With the Law numbered 7413 Amending the Law on Judges and Prosecutors and Certain Laws ("Omnibus Law") published under the Official Gazette dated June 28, 2022 and numbered 31880, some significant amendments have been introduced to the Notary Public Law numbered 1512 and dated January 18, 1972 ("Law"). With the aforementioned amendments, the procedures and principles regarding the appointment, removal, initiation of duty or resignation of notary publics and the execution of immovable sales agreements before notary publics have been regulated. The fact that immovable sales agreements are now allowed to be executed before the notary publics is a significant development, and the amendments made to the Law by the Omnibus Law are discussed under this information note.
In order for the sales of the immovables to be valid, the agreement is required to be officially drawn up. Prior to the amendment made by the Omnibus Law, while the land registry officers were authorized to draw up the agreements regarding the transfer of immovable property pursuant to Article 26 of the Land Registry Law No. 2644, the notary publics were not authorized to draw up the immovable sales agreements. However, in practice, the authority of the notary publics to draw up immovable sales agreements had been a matter of debate which, with the new regulation, has ended and notary publics have been given the authority to draw up immovable sales agreements.
In addition to the notary publics' current authority to draw up preliminary agreements for immovable sales, notary publics, with the aforementioned amendment, are now authorized to draw up immovable sales agreements by annotating the land registry through the land registry information system, if one of the contracting parties demands and pays the fees and expenses. The transactions with respect to the immovable sales agreements will be made by the notary publics, and if the holder of the right cannot be determined from the land registry abstracts and other documents, or if there is a legal situation that prevents the sales, the sales will not be carried out by the notary publics. Thus, the notary publics will issue an application document upon the immovable sales application, and if there is no restriction on the transfer of the immovable, the notary publics will draw up the immovable sales agreement and record it in the land registry information system. Since the changes of the records in the land registry and the registration to the land registry are left to the land registry directorates, the registration of the agreement registered to the system by the notary publics will be concluded by the land registry directorates. It is clearly stated under the Omnibus Law that no fees other than the notary fee will be charged within the scope of these transactions. In accordance with the Omnibus Law, although the notary fee varies according to the value of the immovable, it cannot be less than five hundred Turkish Liras and more than four thousand Turkish Liras. These amounts will be increased each year at the revaluation rate determined and announced in relation to the previous year, effective from the beginning of the calendar year.
With the additional paragraph added to the article 162 of the Law, it is decided that the notary publics will be responsible for the damages caused by the drawing up of the immovable sales agreements, and the competent court for the lawsuits to be filed against the notary publics is determined as the place where the land registry is located. In the aforementioned additional paragraph, it is also stipulated that the Administration will revoke to the notary publics who drawn up the agreement, if the Administration compensates the damages caused by the drawing up of the immovable sales agreements.
The amendment will enter into force as of the announcement of the establishment of the relevant information system on the official website of the Ministry of Justice, and it is regulated that the information system will be established until January 1, 2023, however, this period may be extended by the President of the Republic of Turkey up to six months.
The procedures and principles regarding immovable sales transactions to be carried out by the notary publics will be regulated by the regulation to be issued by the Ministry of Justice by taking the opinion of the Ministry of Treasury and Finance and the Ministry of Environment, Urbanization and Climate Change. We state that the announcement to be made with respect to the information system and the regulation to be issued are important as it will cause a major change in practice.
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