{"id":208,"date":"2022-08-17T09:00:00","date_gmt":"2022-08-17T09:00:00","guid":{"rendered":"https:\/\/utuhukuk.com\/yasal-onalim-hakki-nedir\/"},"modified":"2026-10-01T14:08:06","modified_gmt":"2026-10-01T14:08:06","slug":"statutory-right-pre-emption","status":"publish","type":"post","link":"https:\/\/utuhukuk.com\/en\/yasal-onalim-hakki-nedir\/","title":{"rendered":"What Is the Statutory Right of Pre-emption?"},"content":{"rendered":"<div class=\"pm\" data-utu-pm=\"1\">\n<p class=\"pm-giris\"><strong>The statutory right of pre-emption<\/strong> arises in respect of immovable property held in co-ownership. The statutory right of pre-emption is set out in Article 732 et seq. of the Turkish Civil Code. In this article we address the cases in which the right cannot be exercised, how and within which time limits it is to be exercised, the consequences of its exercise, waiver of the right and the case law of the Court of Cassation on de facto partition.<\/p>\n<aside class=\"pm-ozet\" aria-label=\"In brief\">\n<p class=\"pm-etiket\">In brief<\/p>\n<ul>\n<li>The statutory right of pre-emption is a formative right that entitles the other co-owners of an immovable held in shared ownership to acquire, on the same terms, the share sold by a co-owner to a third party, as against that co-owner.<\/li>\n<li>The right arises only upon a sale to a third party; it cannot be exercised in sales between co-owners, forced sales in enforcement proceedings or transfers that are not in the nature of a sale, such as barter.<\/li>\n<li>The right can be exercised only by way of legal action; to prevent transfer during the proceedings, an annotation must be entered in the land register under TMK Article 1010\/1.<\/li>\n<li>The right of pre-emption lapses three months after notification of the sale through a notary and, in any case, two years after the sale.<\/li>\n<li>The Court of Cassation does not permit the exercise of the right of pre-emption over immovables that have been de facto partitioned, finding it contrary to the principle of good faith.<\/li>\n<\/ul>\n<\/aside>\n<details class=\"pm-ic\" open>\n<summary>Contents<\/summary>\n<ol>\n<li><a href=\"#nedir\">What is the statutory right of pre-emption?<\/a><\/li>\n<li><a href=\"#kullanilamayacagi-durumlar\">Cases in which the right cannot be exercised<\/a><\/li>\n<li><a href=\"#kullanim\">Exercise of the right and the pre-emption action<\/a><\/li>\n<li><a href=\"#sureler\">Time limits for exercising the right<\/a><\/li>\n<li><a href=\"#sonuclar\">Consequences of exercising the right<\/a><\/li>\n<li><a href=\"#feragat\">Waiver of the right or of its exercise<\/a><\/li>\n<li><a href=\"#fiili-taksim\">The right of pre-emption in the case of de facto partition<\/a><\/li>\n<li><a href=\"#sss\">Frequently asked questions<\/a><\/li>\n<li><a href=\"#iletisim\">Consultation request<\/a><\/li>\n<\/ol>\n<\/details>\n<section id=\"nedir\">\n<h2>What Is the Statutory Right of Pre-emption?<\/h2>\n<p class=\"pm-tanim\"><strong>The statutory right of pre-emption<\/strong> is a formative right which, where any of the co-owners sells their share to a third party, entitles the other co-owners to acquire the share sold under the same conditions.<\/p>\n<p>The share may be sold in whole or in part. In addition, the statutory right of pre-emption is a right attached to the share. Whoever owns the share benefits from this right.<\/p>\n<p>Where the right of pre-emption is exercised, the co-owner becomes obliged to transfer their share to the other co-owner holding the statutory right of pre-emption. For this reason, where the statutory right of pre-emption is exercised, it leads to a restriction in terms of ownership of the immovable property.<\/p>\n<\/section>\n<section id=\"kullanilamayacagi-durumlar\">\n<h2>Cases in Which the Statutory Right of Pre-emption Cannot Be Exercised<\/h2>\n<p>The article lists the cases in which the right cannot be exercised as follows:<\/p>\n<ul class=\"pm-liste\">\n<li>The statutory right of pre-emption is exercised only where the share is sold to a third party. Therefore, where one of the co-owners sells his or her share to another co-owner, the right of pre-emption cannot be exercised by the other co-owners.<\/li>\n<li>The statutory right of pre-emption cannot be exercised in sales conducted through compulsory enforcement.<\/li>\n<li>The statutory right of pre-emption cannot be exercised where transfers made by way of gift or as an advance transfer of an inheritance share are carried out ostensibly as sales.<\/li>\n<li>The statutory right of pre-emption cannot be exercised in transfers by way of exchange (barter), where one property is exchanged for another, because this form of transfer is not in the nature of a sale. However, where such a situation arises and there is simulation, the simulated nature of the exchange may be established by any evidence, including witnesses, in the pre-emption action to be brought.<\/li>\n<\/ul>\n<\/section>\n<section id=\"kullanim\">\n<h2>Exercise of the Statutory Right of Pre-emption and the Pre-emption Action<\/h2>\n<p>This right may be exercised following the sale of the share to a third party who is not a co-owner, or its transfer by a transaction similar to a sale. The reason why the right arises only from sales to third parties is to prevent other, unwanted persons from joining the co-owners and to enable the shares to be concentrated in one hand as far as possible.<\/p>\n<p>The statutory right of pre-emption may be exercised by bringing an action against the buyer. There is no means of exercising it other than by action.<\/p>\n<div class=\"pm-ikili\">\n<div class=\"pm-kart\">\n<p class=\"pm-etiket\">If the share has been registered in the name of the buyer<\/p>\n<p>The pre-emption action is brought against the buyer.<\/p>\n<\/div>\n<div class=\"pm-kart\">\n<p class=\"pm-etiket\">If registration has not yet taken place<\/p>\n<p>The pre-emption action is brought against the seller.<\/p>\n<\/div>\n<\/div>\n<p>Following the sale, the relevant share in the immovable property will have been registered in the name of the buyer and the right of ownership will have passed to the buyer. After this transaction, the co-owners may bring a pre-emption action by directing their right of pre-emption against the buyer. However, if registration has not yet taken place, the pre-emption action must be brought against the seller. Where a co-owner has sold their share to a third party by way of sale and the purchaser donates that share to someone else, the person holding the statutory right of pre-emption is free to bring an action against both within the period for exercising the right. However, if the purchaser has sold it to someone else, they may, again within the period for exercising the right, bring a pre-emption action based on this right against the last purchaser.<\/p>\n<div class=\"pm-not\">\n<p class=\"pm-etiket\">Important \u00b7 Annotation in the land register<\/p>\n<p>It should not be forgotten that, together with the action brought, an annotation must be entered in the land registry under Article 1010\/1 TCC in order to prevent the transfer of the immovable. Otherwise, the transfer of ownership of the immovable will not be secured and, while the action is pending, the purchaser will be able to dispose of the immovable.<\/p>\n<\/div>\n<h3>Exercise of the Right by More Than One Co-owner<\/h3>\n<p>With regard to the exercise of the right, an immovable property may have a large number of co-owners. For the purpose of exercising the statutory right of pre-emption, the co-owners have equal rights over the share in question irrespective of their own shares. That is, if we consider an immovable property with 4 co-owners whose shares are 1\/10, 1\/10, 3\/10 and 5\/10, when the co-owner with the 3\/10 share sells it and all the remaining co-owners bring an action exercising their right of pre-emption, they will each have a 1\/3 right over that share. This will apply among the co-owners who exercise the right.<\/p>\n<div class=\"pm-not\">\n<p class=\"pm-etiket\">Bad faith<\/p>\n<p>Where there is bad faith in the exercise of the right, the pre-emption action is dismissed according to the case law of the Court of Cassation.<\/p>\n<\/div>\n<\/section>\n<section id=\"sureler\">\n<h2>Time Limits for Exercising the Statutory Right of Pre-emption<\/h2>\n<blockquote class=\"pm-kanun\">\n<p>\u201cThe 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.\u201d<\/p>\n<p><cite>Turkish Civil Code, Art. 733\/4-5<\/cite><\/p><\/blockquote>\n<p>Under Article 733\/4-5 TCC, <em>\u201cThe 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.\u201d<\/em> and the right of pre-emption is thereby made subject to periods of forfeiture. The first period concerned here is the three-month period. The three-month period begins upon notification to the co-owners; the legislature has imposed the notification obligation on either the purchaser or the seller and has also made it subject to a formal requirement, namely that it be made through a notary.<\/p>\n<div class=\"pm-ikili\">\n<div class=\"pm-kart\">\n<p class=\"pm-etiket\">Three-month period<\/p>\n<p>Starts from the date on which the sale is notified to the right holder through a notary public.<\/p>\n<\/div>\n<div class=\"pm-kart\">\n<p class=\"pm-etiket\">Two-year period<\/p>\n<p>It is a period tied to the moment the sale took place.<\/p>\n<\/div>\n<\/div>\n<p>The second period for exercising the right is the \u201ctwo-year\u201d period, which is linked to the moment the sale took place. This period applies where the co-owner has been unable to learn of the sale.<\/p>\n<\/section>\n<section id=\"sonuclar\">\n<h2>Consequences of Exercising the Statutory Right of Pre-emption<\/h2>\n<p>We mentioned above that the right is exercised by way of an action. The action enables ownership of the share to be transferred to the claimant co-owner upon payment of the price to the third party. Under Article 734\/2 TCC, <em>\u201cBefore the share is ordered to be registered in his or her name, the holder of the right of pre-emption is obliged to deposit in cash the sale price and the land registry costs borne by the purchaser, within the period set by the judge and at the place to be designated by the judge.\u201d <\/em>is how the provision is worded.<\/p>\n<blockquote class=\"pm-kanun\">\n<p>\u201cBefore the share is ordered to be registered in his or her name, the holder of the right of pre-emption is obliged to deposit in cash the sale price and the land registry costs borne by the purchaser, within the period set by the judge and at the place to be designated by the judge.\u201d<\/p>\n<p><cite>Turkish Civil Code, Art. 734\/2<\/cite><\/p><\/blockquote>\n<p>The pre-emption action is a formative action and the judgment given is a formative judgment. Upon this judgment becoming final, ownership of the share in the immovable passes to the holder of the right of pre-emption. On the basis of this judgment, the holder of the right of pre-emption may request the land registry officer to make a declaratory registration. The legislature has not set any time limit for registration.<\/p>\n<\/section>\n<section id=\"feragat\">\n<h2>Waiver of the Statutory Right of Pre-emption or of Its Exercise<\/h2>\n<p>Under Article 733\/2-3 TCC, <em>\u201cA waiver of the right of pre-emption must be made in official form and annotated in the land register. Renouncing the exercise of the right of pre-emption in respect of a particular sale is subject to written form and may be made before or after the sale.\u201d<\/em> and it is thereby provided that this right may be waived by an agreement made in official form and an annotation entered in the land registry. As a rule, the official form is fulfilled by notaries. The co-owner may also state that he or she is not waiving the right entirely but merely undertakes not to exercise it in respect of the sale concerned.<\/p>\n<div class=\"pm-ikili\">\n<div class=\"pm-kart\">\n<p class=\"pm-etiket\">Waiver of the right of pre-emption<\/p>\n<p>It must be made in official form and annotated in the land register.<\/p>\n<\/div>\n<div class=\"pm-kart\">\n<p class=\"pm-etiket\">Renouncing its exercise in a particular sale<\/p>\n<p>It is subject to written form; it may be made before or after the sale.<\/p>\n<\/div>\n<\/div>\n<\/section>\n<section id=\"fiili-taksim\">\n<h2>The Statutory Right of Pre-emption in the Case of De Facto Partition<\/h2>\n<p>The Court of Cassation has held that, in immovables partitioned de facto by the co-owners, where a co-owner sells his or her share to a third party, the statutory right of pre-emption cannot be exercised, since its exercise by the other co-owners is contrary to the rule of good faith.<\/p>\n<h3>What Is De Facto Partition?<\/h3>\n<p class=\"pm-tanim\">According to the Court of Cassation\u2019s definition, <strong>de facto partition<\/strong> <em>\u201cthe situation in which the immovable to which the share subject to the statutory right of pre-emption relates is privately partitioned among its co-owners and each co-owner uses a specific part.\u201d<\/em><\/p>\n<h3>Conditions of De Facto Partition<\/h3>\n<ol class=\"pm-adimlar\">\n<li><strong>Co-ownership<\/strong><span>As is clear from the definition, there must first of all be an immovable property subject to co-ownership.<\/span><\/li>\n<li><strong>De facto division<\/strong><span>This immovable property must have been divided de facto among the co-owners. If it has been legally divided into parcels, co-ownership will in any case no longer continue to exist. Without co-ownership, it will not be possible to speak of the existence of a statutory right of pre-emption. The immovable property may be divided horizontally or vertically. However, if the immovable property has been leased in its entirety to a third party, or if the co-owners use it together without dividing it into shares, there can be no de facto partition.<\/span><\/li>\n<li><strong>Allocation<\/strong><span>The immovable property divided de facto into shares must also have been allocated to the co-owners. In this respect, for immovable properties with a large number of co-owners, the Court of Cassation attaches importance to the existence of allocation with regard to the person selling their share and the co-owner who is the claimant exercising the statutory right of pre-emption. This is because, as a result of the de facto partition of an immovable property with a great many co-owners, each co-owner may not have an allocated share. Indeed, in a decision rendered in 2018, the Court of Cassation established the mere existence of de facto partition in the immovable property subject to the pre-emption action and held that, owing to the absence of allocation, this did not prevent the exercise of the right of pre-emption. (Court of Cassation Assembly of Civil Chambers, D. 28.2.2018, E. 2017\/14-1761, K. 2018\/407)<\/span><\/li>\n<\/ol>\n<h3>Why Is the Exercise of the Right Contrary to the Principle of Good Faith?<\/h3>\n<p>The reasoning behind the Court of Cassation\u2019s case law that the statutory right of pre-emption cannot be exercised in the case of de facto partition is that it creates a situation contrary to the rule of good faith (Article 2 TCC). On this matter, the Court of Cassation does not consider the nature of the immovable; that is, it makes no difference whether there is a building on it or whether it is a building plot or land. The Court of Cassation describes the situation contrary to the rule of good faith as follows: a co-owner who, prior to the transfer, acted in accordance with the de facto partition agreement and claimed no right over the portion allocated to the co-owner transferring his or her share, and who then exercises the right of pre-emption upon the transfer of that share, engages in contradictory conduct, which constitutes a breach of the prohibition of abuse of rights under Article 2\/II TCC.<\/p>\n<\/section>\n<p class=\"pm-dipnot\">Related legislation: <a href=\"https:\/\/www.mevzuat.gov.tr\/mevzuat?MevzuatNo=4721&amp;MevzuatTur=1&amp;MevzuatTertip=5\" target=\"_blank\" rel=\"noopener\">Turkish Civil Code No. 4721<\/a> (mevzuat.gov.tr)<\/p>\n<section id=\"sss\" class=\"pm-sss\">\n<h2>The Statutory Right of Pre-emption: Frequently Asked Questions<\/h2>\n<details open>\n<summary>What is the statutory right of pre-emption?<\/summary>\n<div>\n<p>The statutory right of pre-emption is a formative right that, where one of the co-owners of an immovable held in shared ownership sells his or her share to a third party, entitles the other co-owners to acquire the sold share on the same terms. It is regulated in TMK Article 732 et seq. and is attached to the share.<\/p>\n<\/div>\n<\/details>\n<details>\n<summary>In which cases can the statutory right of pre-emption not be exercised?<\/summary>\n<div>\n<p>According to the article, this right cannot be exercised where the share is sold to another co-owner, in sales made through enforcement proceedings, in dispositions made as a donation disguised as a sale or as an advance transfer of an inheritance share, or in transfers made by barter. A claim that the barter is simulated may be proven by any means of evidence, including witnesses.<\/p>\n<\/div>\n<\/details>\n<details>\n<summary>Against whom is a pre-emption action brought?<\/summary>\n<div>\n<p>If the share has been registered in the buyer's name, the action is brought against the buyer; if registration has not yet taken place, it is brought against the seller. If the buyer has donated the share to another person, an action may be brought against both; if the buyer has sold it to another person, an action may be brought against the last buyer within the time limit.<\/p>\n<\/div>\n<\/details>\n<details>\n<summary>If more than one co-owner exercises the right of pre-emption, how is the share divided?<\/summary>\n<div>\n<p>According to the article, the co-owners exercising the right have equal rights to the sold share, regardless of their own shares. For example, if the three remaining co-owners jointly claim the sold share, each of them benefits from one-third of that share.<\/p>\n<\/div>\n<\/details>\n<details>\n<summary>Within what time limits must the statutory right of pre-emption be exercised?<\/summary>\n<div>\n<p>The right of pre-emption lapses three months after the date on which the sale was notified to the holder through a notary and, in any case, two years after the sale. The notification obligation lies with the buyer or the seller.<\/p>\n<\/div>\n<\/details>\n<details>\n<summary>What must a co-owner who wins a pre-emption action pay?<\/summary>\n<div>\n<p>TMK m. 734\/2&#8217;ye g\u00f6re \u00f6nal\u0131m hakk\u0131 sahibi, ad\u0131na tescil karar\u0131 verilmeden \u00f6nce sat\u0131\u015f bedeli ile al\u0131c\u0131ya d\u00fc\u015fen tapu giderlerini h\u00e2kimin belirledi\u011fi s\u00fcre i\u00e7inde ve yere nakden yat\u0131rmakla y\u00fck\u00fcml\u00fcd\u00fcr.<\/p>\n<\/div>\n<\/details>\n<details>\n<summary>How does de facto partition affect the statutory right of pre-emption?<\/summary>\n<div>\n<p>Yarg\u0131tay, payda\u015flarca fiilen taksim edilmi\u015f ve paylar \u00f6zg\u00fclenmi\u015f ta\u015f\u0131nmazlarda, fiili taksime uygun davranm\u0131\u015f bir payda\u015f\u0131n daha sonra \u00f6nal\u0131m hakk\u0131n\u0131 kullanmas\u0131n\u0131 \u00e7eli\u015fkili davran\u0131\u015f sayarak TMK m. 2 uyar\u0131nca hakk\u0131n k\u00f6t\u00fcye kullan\u0131lmas\u0131 olarak de\u011ferlendirmektedir. Yaln\u0131z fiili taksim bulunup \u00f6zg\u00fclenme yoksa, Yarg\u0131tay HGK&#8217;n\u0131n 2018 tarihli karar\u0131nda hakk\u0131n kullan\u0131lmas\u0131na engel g\u00f6r\u00fclmemi\u015ftir.<\/p>\n<\/div>\n<\/details>\n<\/section>\n<section id=\"iletisim\" class=\"pm-form-kap\">\n<div class=\"pm-form-sol\">\n<p class=\"pm-etiket\">Consultation request<\/p>\n<h2>Do you have a question about the statutory right of pre-emption?<\/h2>\n<p>As UTU Hukuk Dan\u0131\u015fmanl\u0131k, we provide legal representation and advisory services in the field of Real Estate Law.<\/p>\n<p>Fill in the form and we will call you. You can also contact us directly:<\/p>\n<ul class=\"pm-kanal\">\n<li><a href=\"tel:+905365931600\">+90 536 593 16 00<\/a><\/li>\n<li><a href=\"mailto:bilgi@utuhukuk.com\">bilgi@utuhukuk.com<\/a><\/li>\n<\/ul>\n<\/div>\n<form class=\"pm-form\" data-alan=\"Gayrimenkul Hukuku\" novalidate action=\"\">\n<div class=\"pm-alan\"><label for=\"pm-ad\">Full name *<\/label><input id=\"pm-ad\" name=\"ad\" type=\"text\" autocomplete=\"name\" required><\/div>\n<div class=\"pm-alan\"><label for=\"pm-tel\">Phone *<\/label><input id=\"pm-tel\" name=\"tel\" type=\"tel\" autocomplete=\"tel\" inputmode=\"tel\" required><\/div>\n<div class=\"pm-alan\"><label for=\"pm-mail\">Email<\/label><input id=\"pm-mail\" name=\"mail\" type=\"email\" autocomplete=\"email\"><\/div>\n<div class=\"pm-alan\"><label for=\"pm-konu\">Your situation in brief<\/label><textarea id=\"pm-konu\" name=\"konu\" rows=\"4\" placeholder=\"For example: A share in a field of which I am a co-owner has been sold to a third party, and I would like to know whether I can bring a pre-emption action.\"><\/textarea><\/div>\n<div class=\"pm-bal\" aria-hidden=\"true\"><label for=\"pm-web\">Website<\/label><input id=\"pm-web\" name=\"website\" type=\"text\" tabindex=\"-1\" autocomplete=\"off\"><\/div>\n<p><label class=\"pm-onay\"><input name=\"kvkk\" type=\"checkbox\" required> <span>I consent to the processing of my personal data for this request and to being contacted.<\/span><\/label><br \/>\n<button type=\"submit\">Send request<\/button><\/p>\n<p class=\"pm-durum\" role=\"status\" aria-live=\"polite\">\n<input type=\"hidden\" name=\"trp-form-language\" value=\"en\"\/><\/form>\n<\/section>\n<footer class=\"pm-imza\">\n<div class=\"pm-imza-logo\" aria-hidden=\"true\">UTU<\/div>\n<div>\n<p class=\"pm-imza-ad\">UTU Hukuk ve Dan\u0131\u015fmanl\u0131k<\/p>\n<p>Since 2016 it has been providing legal and advisory services in Ankara in many areas, labour law in particular. <a href=\"https:\/\/utuhukuk.com\/en\/real-estate-law\/\">Our real estate law practice area \u2192<\/a><\/p>\n<p class=\"pm-uyari\">This article is for general information only and does not constitute legal advice. You are advised to consult a lawyer about your specific situation.<\/p>\n<\/div>\n<\/footer>\n<\/div>","protected":false},"excerpt":{"rendered":"<p>1. What Is the Statutory Right of Pre-emption? The statutory right of pre-emption arises in respect of an immovable held in co-ownership. It is set out in Articles 732 et seq. of the Turkish Civil Code\u2026<\/p>","protected":false},"author":1,"featured_media":386,"comment_status":"closed","ping_status":"closed","sticky":false,"template":"elementor_canvas","format":"standard","meta":{"footnotes":""},"categories":[8],"tags":[],"class_list":["post-208","post","type-post","status-publish","format-standard","has-post-thumbnail","hentry","category-gayrimenkul-hukuku"],"_links":{"self":[{"href":"https:\/\/utuhukuk.com\/en\/wp-json\/wp\/v2\/posts\/208","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/utuhukuk.com\/en\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/utuhukuk.com\/en\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/utuhukuk.com\/en\/wp-json\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/utuhukuk.com\/en\/wp-json\/wp\/v2\/comments?post=208"}],"version-history":[{"count":4,"href":"https:\/\/utuhukuk.com\/en\/wp-json\/wp\/v2\/posts\/208\/revisions"}],"predecessor-version":[{"id":660,"href":"https:\/\/utuhukuk.com\/en\/wp-json\/wp\/v2\/posts\/208\/revisions\/660"}],"wp:featuredmedia":[{"embeddable":true,"href":"https:\/\/utuhukuk.com\/en\/wp-json\/wp\/v2\/media\/386"}],"wp:attachment":[{"href":"https:\/\/utuhukuk.com\/en\/wp-json\/wp\/v2\/media?parent=208"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/utuhukuk.com\/en\/wp-json\/wp\/v2\/categories?post=208"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/utuhukuk.com\/en\/wp-json\/wp\/v2\/tags?post=208"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}