amount is not deposited, the case will be dismissed. This rule is to prevent damage to the buyer in case the sale is invalidated. -
Trial and Transfer of Title Deed
If the court examines the evidence and determines that the right of interest has been exercised in a justified and timely manner, it decides to cancel the sale and register the share in the title deed in the name of the plaintiff. With this decision, the share of the third party buyer is transferred to the plaintiff who is a shareholder. -
Notification of the Decision to the Land Registry
After the decision is finalized, the court decision is submitted to the land registry and the plaintiff is registered as the new owner in the land registry.
Stages of Filing a Lawsuit:
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Learning of the Title Deed Sale
The shareholder learns about the sale from the title deed or from the buyer’s notification. This date of learning is the beginning of the period. -
Preparation of the Petition
A lawsuit is filed for the annulment of the sale and the transfer of the title deed based on the right of usufruct. The lawsuit is filed at the Civil Court of First Instance where the immovable is located. -
Deposit of the Sale Price to the Court
The sale price paid to the buyer is deposited by the plaintiff to the court cashier. This is mandatory for the annulment of the sale and enforcement of the transfer order. -
Court Decision and Transfer of Title Deed
At the end of the lawsuit, if the court decides that the plaintiff’s pre-emption right is valid, the share of the immovable in the title deed is transferred to the plaintiff.
What to Consider Before Filing a Lawsuit?
The following issues must be evaluated before filing a lawsuit:
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Was the sale actually made at the land registry?
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When did the claimant learn about the sale date?
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Whether there is collusion in the sale,
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Evidence that the share was sold to a third party (title deed records, sales contract, etc.),
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Is the sale price in line with market value?
In addition, in some cases, it may be shown as a sale in the title deed, but in reality a different transaction may have been made. In such cases, a collusion lawsuit may also be filed. Therefore, it is of great importance to get professional support from the very beginning of the process.
In order to ensure that our clients do not lose their rights, we meticulously follow up both time and evidence in these cases and manage the entire process effectively.
The sale of immovable property to a foreigner may seriously affect the ownership rights and the balance of use of other shareholders. However, the right of interest provides shareholders with a strong protection against such situations. If the deadlines are not missed and the right legal action is taken, the control of the immovable property can remain among the shareholders.
Contact Us
If you are a shareholder in an immovable property and one of the other shareholders has sold his/her share to a third party, you can contact us to exercise your right of usufruct. As Attorney Atakan Ayhan, we provide comprehensive legal services to both our individual and corporate clients on process management, document supply and litigation follow-up. In order to avoid any loss of rights, it is very important to carry out the process on time and with an expert team.
