Under the Turkish Civil Code, ownership of a property is acquired through a legally valid entry in the land register. This forms the cornerstone for the transfer of property ownership and ensures that the land register entries are correct and reliable. However, the transfer of ownership is not limited to this transaction, but can also take place in various other ways.
In order for a property to be transferred, e.g. by sale or gift, it must be registered in the land registry. This registration officially documents the transfer of ownership of a property to the new owner and proves the title to the property. The registration process is crucial for the secure transfer of property and the legal recognition of ownership.
Although this basic rule applies to the acquisition of ownership, there are also some exceptions. These exceptions are established by legal regulations for specific cases and allow the transfer of ownership if certain conditions, such as the ordinary statute of limitations, are met. Such exceptions are provided by law to ensure a fair and orderly transfer of property.
One of these exceptions is the acquisition of property ownership by ordinary prescription. Ordinary prescription allows a person who uses a property continuously and in good faith for a certain period of time to legally acquire the title. This mechanism aims to recognise and legitimise the long-term actual use of property.
TMK m. In order to acquire the property with the ordinary prescription regulated in article 712, the conditions prescribed by law must be fulfilled together. This article evaluates the conditions for acquiring ownership of real estate by ordinary prescription.
In order to acquire ownership of a property by ordinary prescription, the property must first be registered in the title deed. If the property is not registered in the title deed, it is not possible to acquire ownership by ordinary prescription. However, the acquisition of ownership of real estate that is not registered in the title deed by prescription is prohibited under Article 713 of the Turkish Civil Code. This has also been regulated in Article 713. In this article, only the provisions regarding the acquisition of ownership of registered real estate by prescription are explained.
Conditions for Acquisition of Real Estate Ownership Through Ordinary Prescription
There are three conditions for the acquisition of real property by prescription. The first condition is that the property is registered in the title deed. The second condition is that the person who is registered as the owner in the title deed is registered as the owner due to an unlawful registration. The third and final condition is that the possession as owner must be in good faith, without litigation and uninterrupted for ten years. If these three conditions are met together, the unlawful registration in the title deed becomes invalid and the person registered as the owner in the title deed acquires ownership. Details of these conditions are set out below.
- Finding a Real Estate Registered in the Title Deed
The first condition for acquiring ownership by ordinary prescription is that the property must be a property registered in the land register. This is because the basis for acquiring ownership in this way is the unlawful entry in the land register, and it is not possible to acquire property that is not registered in the land register through ordinary prescription. The real estate registered in the title deed may be a plot of land or a separate part such as a flat or a workplace.
We must emphasise that the property in question must be a property that can be subject to private ownership. It is therefore not possible to acquire a property in this way that cannot be subject to private ownership. For example, if the property is public property, the property cannot be acquired by ordinary prescription as it cannot be subject to private ownership.
- Registration in the Title Deed Not Based on Valid Reason
The second condition for acquisition by ordinary prescription is that the person who wishes to acquire the property must be registered as the owner in the land register. However, this land register entry must not be based on a valid legal ground, i.e. it must have been made as an illegal entry. An illegal entry means that there is no reason that requires the transfer of ownership of the property or that this reason is invalid. For example, if the property is sold, the property purchase contract, which must be registered in the title deed, is a valid legal reason. However, even if there is no property purchase agreement, the entry in the land register in the name of another person is illegal, as if the property had been sold. Similarly, one cannot speak of a valid purchase agreement if the parties have not concluded the property purchase agreement in the title deed, but between themselves. This is because a prerequisite for validity is that the property purchase agreement is officially entered in the land register. In this case, the entry in the land register is illegal even if the legal basis is invalid. As a result, the person who appears as the owner in the title deed on an invalid ground acquires ownership if they fulfil the other conditions required in Article 712 TMK.
- Possession as Owner in Good Faith, Without Lawsuits and Uninterruptedly Lasting for Ten Years
The person who is registered as the owner in the title deed without good cause must maintain possession of that property in good faith, uninterruptedly and without litigation for ten years. At this point, it should first be explained what possession in the capacity of owner is. Then the conditions under which possession as owner should be maintained are discussed.
Possession As Owner
Possession of the unlawfully registered property must be maintained as owner. Possession refers to actual control over a thing. Generally, actual control of a property is determined by reference to the entry in the title deed. Accordingly, the person who is registered as the owner in the title deed is usually also the owner of the property. It is not necessary for the person who appears as the owner to actually use the property. It may be that the property is not used by anyone, or it may be that it is used by a tenant or a third party. TMK m. In order to acquire ownership within the meaning of Article 712, the actual use of the property by the person claiming to be the owner is not required. What is important is that the person who is registered on the title deed is in possession of the property as the owner.
In such a case, however, the capacity of the person who actually benefits from the property must be assessed. This is because the fact that the property is used by another person in the belief that he or she is the owner of it may prevent the person who appears as the owner in the title deed from acquiring rights. For example, the person who appears on the title deed as the owner of the property may have rented the property to another person. In this case, the tenant owns the property as a tenant and benefits from it. The fact that the tenant actually benefits from the property does not mean that the person holding the title deed is not in possession of the property. This is because the person who appears as the owner on the title deed benefits indirectly from the property due to the price paid by the tenant. In such cases, the ownership of the person who appears as the owner in the title deed remains indirect. However, if the person actually occupying the property thinks that they are the owner and not the tenant, this prevents them from owning the property.
The Good Faith Of The Possessor As Owner
Possession as owner must be maintained in good faith. A person who does not know and is not in a position to know that the entry in question is fraudulent, although he exercises all the care to be expected of an average and reasonable person, is in good faith. Accordingly, the person acquiring title to the property must consider himself to be the actual owner. For this reason, it cannot be said that the person who knew or should have known that the entry in the land register was corrupt was in good faith. Furthermore, it is not enough to be in good faith only at the time of the entry. It must exist for the entire limitation period, i.e. 10 years. Accordingly, it is not possible for the owner, who was initially in good faith but later became in bad faith, to obtain ownership of the property.
You can find detailed information on the prevention of interference with property ownership in our article "Prevention of interference with property ownership by the administration".
Uninterrupted Possession For Ten Years
Possession must be maintained for ten years without interruption. By ten years of continuous possession, it is meant that possession of the property continues uninterrupted for ten years from the date of registration. If possession is lost for any reason, acquisition of ownership is not possible as the condition of continued possession is not met. For example, if another person claims rights to the property and begins to actually use the property, the possession of the person listed as the owner on the title deed ends. Even if the person who lost possession later regains it, the limitation period starts again at that point. However, it is accepted that in cases where another person does not assert any rights, possession is temporarily lost and this situation does not interrupt the ten-year period. An example of such a situation would be a temporary flooding of the property.
Possession Lasts For Ten Years Without A Case
To acquire ownership under TMK Article 712, possession must continue for ten years without a dispute. By "without litigation" is meant that the title to the property has not been contested. A legal dispute that may prevent the acquisition of ownership is, for example, an action for cancellation and registration of the title deed filed by the actual owner of the property.
2. Consequences of the acquisition of immovable property by ordinary prescription
If all the above conditions are met, ownership is acquired without any further action being required. This is because the person who is already listed as the owner in the title deed does not need to make a separate registration or obtain a court decision. As soon as the conditions are met, the illegal entry in the land registry automatically becomes a valid entry. In this case, it is assumed that ownership is acquired retroactively from the start of possession.
The acquisition of property ownership through ordinary prescription is an important mechanism for legal certainty and the protection of property rights. This procedure ensures that long-term use and bona fide possession are recognised and that ownership is legitimised. By fulfilling these conditions, the ownership of the property is thus protected both legally and de facto.