Entrance
Co-ownership (shared real estate ownership) refers to the division of a property into shares owned by more
than one person. In this type of ownership, if one shareholder sells their share to a third party, the other
shareholders have the right to purchase that share first—that is, the right of pre-emption (pre-emption).
Pre-emption rights serve the purposes of preserving the ownership order among the shareholders,
preventing harm to the shareholders, and preventing outside domination.
A preemptive action (preemptive action) is a type of lawsuit used to enforce this right. However, the right becomes exercisable through
a lawsuit, not automatically through a declaration of intent. This distinguishes preemptive action from the classic concept of
“preemptive right based on declaration of intent.”
1-) Legal Basis
A-) Legal Regulation
The right of pre-emption is regulated in the Turkish Civil Code (TCC) in the provisions of Articles 732–734.
TMK art.732:“In case of joint ownership, if a shareholder sells his share of the real estate, in whole or in part, to a third
party, the other shareholders may exercise the pre-emption right.”
TMK art.733:Procedural rules such as the duration of this right, how it will be used, and the notification obligation of the buyer are
determined.
TMK art.734:It regulates some exceptions and waivers in terms of application.
Therefore, the right of pre-emption is a limited real right arising from the law within the civil law
system.
B-) Nature of Right
While determining the nature of the right of pre-emption in the law of rights, the doctrine and the decisions of the Supreme Court put forward the following opinions:
The right that creates innovation:When the right of pre-emption is exercised, a new sales contract is created as a result of
the lawsuit, and ownership passes to the plaintiff. In this respect, the case’s ruling has a refreshing effect.
Encumbrance on the real estate:The right of pre-emption is a restriction arising from the law regarding the ownership of real estate; that is, it
is possible to reflect it in the land registry records.
Connection with limited real rights:The right of pre-emption is a limited real right that directly interferes with the right of ownership;
however, this limitation arises from the fact that it is a right specific to the shareholders.- The Supreme Court and unification decisions of jurisprudence also support this characterization; especially in the
Supreme Court Unification Decision No. 1/6 of 1951, it was accepted that the right of pre-emption is a right that creates
innovation.
2-) Constituent Elements / Conditions of Pre-emption Case
There are certain legal elements that must be met for a pre-emption lawsuit to be accepted. These elements should be
analyzed at the “origination of the pre-emption right” and “exercisability of the pre-emption right” stages.
A-) Joint ownership relationship
The right of pre-emption is only valid for real estate subject to shared ownership relations.
The right of pre-emption does not arise in ownership forms such as condominium, floor easement, and joint ownership.
In addition, the right of pre-emption cannot be claimed for shares of non-owners that are not registered in the
title deed.
B-) Sale to a third party- The right of pre-emption only arises when a shareholder sells his share to a third party.- The right of pre-emption cannot be used in sales made between other stakeholders.- The right of pre-emption generally cannot be exercised in transfers such as donation, barter, inheritance and expropriation.- The sale must be official; title deed registration and documentation of the sale are important.
C-) Notification obligation- The stakeholder or buyer making the sale is obliged to notify other stakeholders about the sale transaction.- The notification must be made through a notary and the recipient must be able to reach the stakeholders.- If notification has been made, the 3-month period begins from this date; if no notification has been made, the 2-year period
begins. (Limiting periods)- If no notification is made, a lawsuit must be filed within 2 years from the date of sale.
D-) Time conditions (limiting periods)- In sales with notification: The partner must file a lawsuit within 3 months from the date of notification.- If no notification has been made: This lawsuit must be filed within 2 years at the latest from the date of the
sale transaction.- These periods are of a statute of limitations and a pre-emption lawsuit cannot be filed after the periods have expired.
E-) Determination of price and storage liability- The plaintiff shareholder must deposit the sales price, title deed fee and other expenses at the court
cashier.- The price is generally based on the sales price shown in the title deed; however, if there is a fabricated sale between
the parties or if the sales price is actually shown lower or higher, this situation can be disputed.
F-) The plaintiff’s capacity to file a lawsuit (active litigation capacity)- Those who can file a pre-emption lawsuit are the other stakeholders of the real estate.- Those who are not stakeholders or who are clearly determined not to have the “right of pre-emption” cannot file a lawsuit.- In addition, the shareholder who waives loses his/her share of the case.
G-) Waiver and pre-emption right arising from the contract- Stakeholders may waive their pre-emption rights. Waivers must generally be made in writing and accompanied by a title deed
annotation; otherwise, they are not binding on anyone else.- Additionally, a pre-emption right arising from the contract may be established between the parties. In this case, a special
arrangement is made between the parties; however, this right cannot be asserted against third parties unless it is annotated on the
title deed.
3-) Buyer’s Obligation to Notify the Sale through a Notary Public
According to Article 733/3 of the Civil Code, the buyer must notify all stakeholders of the purchase of the property through a
notary public. A buyer who fails to fulfill this notification obligation will be subject to a pre-emption lawsuit filed by the
stakeholders. Even if the buyer fulfills their obligation to notify the purchase of a shared property in writing, rather than
through a notary public, this notification is invalid. Notification through a notary public is an absolute obligation for the buyer.
4-) Against Whom Can the Right of Pre-emption Be Used?- Preemption rights can only be exercised against a buyer who purchased a constituent’s share. The buyer of the property is the defendant in a
third-party preemption lawsuit. A lawsuit cannot be filed against a constituent who sold their share in a preemption lawsuit.- The right of pre-emption cannot be exercised in sales made by one shareholder to another. The right of pre-emption can be
exercised against third parties, but not against shareholders.
5-) The Right of Pre-emption is Used for Real Estate That Has Not Actually Been Partitioned
If a jointly or jointly owned property has been contractually or de facto determined by the parties
as to which share of the property will be used, the right of pre-emption cannot be exercised in the
sale of that property. A pre-emption lawsuit can only be filed for properties with shares that have
not been divided by contract or de facto. The Civil Code, with this provision, aims to prevent a
shareholder from abusing the use agreed upon by the shareholders.
6-) Persons Who Can Use the Right of Pre-emption- The persons who can exercise the right of pre-emption are clearly stated in Article 732 of the Civil Code. The right of
pre-emption can only be exercised by the shareholders.- Those who are not shareholders in the real estate but have a personal claim or a limited real right on the real
estate cannot exercise the right of pre-emption.- If more than one shareholder exercises the pre-emption right, the share subject to pre-emption is shared equally among the
shareholders exercising the pre-emption right, regardless of their share ratios.
7-) Cases in which the right of pre-emption can be exercised
The right of preemption can only be exercised on properties subject to shared ownership. The right of preemption (preemptive right) cannot be
exercised on properties subject to a floor easement or condominium. Whether the property is a plot of land or an apartment is irrelevant. The
prerequisite for exercising the right of preemption is not the property’s characteristics, but rather that the property be subject to shared
ownership.
😎 Court of Jurisdiction and Competence in Pre-emption Cases
A pre-emption lawsuit must be filed with the Civil Court of First Instance, which has jurisdiction. The court with
jurisdiction for pre-emption lawsuits is the court where the property is located. Therefore, a pre-emption lawsuit
cannot be filed with the Istanbul Çağlayan Courthouse for a property located in Bakırköy. The court with
jurisdiction is the Bakırköy Civil Court of First Instance, where the property is located.
9-) How to Use the Right of Pre-emption?
The right of pre-emption can only be exercised through litigation. As explained above, any co
owner of the property must file a lawsuit against the buyer.
10-) Time Limit for Using the Right of Pre-emption (Pre-emption Right)- The preemption period is designed to prevent shareholders from using their indefinite right to
file a lawsuit, thereby putting the buyer in a difficult position. There are two types of preemption
periods:- If the sale has been notified to the shareholders with pre-emption rights (pre-emption rights) by the buyer of the real estate through a
notary, a pre-emption lawsuit must be filed within 3 months from the date of notification of the sale.- If the sale has not been notified to the shareholders with pre-emption rights through a notary, a pre-emption lawsuit must be
filed within 2 years from the date of sale.- The periods specified for exercising pre-emption rights are statute-barred. After these periods, it is
not possible to file a pre-emption lawsuit.
11-) Contractual Pre-emption Right- A preemptive right may be granted to someone through a contract. A preemptive right is entered into between the owner of
the property and the person to whom the preemptive right is granted. The validity of a preemptive right depends on its being
in ordinary written form (Article 237/3 of the Turkish Code of Obligations). A preemptive right must clearly specify the property
and the parties to the contract. The failure to specify the preemptive right price in the contract does not invalidate the contract.
A preemptive right agreement may be concluded without specifying the price of the preemptive right that is the subject of the
contract. In this case, the preemptive right price is the sale price of the property specified in the contract between the owner of
the property and the third party purchasing the property.- A pre-emption right arising from a contract is a personal right and applies only to the parties to the
contract. However, if the pre-emption agreement is annotated on the title deed, this personal right becomes
a real right and can be asserted against anyone.- According to Article 735 of the Turkish Civil Code (TCC), a pre-emption right may be granted to any person through a contract
annotated in the land registry. In this case, if the property is sold to a third party other than the shareholders, the owner of the pre
emption right arising from the contract may exercise the pre-emption right within the period and under the conditions specified in the
contract. If the contract does not specify the conditions for exercising the pre-emption right, the pre-emption right may be exercised
based on the conditions of the sale of the property to the third party.
- The pre-emption right arising from the contract expires in any case after 10 years have passed from the date of annotation on the title deed.
12-) Is it possible to waive or give up the right of pre-emption (pre-emption right)?- The right of preemption is a right arising from private law relationships. The entitled shareholder may
waive this right. A general waiver of preemption rights not related to a specific sale must be made officially
and annotated in the land registry.- A waiver of the right of pre-emption in a concrete sale is only valid if it is made in writing. The
shareholder who waives the right in a concrete sale may re-execute the waived pre-emption right upon
the resale of the property.- It’s important to note that a prior, general waiver of preemption rights, not related to a
specific sale, renders the transaction invalid. A general waiver in writing has no legal
consequences. For example, if a shareholder sells a share of a property in Istanbul in which I
am a shareholder, I will not exercise my preemption right.
Ordinary written waiver is legally invalid.
CONCLUSION
The right of preemption is a limited real right granted under Turkish Civil Law, particularly in cases
of jointly owned real estate, to ensure a balance between owners and to protect the partnership
structure against external interference. This right serves not only its legal nature but also a
systematic function in ensuring the stability and predictability of real estate law.
The exercise of the pre-emption right is not directly limited to individual initiative, but rather to a litigation process subject to
specific conditions and procedures. In this respect, the institution of pre-emption constitutes a counterbalance mechanism that
both prevents abuse of the rights holder’s authority and ensures the buyer’s confidence in the property acquisition process.
In particular, topics such as the manner and content of the sales notification, the effect of actual division on the right of
pre-emption, the evaluation of collusion claims, the effect of waiver declarations on third parties and the criteria for
determining value continue to be controversial both in doctrine and in jurisprudence practice.
Problems encountered in practice, such as de facto division, collusion, valuation, the nature of the
notification obligation, and the limits of waiver, have led to judicial precedents assuming a decisive role in
the interpretation of the institution of preemption. These precedents make the abstract framework of legal
provisions applicable to concrete cases, thereby increasing the effectiveness of the right of preemption
within the dynamic structure of the legal order. However, this situation also introduces certain legal
uncertainties and practical differences.
In conclusion, the right of pre-emption, and the related pre-emption lawsuits, are important institutions that both
theoretically regulate the distribution of property and, in practice, ensure the oversight of legal relations between
stakeholders. The procedural and material conditions observed during the exercise of this right aim to establish a
delicate balance between the stakeholders’ right to ownership and the security of acquisition by third parties. Therefore,
the institution of pre-emption represents a unique legal structure that simultaneously reflects both the protective and
regulatory functions of real estate law and deserves systematic examination.
THE MOST CURIOSITY ABOUT THE PRE-CESSION CASE
THINGS TAKEN
1-) What is the right of pre-emption?
The right of pre-emption is the right that gives the other shareholders the right to purchase this share with priority in case a
shareholder sells his share to a third party in a real estate subject to joint ownership.
This right allows shareholders to prevent the fragmentation of ownership and maintain control of the property. It
is regulated in the Turkish Civil Code and represents a groundbreaking right.
2-) In what cases can a pre-emption lawsuit be filed?
A pre-emption lawsuit may be filed in the following cases:- In case one of the shareholders sells his share in a real estate subject to joint ownership to a third party,- If there is a pre-emption right arising from the contract and there is a violation of this right,- Provided that the sale is based on a valid sales contract.- If the sale is made through another transaction such as donation or barter, the right of pre-emption does not arise.
3-) Who can file a pre-emption lawsuit?- Only persons who are stakeholders can file a pre-emption lawsuit.- Third parties or people who have no interest in the real estate cannot file this lawsuit.- If there is more than one stakeholder, each stakeholder may file a lawsuit on his own behalf or through the power of attorney of the other stakeholders.
4-) Which court has jurisdiction and authority in pre-emption cases?
Competent Court:The place where the real estate is located is the Civil Court of First Instance.
Competent Court:Generally, the Civil Courts of First Instance are competent.- The rules of authority and duty are definitive and cannot be changed by agreement of the parties.
5-) What is the period for filing a pre-emption lawsuit?
According to the Turkish Civil Code, the right of pre-emption must be exercised within 3 months from the date the rightful owner learns about the sale and
within 2 years from the date the sale is registered in the land registry.
These periods are statute of limitations and it is not possible to file a lawsuit after the period has passed.
6-) Who is the defendant in the pre-emption case?
A pre-emption lawsuit is filed against the third party who purchased the share.
The former shareholder who sold the share is not a mandatory party to the lawsuit, but in some cases, its inclusion in the
lawsuit may be strategically beneficial.
7-) What documents are required in a pre-emption case?- Land registry records and bill of sale,- Documents or witness statements proving that the sale was learned,- Documents showing the stakeholder status, - If necessary, evidence of payment, photograph or actual distribution,- Power of attorney and bank deposit receipt.- These documents are important in terms of proving the case.
😎 Does actual division (actual sharing) affect the right of pre-emption?
Yes, it does.
De facto partition is when the parties effectively divide the property among themselves and use it in this manner for an extended
period. According to Supreme Court precedents, if de facto partition exists, exercising the preemptive right may be considered an
abuse of rights, and the case may be dismissed. However, the existence of de facto partition is evaluated on a case-by-case basis.
9-) How is the sale price determined in a pre-emption case?
As a general rule, the sales price shown on the title deed is taken into account.
However,- If there is a claim of collusion (concealment) in the sales price,- If the price does not reflect the truth,
The court can determine the real price with an expert report.
The right holder must deposit this amount within the period determined by the court.
10-) Is it necessary to give a warning before filing a pre-emption lawsuit?
While issuing a notice before filing a pre-emption lawsuit is not mandatory, it is recommended in practice. A notice
notifies the other party that the right is being exercised and can prevent allegations of bad faith.
11-) In what cases cannot the right of pre-emption be exercised?- Transfer of the real estate to a person who is not a shareholder by means other than sale (donation, barter, inheritance, etc.),- Transfer of shares through inheritance,- The existence of actual division and its use for a long time,- The limitation periods have passed,- The sale is invalid.
In these cases, a pre-emption lawsuit cannot be filed or the lawsuit is dismissed.
12-) What is the storage requirement in a pre-emption case?
The court requires the rights holder to deposit the purchase price into the court’s treasury within a specific timeframe.
This is essential for the legal proceedings.
If the warehouse is not built, the case may be dismissed on procedural grounds.
13-) Can the right of pre-emption be transferred or passed to the heirs?
Although the right of pre-emption is a personal right, it is transferred to the heirs.
Heirs may exercise the preemption right held by their heirs either jointly or individually. However,
preemption rights cannot be transferred to a third party.
14-) What will be the result if the pre-emption case is won?
When the case is won, the court cancels the title deed registration in the name of the third party who received the share of the real estate and registers it
in the name of the plaintiff shareholder.
The amount paid to the defendant is covered from the amount deposited in the court treasury.
15-) What are the most common mistakes made in pre-emption cases?- Expiration of the period for filing a lawsuit,- The lawsuit was filed against the wrong person,- Incomplete preparation of required documents,- Ignoring the actual division phenomenon,- Failure to fulfill storage obligations,- Confusion of sales with transactions such as donations or inheritance.
These errors may lead to dismissal of the case or loss of rights.
COURT OF APPEALS DECISIONS REGARDING THE PRE-CESSION CASE
1-) Supreme Court Decision – HGK., E. 2012/198 K. 2012/702 T. 10.10.2012 (Pre-emption Right Cannot Be
Used Against Shareholders);
“…Although he later repurchased shares on 27.05.2005, it is not possible to exercise the right of
preemption against the shareholder since he was a shareholder at that time…”
2-) Supreme Court Decision – HGK., E. 2017/1763 K. 2019/129 T. 12.2.2019 (Decision stating that the
decision made without considering this issue, despite the existence of an active sharing in the real
estate, is not considered correct);
“…When all these issues are evaluated together, it is not deemed correct to decide to accept the case
without considering the existence of an active division in the real estate…”
3-) Court of Cassation 14th Civil Chamber 2016/11391 E. – 2019/8460 K. 09.12.2019 T. (decision
containing the purpose of organizing the pre-emption case);
“…The aim pursued by the legislator regarding the pre-emption right included in Law No. 4721 is to prevent the
entry of foreign (third) parties among the stakeholders, to concentrate the shares in the hands of one or a few
stakeholders to the extent possible, and to end the uneconomic and conflicting co-ownership relationship
between the stakeholders…”
4-) YHGK. 2017/14-1950 E. – 2020/853 K. 10.11.2020 T. (Decision on the emergence of the legal
pre-emption right);
“…the legal pre-emption right is a revolutionary right that grants the other stakeholders the right to first
purchase the sold share in real estate subject to joint ownership provisions if a shareholder sells their share in
the property, in whole or in part, to a third party. This right arises from the moment the joint ownership
relationship is established and becomes exercisable upon the sale…”
5-) Court of Cassation 7th Civil Chamber 2021/2974 E.-2022/3228 K. 28.04.2022 T.
(Obligation of the buyer to notify other stakeholders about the existence of the pre
emption right through a notary public);
“…According to Article 733/3 of Turkish Civil Code No. 4721, mere knowledge is not sufficient to trigger the three-month limitation
period, and the sale must be notified to the other stakeholders through a notary public by the buyer or seller. If no notification is
made through a notary public, cancellation of the title deed and registration can be requested within the two-year limitation period,
relying on the right of pre-emption. The decision of the General Assembly of Civil Chambers of the Supreme Court of Appeals, dated
September 21, 2005, numbered 2005/6-358, decision numbered 470, is also in this direction…”
The Importance of Legal Support
Preemption cases require technical knowledge, legislative expertise, and deep expertise in judicial
practices. While the legal provisions are clear, each case has its own unique circumstances, and even a
small mistake can lead to loss of rights. Therefore, working with an experienced attorney from the
beginning of the process is crucial to determining the right strategy, protecting your rights, and
achieving the swiftest resolution.
It’s important to remember that every step taken during the litigation process has legal and financial implications.
A professional lawyer will guide you not only in preparing the petition but also in gathering evidence,
representing the court, negotiating, and pursuing alternative solutions.
In order not to risk your rights and to manage the process safely, it is recommended that you consult a specialist lawyer.