Real estate sales are extremely important transactions in terms of both their economic value and legal consequences. In Turkish law, the formal form requirement has been accepted as a basic guarantee for real estate sales to be valid.
However, in practice, external sales contracts made without complying with the formal form requirement are also frequently seen and this situation leads to legal problems between the parties. Such sales, which occur especially in real estates with and without title deeds, bring with them risks such as both legal invalidity and victimization of the parties . In this article, the importance of the formal requirement in real estate sales, the legal status and consequences of external sales contracts will be discussed in detail.
Subheadings:
- Form Requirement in Real Estate Sales Contracts
- What is an External Sales Contract? Its Legal Nature and Basic Features
- External Sale of Title Deeded Properties and Its Consequences
- External Sale of Untitled Real Estate: Definition, Form and Results
- Cases of Surviving External Sales Contract
- Liquidation of External Sales: Process and Legal Principles
- Buyer's Special Rights Outside of Liquidation
- The Supreme Court's Views on External Sales
- Conclusion: The Importance of Form Requirement in Real Estate Sales
1. Form Requirement in Real Estate Sales Contracts
In Turkish law, the validity of real estate sales contracts is regulated based on the form requirement . This form requirement was introduced to ensure both the legal security of the real estate and to protect the rights of the parties. According to the Turkish Code of Obligations No. 6098 and the Turkish Civil Code No. 4721 , the form requirement in real estate sales contracts is clearly and precisely stated.
1.1. Official Form Requirement
In real estate sales contracts , the formal form requirement is a fundamental element for the validity of the contract. The formal form requirement is regulated as follows:
- Article 706 of the Turkish Civil Code: It is mandatory to issue an official deed for the transfer of real estate.
- Article 26 of the Land Registry Law: Real estate sales contracts made without an official deed being prepared at the Land Registry Directorate are invalid.
In order for the sale of real estate to be valid in accordance with these regulations:
- The sales contract must be made at the land registry office ,
- An official promissory note must be drawn up and signed by the parties.
If these conditions are not complied with, the contract is considered legally invalid and the rights of the parties over the real estate are not protected.
1.2. Purpose of the Form Requirement
The main purposes of imposing the official form requirement in real estate sales are as follows:
- Ensuring Legal Security:
- Since the transfer of real estate is a serious transaction, doing it officially protects the rights of the parties and prevents fraud.
- Maintaining the Reliability of the Land Registry:
- Sales contracts made at the land registry office are recorded in the land registry, providing clarity and certainty regarding the owner of the real estate.
- Ensuring that the parties make informed decisions:
- During official transactions, the parties are informed about the legal consequences of the transaction and sign the contract consciously.
- Avoiding Disputes:
- Formal contracts minimize disputes that may arise in the future by clarifying the rights and obligations of the parties.
1.3. Status of Real Estate Sales Contrary to Form Conditions
If the official form requirement is not complied with, the real estate sales contract is legally invalid . In this case:
- The buyer cannot take over the ownership of the real estate.
- The seller is relieved of the obligation to transfer the real estate.
- Parties may claim back the amount they paid based on the provisions on unjust enrichment .
However, in some cases, real estate sales that are made in violation of the form requirement are considered as external sales contracts and may have different results. Details of external sales will be discussed in the following headings.
1.4. Form Requirement for Unregistered Real Estate
Since the formal form requirement cannot be applied to real estates without title deeds, real estate sales contracts are subject to the provisions of general law of obligations . However, the transfer of real estates without title deeds is also subject to certain conditions and may require a court decision or notary approval.
In real estate sales contracts , the formal form requirement forms the basis of legal validity. This requirement is fulfilled by the issuance of an official deed at the land registry office. If the formal requirement is not complied with, the contract is considered invalid and the parties will not be able to benefit from legal protection.
2. What is an External Sales Contract? Its Legal Nature and Basic Features
with the official form requirement regarding the sale of real estate . In Turkish law, it is mandatory to issue an official deed at the land registry office for real estate sales to be valid. However, such contracts made between the parties contrary to the form may have legal consequences in some special cases.
2.1. Definition of External Sales Contract
An external sales contract is a contract that is not officially executed at the land registry office for the transfer of ownership of a real estate , but in which the parties declare their will to sell the real estate. Such contracts:
- Since an official deed has not been issued by the Land Registry Office, it is considered invalid .
- commitment-like results in terms of the law of obligations .
For example, even if one party has put the real estate up for sale and the other party has paid the price, the ownership of the real estate does not pass to the buyer unless an official deed is issued.
2.2. Legal Nature of External Sales Contract
The following points are important regarding the legal nature of external sales contracts:
- Commitment to Fulfill the Debt: The external sales contract does not provide for the transfer of ownership as it is not made officially; however, it does set forth the seller's obligation to transfer the real estate at the title deed.
- Void Contract: The contract is legally invalid because the formal form requirement is not complied with.
- Unjust Enrichment: The buyer may request the refund of the amount paid within the scope of the unjust enrichment provisions.
2.3. Basic Features of External Sales Contract
The salient features of external sales contracts are as follows:
- Contradiction to Form:
- These are contracts made without complying with the official form requirement.
- Declaration of Will:
- The parties declare their will regarding the sale of the real estate.
- Failure to Transfer Ownership:
- Since the title deed is not transferred, the ownership of the real estate does not pass to the buyer.
- Commitment Nature:
- If the seller does not fulfill his obligation to transfer the real estate, the buyer can file a lawsuit to force performance and request the transfer at the land registry office.
- Invalidity:
- External sales contracts are generally considered null and void because the formal form requirement is not met . However, in some exceptional cases, the contract may be kept in force.
2. 4. Impact of External Sales on Parties
As a result of the external sales contract, the following legal situations arise for the parties:
- Sales person:
- He is obliged to transfer the real estate. If he does not transfer, the buyer can demand performance through a lawsuit.
- Buyer:
- If he has paid the price, he can get back the amount he paid based on the provisions of unjust enrichment .
- He/she may apply to the court to ensure that the transfer of title deed takes place .
2.5. Reasons for External Sales in Practice
The main reasons why external sales contracts are frequently encountered in practice are as follows:
- Avoiding Title Deed Fees: The seller and the buyer do not carry out official procedures in order to avoid paying title deed fees.
- Lack of Legal Awareness: The parties' lack of awareness that compliance with the official form requirement is mandatory leads to external sales.
- Lack of Conditions Required for Sale: The seller's inability to resolve situations such as mortgages and liens on the real estate.
external sales contracts are considered invalid as contracts contrary to form in Turkish law , they may in some cases create debts on the parties. Especially if the buyer pays the price, the seller's obligation to transfer the real estate continues. However, as long as the official title deed transfer is not made, transfer of ownership is not possible. External sales pose a risk for both the parties and cause the rights on the real estate to become insecure.
3. External Sale of Title Deeded Properties and Its Consequences
External sales of registered real estates refer to verbal or written sales contracts made between the parties without complying with the official form requirement. However, according to the Turkish Civil Code No. 4721 and the Land Registry Law , the transfer of ownership of real estates is only possible by issuing an official deed at the land registry office . Therefore, external sales of registered real estates are legally invalid , but may have certain consequences.
3.1. Invalidity of External Sales of Title Deeded Real Estate
Formal form is mandatory for the transfer of registered real estate . Contracts made without an official deed being prepared at the land registry office are considered invalid for the following reasons:
- Turkish Civil Code Article 706: “Transfer of real estate ownership is only possible with an official deed executed at the land registry office.”
- Article 26 of the Land Registry Law clearly regulates that real estate sales must be carried out at the land registry offices.
In accordance with these provisions, external sales of registered real estate are legally null and void and no transfer of ownership takes place.
3.2. Effect of External Sales on the Parties
Although external sales are void, they may have some legal effects on the parties:
- Seller's Debt:
- The seller is under a commitment to transfer the real estate in the land registry office. If the transfer is not made, the buyer can apply to the court and file a lawsuit for registration in the land registry office .
- Registration at the land registry office can be achieved with a court decision (except for exceptional cases).
- Buyer's Claim Rights:
- The buyer may request the refund of the amount paid based on the provisions on unjust enrichment .
- In addition, the seller may request that he fulfill his obligation to transfer the real estate in the title deed.
3.3. Results of External Sales
The basic legal consequences arising from the external sale of registered real estate are as follows:
- Non-Transfer of Ownership:
- Unless an official transfer is made at the land registry office, the ownership of the real estate does not pass to the buyer. The buyer is not legally accepted as the owner of the real estate.
- Registration Case:
- a lawsuit to enforce performance or a registration lawsuit for the transfer of ownership of the real estate . However, in these lawsuits, the existence of justified reasons for registration is required.
- Unjust Enrichment:
- If the buyer has paid the price of the real estate but has not taken over the ownership, he can request the refund of the amount paid based on the provisions of unjust enrichment .
- Security of the Land Registry:
- Failure to register the transfer of ownership in registered real estates undermines the principle of registry security. Therefore, external sales create legal uncertainty over the real estate.
3.4. Risks of External Sale of Title Deeded Properties
The main risks that external sales pose for the parties are as follows:
- From the Buyer's Perspective:
- Since the transfer has not taken place in the land registry, no rights can be acquired over the real estate.
- There is a risk that the amount paid may not be refunded.
- From the Seller's Perspective:
- legal responsibilities continue due to his commitment to carry out the transfer .
- From the Perspective of Third Parties:
- The rights of third parties who purchase real estate by relying on the land registry are protected. In this case, the rights arising from external sales lose their validity.
3.5. External Sales in Light of Supreme Court Decisions
The Supreme Court has drawn attention to the following issues in its decisions regarding external sales of registered real estate:
- Real estate sales contracts made without complying with the official form requirement are, as a rule, invalid .
- However, if the seller does not fulfill his obligation to transfer the real estate in the title deed, the buyer can seek his rights by applying to the court .
- In accordance with the provisions on unjust enrichment, the refund of the price paid by the buyer may be provided.
are legally invalid because the official form requirement is not met and do not provide for the transfer of ownership. However, it may create a debt relationship between the parties and the buyer has the opportunity to seek his rights by applying to the court. Considering the legal uncertainties and grievances caused by external sales, it should not be forgotten that real estate sales must be made officially at the land registry office .
4. External Sale of Untitled Real Estate: Definition, Form and Results
External sales of real estate without title deeds means the sale of real estate that is not registered in the land registry between the parties without complying with the formality requirement. Although it is mandatory in Turkish law to sell real estate with title deeds in an official manner, the situation becomes more complicated when it comes to real estate without title deeds. The sale of such real estate is subject to the provisions of general obligations law and may be considered valid under certain special conditions.
4.1. What is Untitled Real Estate?
Unregistered real estates are real estates that have not yet been registered in the land registry or whose legal nature has not yet been fully determined. Examples of such real estates are:
- Lands without title deed records,
- Areas where cadastral work has not been completed,
- Real estate located within the village boundaries can be given.
The transfer of ownership of such real estate cannot be carried out at the land registry office as is the case with registered real estate.
4.2. Legal Nature of External Sales of Untitled Real Estate
Since the sale of real estate without a title deed is not subject to any formal form requirement, it is evaluated according to the provisions of general law of obligations . The main points to be considered in these sales are as follows:
- Condition of Validity:
The sale contract of real estate without title deeds can be made in written or verbal form. However, it creates a legal debt relationship between the parties . - Commitment Nature:
The seller undertakes to transfer the ownership of the real estate to the buyer. However, since there is no title deed record, the transfer of ownership does not actually take place. - Request for Registration:
The buyer may file a lawsuit to have the real estate without a title deed registered at the land registry office after the cadastral procedures are completed.
4.3. Conditions of Form for External Sales of Unregistered Real Estate
There is no formal form requirement for real estate without a title deed. However, the following conditions must be met for the validity of the sales contract:
- Agreement of the Parties: The seller and the buyer must clearly declare their will regarding the transfer of the real estate.
- Determinability of the Real Estate: The boundaries and location of the real estate subject to sale must be clearly determined.
- Payment of the Price: The buyer's payment of the price agreed upon in the contract makes the sales contract actually operational.
4.4. Results of External Sales of Untitled Real Estate
The legal consequences that arise in the external sale of real estate without title deeds are as follows:
- Non-Transferability of Ownership:
- Since there is no title deed record, the ownership of the real estate cannot be transferred to the buyer.
- However, the seller undertakes to complete the registration of ownership.
- Buyer's Claim Rights:
- The buyer may apply to the court for the registration of the real estate in the land registry.
- In addition, if the price has been paid but the transfer of ownership has not taken place, the party may request the refund of the price paid based on the provisions of unjust enrichment .
- Filing a Registration Case:
- a registration lawsuit to have the real estate registered in his name .
- Limitation of Disposition Authority:
- The sale of real estate without a title deed does not provide legal security to the buyer. In the event of the transfer of the real estate to third parties or expropriation, the buyer's rights may not be protected.
4. 5. Problems Seen in Application
The main problems encountered in the external sale of real estate without title deeds are as follows:
- Cadastral Deficiencies: Problems may arise in determining the boundaries and owners of real estate that is not registered in the land registry.
- Ownership Claims: More than one person claiming rights over a property without a title deed may lead to legal disputes.
- Extension of Registration Processes: It is a long and costly process for the buyer to file a lawsuit for title deed registration.
Since the external sale of real estate without a title deed is not subject to the formal form requirement, it results in accordance with the provisions of general law of obligations . Even if the transfer of ownership does not take place, a commitment relationship arises between the parties. The buyer may apply to the court for registration in the title deed or request the return of the amount paid. However, it should not be forgotten that the legal risks are high in the sale of real estate without a title deed, and the registration procedures of the real estate must be completed.
5. Cases of Survival of External Sales Contract
a formal form requirement is required for real estate sales contracts to be valid . However, in some special cases, external sales contracts that are made in violation of the form requirement may be kept valid or may produce partial results instead of being considered completely invalid . These situations are generally accepted by the courts on the grounds of equity principles and legal security .
5.1. If the Performance Has Been Performed or Partially Performed
If one of the parties to an external sales contract has fulfilled its obligations under the contract, the courts may uphold the contract as a matter of equity . This situation arises particularly in the following circumstances:
- Delivery of the Real Estate by the Seller: If the seller has actually left the real estate for the use of the buyer and the buyer has started to use the real estate, the contract may be considered partially performed.
- Buyer's Payment of Price: If the buyer has paid the sales price of the real estate in full or in part, the seller may be requested to transfer the real estate to the land registry office.
Conclusion: Even if the court decides that the contract is invalid due to lack of form, it may allow the buyer to file a lawsuit for the refund of the price paid or to force performance for registration.
5.2. Filing a Land Registry Lawsuit
may apply to the court and request registration in the land registry in order to keep external sales contracts alive . This is especially possible under the following conditions:
- Agreement of the Parties: If there is a valid debt relationship between the parties, the court may evaluate the registration request.
- Performance of the Contract is Not Impossible: If the title deed transfer is possible by the seller, the court may find the buyer's request for registration justified.
Opinion of the Supreme Court:
The Supreme Court can accept a registration case if the buyer is in good faith and has fulfilled the requirements of the contract. Such decisions are made in accordance with the principles of equity and aim to prevent the victimization of the buyer.
5.3. Reliance on Unjust Enrichment Provisions
If the external sales contract is deemed invalid, the buyer may request the refund of the amount paid based on the provisions on unjust enrichment . Unjust enrichment occurs in the following cases:
- The buyer cannot take over the real estate despite paying the sales price,
- The seller has unlawfully retained the price he received.
In this case, the court decides to refund the amount paid by the buyer and the debt relationship between the parties ends.
5.4. The Rule of Fairness and Honesty
The maintenance of external sales contracts can also be evaluated within the framework of the good faith rule regulated in Article 2 of the Civil Code . If:
- If the parties have acted in accordance with the contract,
- the invalidation of the contract would lead to an unfair result,
The courts may make decisions to keep the contract alive. Especially in cases where the buyer pays the price and starts using the real estate, the courts tend to protect the buyer's rights despite the formality requirement.
5.5. Registration Commitment by the Seller
commitment to transfer the real estate in the external sales contract and this commitment is legally secured, the contract can be kept in force. Based on this commitment of the seller, the buyer:
- You can file a registration lawsuit,
- It may demand that the seller fulfill its obligations.
Such commitments are usually included in written contracts and are considered as debt relationships in courts.
External sales contracts are, as a rule, invalid because they are contrary to the formal form requirement. However, in certain cases, especially in executed contracts , these contracts can be kept in force due to the principle of unjust enrichment or equity . In cases such as the buyer paying the price, starting to use the real estate or the seller giving a registration commitment, the courts may allow the contract to produce results. This situation is of great importance, especially in order to prevent the victimization of the buyer and to ensure legal security.
6. Buyer's Special Rights Outside of Liquidation
In external sales contracts, in addition to the liquidation process, the buyer's special claim rights may also come into play. The invalidity of contracts made without complying with the formal form requirement does not mean that all rights of the buyer are eliminated. The buyer may make various claims based on the Turkish Code of Obligations , unjust enrichment provisions and other general law principles.
6.1. Right to Refund of the Paid Price
When the buyer cannot take over the ownership of the real estate in an external sales contract:
- He/she may request the refund of the amount he/she paid in accordance with the provisions on unjust enrichment .
- The seller must pay this amount back to the buyer with interest .
Legal Basis:
- Article 77 of the TCC: “Anyone who becomes rich from someone else’s property without a legitimate reason is obliged to return this enrichment.”
In accordance with this article, the buyer has the right to receive a refund of the amount paid.
6.2. Right to Claim Interest
If the buyer has not taken over the real estate after paying the sales price, he has the right to demand interest from the payment date . This situation is a result of the seller using the price unfairly.
For example:
- If the buyer paid the sales price in 2023 but the title deed was not transferred, the court decision will refund the paid price with interest.
This right aims to minimise the buyer's financial damage .
6.3. Claim for Compensation
material and moral damage due to the invalidity of the external sales contract , he may claim compensation from the seller. This claim:
- Material Compensation:
- It is the compensation for direct losses incurred by the buyer due to his failure to take over the real estate. For example:
- Expenses incurred for title deed transactions,
- Losses arising from the use of real estate.
- Non-pecuniary Damages:
- Compensation is provided for moral damages suffered due to the seller's malicious behavior or abuse of the buyer's trust.
Conditions:
- The fault of the seller must be proven,
- The damages suffered by the buyer must be demonstrated with concrete evidence.
6.4. Request for Land Registry Registration (In Exceptional Cases)
Although external sales contracts are considered invalid because they are contrary to the form requirement, registration with the land registry may be requested in some special cases. These exceptions are as follows:
- Seller's Registration Commitment:
- If the seller has undertaken to transfer the real estate to the land registry office and the buyer has paid the price, the court may decide to register the property in the land registry office .
- Supreme Court Jurisprudence:
- The Supreme Court may rule on registration on the grounds of equity, provided that the buyer is in good faith and has paid the sales price.
6.5. Protection of the Bona Fide Buyer
In Turkish law, the protection of bona fide buyers is an important principle in terms of ensuring legal security. If the buyer:
- If the seller made the payment based on the seller's assurance that he would transfer the real estate,
- If it is proven that the seller abused his ownership rights over the real estate,
The court may issue special remedies to protect the buyer's rights.
Buyer's Rights in Brief:
Apart from liquidation, the buyer's special claim rights are as follows:
- Refund of the amount paid (based on the provisions of unjust enrichment),
- Interest request (from the payment date),
- Claim for material and moral compensation (compensation for damages suffered),
- Request for registration in the land registry office (in exceptional cases),
- Protection of the bona fide purchaser (based on the principle of legal certainty).
In external sales contracts, the buyer's rights are not completely eliminated. In addition to the liquidation process, the buyer can protect his rights based on unjust enrichment provisions , compensation claims and good faith rules . However, in order to prevent such grievances, it is of great importance that real estate sales are made in accordance with the official form requirement at the land registry office .
7. The Supreme Court's Views on External Sales
The Court of Cassation has drawn an important framework in Turkish law practice with its decisions regarding external sales contracts. The basic rule is that official form is required for real estate sales contracts to be valid. However, the Court of Cassation has granted limited effects to external sales contracts in some special cases in line with the principle of honesty , the principle of equity and the good faith of the parties and has contributed to the resolution of disputes.
7.1. The Supreme Court's Approach to the Official Form Requirement
According to the established precedents of the Supreme Court:
- Real estate sales are subject to official form requirements , and sales contracts made without an official deed being issued at the land registry office are invalid .
- Failure to comply with the formal form requirement renders the contract null and void and no transfer of ownership takes place.
Sample Decision:
The Supreme Court emphasized that external sales contracts are not sufficient for registration in the land registry:
“The ownership of real estate is transferred by registration in the land registry. An external sales contract made in violation of the official form requirement does not provide for the transfer of ownership and is invalid.”
7.2. Protection of the Bona Fide Buyer
The Supreme Court has accepted that if the buyer is in good faith and fulfills the contractual requirements, the buyer's rights should be protected in line with the principle of equity. For example:
- If the buyer has paid the sales price and started to actually use the real estate, the unjust enrichment provisions come into play.
- If the seller's obligation not to transfer the real estate in the title deed has been violated, the court may decide in favor of the buyer.
Sample Decision:
“If the buyer has paid the full purchase price of the real estate and has started to use the real estate, the seller is entitled to return the amount paid or file a registration lawsuit in order to prevent unjust enrichment.”
7.3. Opinion of the Supreme Court in Registration Cases
The buyer's right to file a registration lawsuit in external sales contracts has been accepted by the Supreme Court decisions in some special cases:
- If the Seller Has a Registration Commitment: If the seller has made a clear commitment to transfer the real estate in the title deed, the buyer can apply to the court and request registration .
- Cadastre and Zoning Procedures: In real estates without title deeds or in which cadastral work has not been completed, the buyer's request for registration may be accepted by the Supreme Court.
Sample Decision:
“If the seller has agreed to transfer the real estate to the buyer with the registration commitment and the buyer has fulfilled the requirements of the contract, the registration request must be accepted as a matter of equity.”
7.4. Reliance on Unjust Enrichment Provisions
unjust enrichment provisions in external sales contracts in order to compensate for the damages suffered by the buyer . Accordingly:
- If the buyer has paid the sales price but has not taken over the real estate, he can request the refund of the price he paid.
- If the seller does not return the amount paid by the buyer, the court will decide in favor of the buyer.
Sample Decision:
“The seller must return the price paid by the buyer due to the invalid contract. Otherwise, unjust enrichment will occur.”
7.5. Application of the Principle of Fairness
In line with the principle of equity, the Supreme Court has granted limited validity to external sales contracts in some cases. In particular:
- The buyer has no malicious intent,
- In cases where the parties agree on the performance of the contract,
The courts make decisions to overcome the deficiency in form and to eliminate the victimization of the buyer.
Sample Decision:
“As a matter of equity, the rights of the buyer who has paid the price and started to use the real estate in practice should be protected.”
7.6. The Supreme Court's Approach to Untitled Properties
The Supreme Court of Appeals in external sales of real estate without title deed:
- It accepts the buyer's right to request registration of the real estate.
- Once the cadastral work is completed, the buyer may request the registration of the property.
Sample Decision:
“In the external sale of real estate without a title deed, the buyer has the right to have the real estate registered in his name after the cadastral procedures are completed.”
The Court of Cassation’s decisions regarding external sales contracts are aimed at protecting the rights of the buyer in some exceptional cases, while preserving the validity of the formal form requirement . In particular:
- Protection of bona fide purchasers ,
- Application of unjust enrichment provisions ,
- Registration commitment of the seller ,
- the principle of fairness, the buyer's grievances are eliminated.
This approach of the Supreme Court aims to ensure legal certainty and prevent victimization in real estate sales. However, it should not be forgotten that in all cases, real estate sales must be made in accordance with the official form requirement at the land registry office.
8. Conclusion: The Importance of Form Requirement in Real Estate Sales
The formal form requirement in real estate sales contracts is a fundamental requirement introduced in Turkish law to both ensure security of ownership and to prevent legal uncertainties between the parties . According to the clear provisions of the Turkish Civil Code No. 4721 and the Land Registry Law , real estate transfer is only possible with an official deed issued by the land registry office . Failure to fulfill this requirement will result in the contract being deemed legally invalid and the parties suffering.
8.1. To summarize the importance of the official form requirement:
- Provides Legal Security:
- Issuing an official deed at the land registry office makes the transfer of real estate ownership transparent and secure.
- It prevents disputes that may arise between the parties.
- Protects the Reliability of the Land Registry:
- a secure source of information for third parties .
- Compliance with the Principles of Fairness:
- The formal form requirement ensures that the buyer and seller act consciously . Therefore, it aims to minimize the loss of rights.
- Reduces Conflict:
- they prevent any compensation, liquidation or registration lawsuits that may arise in the future .
- Protects the Rights of the Parties:
- The protection of the price paid by the buyer ensures that the seller's authority to dispose of the real estate is clearly determined.
8.2. Risks arising from external sales
External sales made without complying with the form requirement carry great risks for both the buyer and the seller:
- Ownership is not transferable: The buyer cannot have rights over the real estate since no official registration has been made.
- Risk of Loss of Rights: If the seller transfers the real estate to a third party, the buyer's claim becomes invalid.
- Lengthy Court Processes: Disputes arising from external sales lead to lengthy and costly processes through the courts.
8.3. Opinions of the Supreme Court and Practice
The decisions of the Supreme Court of Appeals, while emphasizing the importance of the formal form requirement, have provided solutions within the framework of the principles of fairness and honesty in order to protect the bona fide buyer in some special cases . However, these exceptional cases do not mean that the formal form requirement has been eliminated.
8.4. Results Evaluation
The requirement of form in real estate sales is of vital importance both to secure the transfer of ownership rights and to prevent legal uncertainties . External sales contracts that arise when the requirement of form is not complied with:
- Risky for the parties ,
- Legally void ,
- In practice, it causes loss of time and grievances .
For this reason, real estate sales must be made by issuing an official deed at the land registry office . Compliance with the official form requirement is the cornerstone of a safe and legal process for both the buyer and the seller.