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The right of pre-emptionis the preferential right of purchase granted to the other co-owners where a co-owner in shared ownership sells their share to a third party. In this article we discuss the definition of the right of pre-emption, the purpose for which it is granted and the peremptory period applicable to the exercise of the right, together with a Court of Cassation decision.
Under Article 732 TCC: “In co-ownership, where a co-owner sells his or her share in the immovable wholly or partly to a third party, the other co-owners may exercise the right of pre-emption.’’ In an immovable subject to the co-ownership regime, the right of the remaining co-owners to acquire, on the same terms and with priority, the share sold by one of the co-owners to a third party is called the right of pre-emption (şufa).
“Where a co-owner in shared ownership sells all or part of their share in an immovable property to a third party, the other co-owners may exercise the right of pre-emption.”
Turkish Civil Code, Art. 732
Since sole ownership is more advantageous than multi-party ownership and easier to manage, an outsider is prevented from joining the co-owners. As a result of a sale by one of the co-owners to a third party, an outsider would become part of this ownership relationship, which could cause problems for the other co-owners at later stages.
The right of pre-emption, which entails the priority right to purchase in a sale by a co-owner to a third party, has been made subject to a period of forfeiture. Accordingly, a co-owner who purchases a share in any co-owned immovable will not face a pre-emption action for his or her entire life.
Peremptory period · taken into account ex officio
The most important difference distinguishing a period of forfeiture from a limitation period is that it is taken into account by the judge of his or her own motion (ex officio). If the claimant brings the pre-emption action after the period of forfeiture has expired, the judge will dismiss the action as time-barred. The action will be dismissed even if the defendant has not raised this point.
Paragraphs 2–3 of Article 733 of the Turkish Civil Code read: ‘’The sale shall be notified to the other co-owners by the purchaser or the seller through a notary. The right of pre-emption lapses three months after the date on which the sale was notified to the right holder and, in any event, two years after the sale.’’ Under this provision, the period of forfeiture is 3 months from the date on which the co-owner learns of the sale and, in any event, 2 years.
Three months
From the date on which the sale is notified to the right holder.
In any event two years
From the date of the sale.
Article 241 of the Turkish Code of Obligations reads: ‘’The seller or the purchaser is obliged to notify the holder of the right of pre-emption, through a notary, that the contract of sale has been concluded and of its content.’’ Owing to this provision, and in line with Court of Cassation judgments, notification through a notary is required for the three-month period to begin.
COURT OF CASSATION 14th CIVIL CHAMBER E. 2014/14384 K. 2015/10290 D. 13.11.2015; ‘’The right of pre-emption lapses upon the expiry of three months from the date on which the sale is notified to the right holder and in any event two years from the sale.” This period is a peremptory period and must be taken into account by the court of its own motion. As also explained in the reasoning of the Court of Cassation Assembly of Civil Chambers’ Decision dated 21.09.2005, Docket No. 2005/6-358, Decision No. 470, knowledge alone is not sufficient for the three-month peremptory period to begin; under the Turkish Civil Code 733/3 TCC. As to the specific case: under Article 733/3 TCC, the notification that should have been made through a notary was not made. The share was sold to the defendant on 07.05.2012, and the action was brought on 07.10.2013, that is, before the two-year period expired. The action was therefore brought in time. In light of all these explanations, while the court should have examined the merits of the case and given a decision accordingly, it was not correct to render judgment as written.’’(1)
Court of Cassation 14th Civil Chamber, E. 2014/14384 K. 2015/10290 T. 13.11.2015
(1) www.lexpera.com.tr/ictihat/yargitay
Related legislation: Turkish Civil Code No. 4721 (mevzuat.gov.tr)
Where one of the co-owners of an immovable property held in shared ownership sells their share to a third party, it is the right of the other co-owners to purchase that share on the same terms and with priority. The article explains this on the basis of Art. 732 of the TMK.
The article states that the entry of an outsider among the co-owners may create problems for the other co-owners in the future, and that the aim is therefore to prevent an outsider from joining the co-owners.
TMK m. 733’e göre önalım hakkı, satışın hak sahibine bildirildiği tarihin üzerinden üç ay ve her hâlde satışın üzerinden iki yıl geçmekle düşer. Bu süreler hak düşürücü niteliktedir.
The most important difference noted in the article is that the judge takes a preclusive period into account of their own motion. An action brought after the period has expired is dismissed even if the defendant does not raise it.
According to the Court of Cassation decisions cited in the article, knowledge is not sufficient to start the three-month period; the sale must be notified by the buyer or the seller through a notary. Where no notarial notification has been made, an action brought within two years of the sale has been held to be timely.
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