Turkey: Judicial Partition Of Property – Partition Suit Under Turkish Civil Law

Under Turkish Law, where a group of individuals share ownership in an asset, a situation of joint-ownership arises. While Article 688 of the Turkish Civil Code ("TCC") deals with the notion of joint ownership (paylı mülkiyet in Turkish), Article 701 TCC deals with the concept of tenancy in common (elbirliği ile mülkiyet in Turkish).

The most significant difference between joint ownership and tenancy in common regimes is how the ownership is distributed throughout the property. In joint ownership regime, owners have their defined pieces of property whereas in tenancy in common, each owner has a part of ownership in each piece of the property. Although it is possible to buy a property through joint ownership or tenancy in common regimes, in practice, inheritance is one of the most common reasons that leads to a tenancy in common regime. As such, tenancy in common (as well as joint ownership) is considered to be one of the most complex property regimes which may give rise to a number of problems in practice with regard to its partition. Since both tenancy in common and joint ownership can be subject to a partition lawsuits, this article will jointly refer the two ownership types as "joint ownership".

Joint-owners of a property can make a request for partition at any time, pursuant to Article 642 and 698 of TCC. It is important to note that such a request is not subject to any temporal limitation. Pursuant to Articles 698-699 of TCC, in case joint-owners fail to proceed with partition by means of agreement, a partition suit allows the transition from common ownership to individual ownership.

Particular attention must be paid to the unique procedural rules which govern the suit of partition due to its sui generis nature. This article will (I) discuss the procedural rules applicable to the partition suit, (II) lay out the impediments that limit the right to bring an action for partition, and (III) consider the possible legal outcomes of a partition decision.

I. Rules of Procedure and Practical Considerations

Pursuant to Article 4 of the Turkish Code of Civil Procedure ("TCCP"), as a general rule, the Civil Courts of Peace have authority over partition proceedings regardless of the monetary value of the lawsuit.[1] The courts of the place where the immovable property in dispute is situated are competent pursuant to Article 12. The subject-matter of the suit of partition takes the form of any type of immovable property and the rights thereof, subject to joint-ownership.

It is important to note the partition suits have a sui generis, double-sided nature. The double-sided – actio duplex – nature of partition proceedings has a number of legal consequences. First of all, the action is brought by an owner or a group of owners which request partition against the owner or group of owners who refuse partition. In other words, subjective partition is not an option; all owners must be party to the lawsuit. Second, the partition decision is equally applied to all parties to the proceedings and gives rise to the same legal consequences for all. Third, all parties possess the same rights and obligations with regard to the proceedings. For instance, the defendant's requests regarding the partition method should also be taken into account in addition to the claimant's requests.[2] Similarly, all parties contribute to litigation costs and attorney fees in accordance with their amount of shares, since there is no winning or losing party in these suits. Lastly, while the general rule under Turkish law of civil procedure is that waiver by the claimant has the effect of a finalized judgement,solely the claimant's waiver in a partition suit does not preclude the counter-party from resuming the proceedings.[3]

II. Impediments to Bringing an Action for Partition

There are certain situations where it is not possible to bring an action for partition of a jointly-owned property. Such impediments can be divided into two categories. These are (i) legal transactions and (ii) statutory limitations. It is not possible to bring a partition suit while an agreement for the continuation for the joint-ownership concluded between the parties, remains in force. The same goes for an agreement providing amicable partition. That said such agreements can limit the request for partition for 10 years utmost. A number of statutory provisions such as provisions related to condominiums may also constitute impediments. For example, as per Article 7 of the Law on Property Ownership No. 634 ("LPO") in case the property is subject to condominium regime or construction servitude (kat irtifakı in Turkish), elimination of joint ownership cannot be requested.

It is important to note that a party to a partition suit cannot request partition of a section of the property.[4]  During partition, fixtures (bütünleyici parça in Turkish) of a property will also be added to the value and the court will order the sale of these fixtures. That said, if they belong to one of the owners, then the owner of the fixture will receive an equalization payment.[5] 

III. Possible Legal Outcomes of a Partition Decision

During a suit for partition of a jointly-owned property, parties may agree on how they wish to divide the property. In the absence of such an agreement, it is up to the competent Civil Court of Peace to bring the ownership to an end, which can take 2 forms: partition in kind (also including the possibility to establish a condominium regime) and partition by sale.

(a) Partition in Kind

It is sufficient that only one of the parties requests partition in kind for effect to be given to such request. In that case, the court must first establish whether the conditions for partition in kind are fulfilled (Article 699/2 TCC) with regard to the features of the property, such as its surface area, characteristics, number of joint-owners and number of shares, the features of agricultural estates, etc. In case it is established that partition in kind would cause considerable loss in the value of the property, the court will be precluded from ordering partition in kind. Furthermore, it is not possible for a portion of the property to be left under joint-ownership.[6]

Where it is established that partition in kind is possible, if there are imbalances between the value of each tenant's resulting personal property, a balance may be established by transfer of monetary consideration between parties. It is crucial to emphasise that, throughout the entire partition procedure, the court must take into account both the claimants' and the defendants' requests regarding the manner in which partition is to be effected and the allocation of various portions of the succession amongst right-holders.[7]

Pursuant to Article 10 of the LPO, where a joint-owner requests the establishment of a condominium regime on a jointly-owned property, the court must determine whether such a partition is suitable with regard to the characteristics of the property in question, i.e. the structures which constitute the immovable property are duly completed following their architectural project and each of the independent sections must be favourable to individual use.[8] The court can order of the party requesting condominium to provide the necessary documents in order to prove the suitability of the immovable property in question. An expert assessment can be ordered by the court. If it appears that the property is suitable for condominium, a transition from joint-ownership to condominium is effected by the court after submission of the documents stated in Article 12 LPO, and independent sections are allocated to the parties after equalising the shares thereof.

(b) Partition by Sale and Allocation of the Sale Value

It has been long accepted in light of Article 699 TCC that partition in kind is preferred over partition by sale. If it appears that partition in kind is not possible or could result in the considerable devaluation of the jointly-owned property, the court must order partition by sale of the property (Article 699 of TCC). Parties may unanimously agree for the sale to take place exclusively amongst the joint-owners.

The partition suit is a legal action which ensures an equal protection of the rights of all owners of the property. Due to its unique, actio duplex nature, this suit has a sui generis nature. This article attempted to set out the fundamentals of the partition suit, as well as shed light on its most topical aspects.

White Collar Irregularities

Recent Developments in the Anti-Corruption Regulations in France and Germany

Since the enactment of the Foreign Corrupt Practices Act ("FCPA") on 1977, USA has been the leading the international fight against corruption. FCPA sets forth a standard for other jurisdictions in its extraterritorial and rigorous enforcement of its rules and regulations against corruption. In addition, OECD Convention on Combatting Bribery of Foreign Public Officials in International Business Transactions ("Convention") has been another push force in the field, obliging its signatories on a global scale to strengthen their laws to fight international corruption. Following the US leadership and acting under the awareness raised by the Convention on the issue, recent years witnessed legislative developments from many countries which sought more effective ways of fighting corruption.  This article will focus on two of the most recent legislative updates in the arena of fighting corruption, namely, the developments in France and Germany.

France

Throughout the years, many French companies faced with FCPA related allegations and sanctions. Alstom, Total SA and Technip SA are the three French companies, which are in the ten largest FCPA enforcement actions list.[9] All three companies agreed to pay more than $300 million to settle the FCPA charges.  In addition, Transparency International's Exporting Corruption Report of 2015 criticizes French anti-corruption law because of lack of enforcement of the foreign bribery offence.[10]

France has a new law reform regarding anti-corruption matters on the way. The new law is called Sapin II, named after the Minister of Finance, who introduced the new law to the Council of Ministers of France. Before delving in the reforms that will be enacted with the new law, we hereby briefly mention current anti-corruption regulations of France to provide an overview. Currently, the Penal Code regulates both passive and active bribing of national and foreign officials. Gift giving and facilitating payments are also sanctioned under French Penal Code. The French law only applies to its citizens or businesses incorporated in France in foreign countries, if these acts are punishable under the legislation of the country, where the crime was committed. This is a much criticized aspect because it prevents the application of the anti-corruption regulations on French citizens in a foreign country in case they perpetrate the crime of bribery of foreign public officials. 

What are the main reforms in Sapin II?

Sapin II is a reformatory law bearing traces of FCPA and United Kingdom Bribery Act ("UKBA"). 

As mentioned above, the most criticized regulation of the French law i.e. the impediments with regard to the enforcement of crime of bribery of foreign public officials will not be applicable once Sapin II is in force. The requirement, which demands that the conduct can only be punishable in France, unless it is punishable in the country, where the conduct was committed, will be abrogated.

One of the most important reforms proposed by the Sapin II is the obligation to have anti-corruption compliance programs for companies with more than 500 employees and have an annual gross profit exceedingEUR 100 million in order for them to detect and deter irregularities. These compliance programs should integrate the below elements:

  1. A code of conduct depicting the anti-corruption policy of the company, including what to do and what to avoid,
  2. A whistleblower system,
  3. A regularly updated risk assessment for the ever-changing corruption risks,
  4. Reviewing clients and third parties  from an anti-corruption perspective,
  5. Internal and external accounting controls in order to identify the irregularities in the books and records of the company,
  6. Anti-corruption training for employees and managers,
  7. A policy regarding the disciplinary actions for the employees, who are engaged in the illicit activity.

Incompliance with the above-mentioned compliance program obligations can give rise to liabilities for the executives and managers of the incumbent companies. These individuals and also the company may be sentenced to pay penalties and injunctions may be imposed.

In terms of the enforcement authority, Sapin II proposes the establishment of a brand-new anti-corruption agency. Currently, Service Central de Répression de la Corruption ("Service") is the authority to deal with the anti-corruption matters whose originally vast powers were reduced and which was put in a more passive position through court decisions. The agency will have supervisory authority on companies such as to control the implementation of a compliance program. Unlike the Service, which did not have the authority to investigate or prosecute, the proposed agency is aimed to be more involved in the enforcement and have the authority to conduct investigations and impose sanctions. 

Protecting whistleblowers is indispensable for obtaining vital information regarding possible wrongdoings within a company.   Sapin II proposes banning retaliation against whistleblowers. Currently there is discussion as to whether a system awarding whistleblowers, similar to the system in US, should be legislated. 

In addition to the sanctions that are already in place, Sapin II proposes harsher sanctions both for individuals and companies. The entities will be obligated to implement a compliance program and the agency will control the implementation. 

Whether the reforms should set up a system for Deferred Prosecution Agreements ("DPAs") is an issue much debated in France.  Although a first draft of the Sapin II contained provisions setting out a DPA system, the relevant provisions were subsequently removed since they were not deemed to be in the best interest for justice. 

With this new law the French anti-corruption regulations are aimed to be more up-to-date and deterrent against national and international corruption.

Germany

According to Transparency International's Exporting Corruption Report, Germany has an active enforcement of anti-corruption laws. Under German law, active and passive bribery and also bribery of foreign officials are prohibited. Similar to Turkish law, German law does not recognize criminal liability for companies. Instead, companies are held civilly liable. In recent years, Germany reformed its anti-corruption regulations in several aspects and the new law entered into force in 25 November 2015. With this law (i) the scope of foreign official has been extended, (ii) changes regarding private sector has been made and (iii) reforms for money laundering have been enacted.

German Law against Corruption, which entered into force in late 2015, regulates that European Officials too, will now be considered as German officials within scope of corruption crimes. This means that even if a certain official may not be a German citizen, the German Law against Corruption will apply to them nevertheless. In addition, with the new law foreign officials who accept bribes can be prosecuted in Germany. Further, German law now can be applied to offences committed by a German citizen abroad or by European public officials who have their office in Germany.

Another change was in the private sector. Previous law did not cover the private sector bribes that were evaluated to be outside the scope of market competition. Following the enactment of the new law, private to private bribery now includes cases where accepting or giving any benefits without the business owner's consent leads to a breach of duty. Accordingly, accepting or giving any benefits during the scope of a business without the business owners' consent is prohibited and disruption of market competition is not a requirement.

The new law introduced reforms regarding money laundering too. Before the new law, it was not a crime for a person to launder money in the context of their own crimes. The new law criminalizes this offence called "Self-money laundering". In addition, the new law extends the catalogue of relevant predicate offences (such as accepting and giving bribes in the scope of commercial businesses) for money laundering. 

Conclusion

Although legislative documents such as the FCPA or the Convention set out the basics for how to fight international corruption, there is not a pre-defined formula for establishing framework for the most effective fight against corruption. Once the minimum thresholds are met (such as criminalizing foreign bribery, establishing a form of liability for legal persons etc.) each jurisdiction is free to fill its own legislative and enforcement gaps.  Within this scope, France and Germany are the latest countries to increase their efforts to fight corruption. Much like the legislators who work to ameliorate their legislations for fighting corruption, companies active / headquartered in France and Germany should also be vigilant about these legislative developments and adapt to the changing environment.


[1] Y6.HD 13.07.1954 199-3740.

[2] HGK 30.01.1991 520/11.

[3] Y6.HD. 16.10.1995 – 9599/9863; Y6.HD. 12.2.1996- 1099/1285

[4] HGK 05.06.1996 E. 1996/6-350 K. 1996/450

[5] Y6.HD. 16.1.1996- 12816-194

[6] HGK 05.06.1996 E. 1996/6-350 K. 1996/450

[7] HGK 08.02.1995 182/48

[8] Y18.HD 09.02.2006 2005/10996 E 2006/774 K; Y18.HD 09.06.2005 2005/3934 E 2005/6070 K.

[9] http://www.fcpablog.com/blog/2016/2/19/heres-our-new-top-ten-list-with-vimpelcom-landing-sixth.html

[10] http://www.transparency.org/exporting_corruption/France


This article was first published in Legal Insights Quarterly by ELIG, Attorneys-at-Law in September 2016. A link to the full Legal Insight Quarterly may be found here.

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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