In certain cases arising from law or agreement between the parties, a movable or immovable asset may be held under co-ownership or joint ownership by multiple individuals. However, maintaining such shared ownership over a long period may not always be feasible. For this reason, one or more of the co-owners may file a partition action in Turkey, also known as the elimination of joint ownership case, to dissolve the shared ownership. In this article, we will define what partition action means, discuss the legal requirements for partitioning under shared ownership and joint ownership, examine the grounds for dismissal, outline the available methods of distribution, and finally address frequently asked questions.
What Is a Partition Action?
Partition action is a legal term that refers to "the dissolution of co-ownership over a property." In this sense, a partition lawsuit in Turkey refers to a legal remedy that enables the termination of co-ownership over a property by court order, allowing a co-owner either to have their share registered under their sole ownership or to receive the proceeds from the sale of their share.
Co-ownership may take the form of either shared ownership (paylı mülkiyet) or joint ownership (elbirliği mülkiyeti). The definition and procedure for each will be addressed accordingly below.
Requirements for Filing a Partition Action in Turkey
To initiate a partition action in Turkey, the following conditions must be met:
1. Existence of Co-Ownership
The subject property must be jointly owned by more than one person, either under shared or joint ownership. The property may be a movable asset such as a bank account, vehicle, jewelry, or securities, or an immovable asset like a house, land, or plot.
2. Evidence of Plaintiff's Ownership
The co-owner filing the lawsuit must submit documents proving their ownership share. For immovable property, a land registry record suffices; for inheritance-related disputes, a certificate of inheritance may be required.
3. Disagreement Between Co-Owners
Although co-owners can dissolve the shared ownership by agreement, disputes often arise regarding the management or use of the asset. A lawsuit may be filed when such disagreements occur.
4. No Legal Bar to Filing
If there are legal impediments to partition listed under Article 698 of the Turkish Civil Code the lawsuit cannot proceed. These will be detailed below.
5. Proper Representation of All Parties
The lawsuit may be filed by one or more co-owners, but all other co-owners must be included as defendants. If one of the co-owners has died, all heirs must be involved in the case. Failure to include all relevant parties renders the case procedurally invalid.
6. Mandatory Mediation
According to Law No. 6325
"In disputes concerning the division or partition of movable and immovable property, application to mediation prior to litigation is a mandatory condition."
Thus, any partition lawsuit filed without prior mediation will be dismissed due to lack of a procedural requirement.
Partition in Shared Ownership
Under Article 688 of the Turkish Civil Code, shared ownership is defined as:
"In shared ownership, multiple persons hold ownership of the entire undivided property in specific shares. Unless otherwise agreed, the shares are presumed to be equal. Each co-owner has the rights and obligations of an owner with respect to their individual share. A share may be transferred, pledged, or seized by creditors."
Even though the asset is not physically divided, each co-owner may exercise all ownership rights over their share. If the asset cannot be sold due to disagreements or if one co-owner infringes on others' rights, partition may be sought via court through either physical division (in kind) or sale.
Partition in Joint Ownership
Article 701 of the Civil Code defines joint ownership as:
"In joint ownership, the co-owners do not have individual shares; each co-owner's right extends over the entirety of the property."
Joint ownership typically arises by law—most commonly in inheritance situations.
Under Article 702/2, all decisions regarding management and disposition of jointly owned property require unanimous agreement. Since unanimity is difficult in practice, joint ownership is first converted to shared ownership, after which a partition action in Turkey may be filed.
Converting Joint Ownership to Shared Ownership
Conversion is possible in two ways:
1. Application to Land Registry
Pursuant to the provision set forth in Provisional Article 3 of the Cadastre Law, co-owners may apply to the land registry office to request the conversion of joint ownership into shared ownership. In such cases, the land registry office notifies the other co-owners, and if no objection is raised by those notified, the immovable property is re-registered as shared ownership. As seen, this procedure allows the conversion only if all co-owners give their consent.
2. Court Decision
The alternative route is to file a court application. In this case, one or more co-owners may petition the court under Article 644 of the Turkish Civil Code to request the conversion of joint ownership into shared ownership. The court will then serve notice to the remaining co-owners, informing them of their right to raise objections. If no convincing objection to the continuation of joint ownership is presented, the court will order the conversion of the property to shared ownership.
Grounds for Dismissal of Partition Lawsuits in Turkey
Article 698 of the Civil Code lists scenarios where a partition lawsuit may not be filed:
1. Contractual Agreement to Maintain Co-Ownership
If co-owners have entered into a valid agreement to maintain shared ownership for up to 10 years, and the contract meets formal legal requirements, no partition may be sought within that term. Such contracts may be recorded in the land registry to be enforceable against third parties.
In a 2017 decision, the Court of Cassation ruled that a 1996 waiver agreement no longer prevented partition in a 2013 lawsuit, as the 10-year period had expired (Court of Cassation 14th Civil Chamber, 02.10.2017, E.2015/416595, K.2017/7029).
2. Allocation to a Permanent Purpose
If the property has been dedicated to a continuous purpose, such as agriculture, cooperative use, or designated as a family residence, partition may not be requested.
In one decision, the court found that a land plot subject to a construction contract could not be partitioned (Court of Cassation 14th Civil Chamber, 23.09.2019, E.2016/6568, K.2019/5613).
Another ruling emphasized that after divorce, a property dedicated to housing the former spouse and children cannot be partitioned as it would breach good faith.
3. Filing at an Inappropriate Time
A lawsuit should not be filed in a manner that contradicts good faith or harms other co-owners' interests. Filing during market instability or while a zoning change is in process may be considered inappropriate.
In a case involving a property under urban renewal, the court ruled that partition via sale was improper and dismissed the case (Court of Cassation 14th Civil Chamber, 15.11.2018, E.2016/3160, K.2018/7844).
Methods of Partition
Article 699 of the Civil Code provides:
"Partition is carried out either by dividing the property in kind or by selling it through negotiation or public auction and distributing the proceeds."
1. Partition by Physical Division
If the asset is divisible, the court will first attempt to divide it in kind. If exact equality is not possible, monetary compensation is added to balance the difference.
2. Partition by Sale
If the asset cannot be divided or doing so would cause a substantial loss of value, it will be sold—usually via public auction. If all co-owners agree, the sale may be conducted among themselves.
The proceeds from the sale are distributed among the co-owners, thus ending the co-ownership.
Frequently Asked Questions (FAQs)
Conclusion
A partition action in Turkey is a legal mechanism to dissolve shared ownership over movable or immovable property. Whether arising under shared or joint ownership, such lawsuits require careful legal handling based on the nature of the dispute, the asset in question, and other case-specific factors. It is essential to prepare claims thoroughly, especially when potential dismissal grounds exist. To avoid delays and reach a resolution efficiently, seeking support from specialized real estate lawyers in Turkey is highly recommended.
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.
