Ensuring the debt security is one of the main fundamentals under the modern-day economical transactions. The Turkish Civil Code ("TCC") numbered 4721 regulates the mortgage as one of the debt security tools.
1. WHAT IS A MORTGAGE?
Mortgage is a limited real right which secures a debt that gives a lender the right to force the sale of the mortgaged property and collect the debt owed from the foreclosure proceeds when the debt is not paid on due time. A mortgage can be established over immovable properties to secure the payment of existing or potential obligations, including monetary obligations or obligations of performance or non-performance of an action.
2. WHAT ARE THE TYPES OF THE MORTGAGE UNDER THE TURKISH CIVIL CODE?
There are 2 types of mortgage under the TCC due to the determination of amount of the security.
- Principal Amount Mortgage
- Limit Mortgage
Mortgage can be used for securing an existing/future debt or for securing the debts the amount of which is indefinite or definite.
Limit mortgage is mostly established for securing the receivables of which the amount is not definite. Limit mortgage is established to secure the potential debt.
The amount of the limit mortgage is determined by the parties and registered to the land registry. Such amount represents the upper limit that will correspond to all claims, including the interest and other secondary claims of the mortgagee secured by the mortgage. During the establishment of limit mortgage, the upper limit securing the receivables is determined and registered in the land registry records of the relevant real property. Accordingly, the upper limit indicated in the land registry sets the highest amount that could be collected by the mortgagee out of the mortgage proceeds. Even if the total amount of the proceeds is more than the upper limit set by the mortgage, the mortgagee can collect the proceeds up to the limit although the total of the principal amount, interest, legal costs, etc. is more than the upper limit.
Principal mortgage assures the payment of principal amount, costs related to the execution proceedings and default interest. In other words, the creditor is entitled to collect the incurred interest and costs relating to execution proceedings in addition to the principal claim amount stated in the mortgage deed.
The mortgagee can enforce the foreclosure sale either by enforcement proceedings with judgment or enforcement proceedings without judgment.
Principal mortgage foreclosure is made by enforcement proceedings with judgment, which can be finalized in 6 months.
On the other hand limit mortgage foreclosure proceeding is made without judgment and this period may take up to 2- 3 years because of the finalization process. Briefly in this type of mortgage foreclosure if the mortgagee or the owner of the real property does not make an objection to order of payment within 7 days or does not pay the debt within 30 days, then the enforcement proceeding becomes definite, and debtor shall request to foreclosure sale of real property. Another possibility is debtor and the owner of the real property shall object to enforcement within seven 7 days. So the mortgagee may file a lawsuit in order to bring an annulment action of objection by means of proving of existence of receivable within 1 year from the date of notification of objection. Principal mortgage foreclosure proceeding does not include the objection process above.
3. WHAT ARE THE NECESSARY DOCUMENTS TO CREATE A MORTGAGE?
- Title deed or a document, which indicates the block, plot and layout of the real property,
- The owner of the real property must submit a written application to the Title Deed Registry to register a mortgage in favor of the debtor,
- Parties (debtor and debtee) need a written agreement. This agreement should consist the amount of the mortgage,
- The agreement needs to be annotated over a real property with the records of the relevant Title Deed Registry where the real property subject to mortgage is registered,
- Owner of the real property's or his/her legal representative's identity card or passport,
- Debtee' s or his/her legal representative's identity card or passport,
- Photograph for real persons,
- Mandatory natural disaster insurance.
Following the carrying out of the above conditions the mortgage agreement is recorded in the mortgage column of the relevant Title Deed Registry Record.
4. IS IT POSSIBLE TO CREATE A MORTGAGE IN FOREIGN CURRENCY?
In principle, the amount of the mortgage is required to be registered in Turkish Lira. According to Article 851/II of the Turkish Civil Code, in the event the mortgage is to be registered as a security for a foreign currency cash loan to be obtained by a borrower resident in the Republic of Turkey from a credit institution conducting business within the Republic of Turkey or abroad, the amount of the mortgage can be registered in foreign currency, which should be the same currency as the loan.
5. WHAT IS THE DEGREE SYSTEM?
In Turkish law, degree system is accepted for mortgages. While a mortgage is established on a real property, the real property is divided into hypothetical value parts called "degrees". In the event of a foreclosure sale of the mortgaged property mortgagees are satisfied in order of degree. For instance a second-degree mortgagee is satisfied with the remaining amount from the foreclosure sale after the first-degree mortgagees are fully satisfied.
The mortgage is regarded as fixed degree system mortgage unless otherwise is stated in the mortgage deed. In the fixed degree system the mortgage does not move up to the removed degree and the discharged degree remains vacant. A new dated mortgage can be established and replace the vacant degree. This can be considered as the downside of the old dated fixed degree mortgages. A right to benefit from upper degree may be determined in the official mortgage deed. Unless there is such agreement between the mortgagee and the mortgagor, the mortgage in the following degree may not move to the degree to the cancelled mortgage.
6. WHAT IS THE COST FOR ESTABLISHING THE MORTGAGE?
Below fees need to be paid to the relevant authorities before establishing a mortgage.
Proportional title deed fee; the fee is calculated over 0.455% of the mortgage amount stated in the mortgage deed.
Fixed land registry fee changes for each province but usually not more than Turkish Lira equivalent of € 80.(may vary depending on the currency rates)
Following the said payments, relevant receipt is submitted to the land registry along with the original the receipt evidencing the payment of the stamp duty to the tax office (0.948% over the total amount of the main agreement constituting the basis of the mortgage.)
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.