The dissolution of co-ownership, known as izale-i şuyu in Turkish law, is a common legal procedure that arises when multiple individuals share ownership of property—whether movable or immovable—and can no longer manage it collectively. Most often encountered in inheritance scenarios, but also relevant in forced sales and other situations, this process aims to convert joint or common ownership into individual ownership. When a mutual agreement among co-owners is unattainable, the law provides mechanisms for partitioning or selling the property and distributing the proceeds. In this article, we thoroughly examine the legal framework, practical procedures, and noteworthy case law surrounding the dissolution of co-ownership in Turkey.
Legal Framework for Dissolution of Co-Ownership
The Turkish Civil Code provides the statutory foundation for the dissolution of co-ownership, even if the term izale-i şuyu is not directly stated in the legislation. The most relevant provisions include:
- Article 698: Unless a legal transaction or the property's permanent allocation requires co-ownership to continue, each co-owner has the right to request partition. This right can be contractually limited for up to ten years for immovables, provided the agreement is made in the required official form and annotated in the land registry.
- Article 699: Partition can be carried out by physically dividing the property or, if this would cause undue loss in value or is not feasible, through sale (typically by auction) and distribution of the proceeds according to shares.
- Article 642: For inheritance matters, each heir may seek partition unless an agreement or the law dictates otherwise. If physical division is not possible, the property is sold and the income distributed.
Reasons for Filing a Dissolution of Co-Ownership Lawsuit
A dissolution lawsuit is generally brought when co-owners cannot reach a consensus about the use, management, or disposition of jointly owned property. This is especially common with inherited assets, where disagreements between heirs are frequent. The lawsuit enables a party to exit the co-ownership and realize the value of their share.
Typical scenarios include:
- Multiple heirs inheriting a family property, but disagreeing on its use or sale.
- Co-owners of an investment property who can no longer cooperate.
- Joint owners after a forced sale or public acquisition.
Types of Co-Ownership
Joint Ownership (Elbirliği Mülkiyeti)
In joint ownership, as commonly seen among heirs before partition, no individual shares are specified. All decisions regarding the property must be unanimous. This form often arises automatically upon the death of a property owner, with all heirs collectively owning the estate's assets.
Example:
If three siblings inherit a house, initially, they hold it in joint
ownership. Any action—such as renting out or
selling—requires agreement from all.
Common Ownership (Paylı Mülkiyet)
Here, each co-owner owns a specific share (e.g., 1/3 each), even if the property is not physically divided. Each can sell or encumber their share independently, but cannot unilaterally alter the property's use.
Example:
If two friends buy land together and register it as 50-50 in the
land registry, each can transfer their share without the
other's consent.
Methods of Dissolving Co-Ownership
The law provides two main methods for dissolving co-ownership:
Partition in Kind (Aynen Taksim)
If the property can be divided without significant loss in value, the court may order its physical partition. This is feasible for divisible assets like large plots of land or cash. Any difference in value between the divided portions can be compensated with a payment to balance shares.
Practical Example:
A 6000-square-meter field inherited by three siblings may be split
into three 2000-square-meter parcels, provided each is of
comparable value.
Sale and Distribution of Proceeds (Satış Suretiyle İzale-i Şuyu)
If physical division would cause a significant decrease in value or is impractical (as with a single apartment or small house), the court may order a sale, usually via public auction. The net proceeds, after deducting expenses, are distributed among the co-owners based on their shares.
Practical Example:
If three siblings inherit a single apartment, selling it and
dividing the proceeds is generally the only practical solution.
Special Considerations in Inheritance
For inherited properties, co-ownership among heirs is governed by special rules. Before partition, heirs must obtain a certificate of inheritance. The court, when asked, may allocate assets in kind if feasible, or order a sale if not. Heirs may also request the conversion of joint ownership to common ownership, which is often a step toward easier management or sale.
Who Can File and Against Whom?
Any co-owner, regardless of the size of their share, may initiate a dissolution lawsuit. The case must be brought against all other co-owners, including new heirs if a co-owner has died. If one or more co-owners cannot be reached, the court may permit notification by public announcement.
Important Note:
All co-owners must be included for the process to be legally valid.
Failure to notify even one may invalidate the proceedings.
Competent Court and Jurisdiction
Dissolution cases are heard by the Civil Court of Peace (Sulh Hukuk Mahkemesi) with jurisdiction over the location of the property. If multiple properties are involved, a suit can be filed in the court covering any of them.
Requirement for Mediation
Since September 1, 2023, Turkish law mandates attempting mediation before filing a dissolution lawsuit. If parties do not participate in mediation, the court will dismiss the case due to lack of procedural requirements.
Determining Value and Sales Process
When a sale is required, the court obtains expert reports to determine the property's market value. This value sets the initial auction price. Co-owners may object to the valuation if they believe it is inaccurate. After the final value is set, the sale proceeds and the funds are distributed.
Real-World Example:
If a property's value is set at 2,000,000 TL, the auction may
begin at 1,000,000 TL (50% of appraised value). If the auction
yields 2,100,000 TL, this amount is split among the co-owners
according to their shares.
Costs, Fees, and Attorney's Fees
Court fees, notification (tebligat) expenses, and expert witness fees are shared proportionally among all co-owners. Attorney's fees are likewise divided, and minimum amounts are specified by local bar associations. For example, Ankara and Istanbul Bar Associations set minimum fees both as flat amounts and as a percentage of the share's value.
Timeline for Dissolution Cases
The duration of a dissolution case can vary. In simple cases where all co-owners participate and no objections arise, a case may be resolved within 1 to 1.5 years. If appeals or additional disputes occur, the process may extend several years.
Special Issues: Notification and Foreign Co-Owners
If a co-owner cannot be located, Turkish law allows for notification by public announcement. For co-owners living abroad or who have lost Turkish citizenship, notifications may require translation and additional time.
Agricultural Land and the "Qualified Heir" Rule
Special rules apply to agricultural lands, aiming to prevent excessive fragmentation. If heirs cannot agree, the court may assign the land to a "qualified heir" (e.g., the one most capable of farming), with compensation paid to others. If no qualified heir exists, the land may be sold to third parties.
Creditors' Rights in Dissolution Cases
Creditors of a co-owner may, under certain conditions, request partition or sale to satisfy debts. However, the scope of this right depends on whether the property is held in joint or common ownership.
Notable Supreme Court Decisions
The Turkish Supreme Court has clarified several important principles in recent years:
- Distribution of Proceeds: In cases involving both joint and common ownership, proceeds must be allocated according to shares recorded in both the land registry and inheritance certificate.
- Partition vs. Compensation: When physical partition is possible, value discrepancies must be compensated to ensure fairness.
- Integration with Other Cases: If related lawsuits (such as title cancellation) are pending, the court may suspend the dissolution process until their resolution.
- Separation from Other Claims: Dissolution lawsuits must be kept separate from claims for damages or unpaid rent.
Practical Tips for Individuals Facing Co-Ownership Disputes
- Gather Documentation: Ensure all ownership records and inheritance certificates are up to date.
- Attempt Negotiation First: Amicable settlements can save time and money.
- Understand Mediation Requirements: Initiating mediation has become a legal prerequisite.
- Consult an Attorney: Especially for complex or contentious situations, professional legal guidance is highly recommended.
- Be Aware of Costs: Prepare for court fees and potential delays, particularly if there are many co-owners or foreign parties involved.
Conclusion
Dissolution of co-ownership is a vital remedy for resolving deadlocks among joint or common owners of property in Turkey. The process is governed by detailed legal rules and enriched by extensive case law. Understanding the nuances—especially distinctions between joint and common ownership, partition methods, and special rules for agricultural land—can help co-owners navigate the process effectively. When consensus is impossible, Turkish law offers clear, fair procedures to ensure that every co-owner's rights are respected and that individual ownership or equitable compensation can be achieved.
References:
- Turkish Civil Code (Articles 688-699, 642, 644)
- Turkish Code of Civil Procedure
- Turkish Supreme Court (Yargıtay) Decisions
- Local Bar Association Fee Schedules
- Mediation Law No. 6325
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.
