The right of ownership is the widest right on a real estate and
it entitles its holder usage, utilization and disposal rights. The
ownership right can be limited under some circumstances. Such
limitation can arise from the law or an agreement. The right of
pre-emption is one of these limitations and is regulated under the
Turkish Civil Code numbered 4721 dated 22.11.2001
How many types of pre-emption rights are defined?
As stated above, the pre-emption right can arise either from law
or from an agreement. The pre-emption right arising from law is
called statutory pre-emption right. Article 732 of the TCC states
that in case a party of a joint ownership on a real estate sells
its shares partially or completely to a third party, the other
parties of the other joint owners can exercise their pre-emption
The other type of the pre-emption right is contractual
pre-emption right. According ot the article 735 of the TCC, the
contractual preemption right annotated to land registry can be used
against any future owner of the property under the conditions
stated in the annotation.
How can the preemption right be exercised?
Pursuant to the Article 734, in order to use the preemption the
right owner shall file a case against the new owner. The case
should be filed before the courts where the real estate is located
and the claimant, who is the pre-emption right holder, shall
deposit the sale price and the registration expenses to the account
determined by the court.
In case there is a contractual pre-emption right, the sale price
can be determined in the agreement. If there is no provision in the
agreement, the sale conditions between the seller and third party
buyer shall apply.
Is there any time limitation to file the case?
In joint ownerships the transfer shall be notified to the other
parties via notary and the case should be filed within three months
after the receipt of such notice and in any case within 2 years
after the transfer of the real estate. After this period the
pre-emption right holder cannot use its pre-emption right. Such
limitation is applicable for both the statutory and contractual
The TCC also provides that annotations in the land registry
about contractual pre-emption rights are valid for ten years after
the annotation of pre-emption right.
Can the pre-emption right owner waive its right?
The waiver is only valid if it is made in official form required
by law and annotated to the land registry. On the other hand in
case the right owner is waiving its right in a particular sale, the
waiver can be given before or after the transfer.
Is there any restriction on exercising the preemption
According to the Article 733 of the TCC, if the real estate is
sold by auction through execution proceeding by the Execution
Offices the pre-emption right cannot be used.
What happens if there are more than one pre-emptive right
holder of a joint ownership using their preemption rights?
In a joint ownership, every owner has the preemption right. The
question is what will happen when more than one owner is willing to
use its preemption right. Pursuant to the decision of Joint
Chambers of the Appeal Court dated 11.06.1947 and numbered 5/8,
each owner will acquire the sold shares at an equal rate and their
share percentage on the real estate will not be taken into
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.
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