Real estate sales contracts are one of the important legal transactions involving the transfer of real estate ownership. In this process, the role and responsibilities of notaries are of great importance in terms of legal security and validity of transactions. With the article 61/A added to the Notary Law as of 01.01.2023, the authority of notaries to issue real estate sales contracts has been expanded, and with this authority, the legal responsibilities of notaries are also discussed in detail. In this article, the legal powers of notaries in real estate sales contracts, their principles of practice and the legal responsibilities that may arise will be examined comprehensively, and the issues that notaries should pay attention to in these transactions and the possible legal risks they may encounter will be evaluated.
Amendments to the Notary Law and New Powers
With Law No. 7413, significant changes were made in the notary system, and notaries were given the opportunity to draw up real estate sales contracts. This innovation came into force as of January 1, 2023, and notaries now have the authority to make real estate sales contracts, like land registry offices. However, this authority is not exclusive; the authority of land registry managers or land registry officers continues. The authority of notaries to issue real estate sales contracts aims to increase transaction security by playing an important role in the transfer of property process.
Powers of Notaries in Commitment Transactions
Notaries are authorized to prepare real estate sales contracts. This authority supports the view that notaries should have the authority to make all contracts regarding the transfer of real estate ownership and the establishment of limited real rights. A more appropriate approach would be for notaries to have the authority to conclude all contracts regarding the transfer of real estate ownership and the establishment of limited real rights, as is the case in European Union countries. In this way, the role of notaries in real estate sales transactions will be further strengthened and transaction security will be ensured.
Real Estate Sale Promise Agreements
Notaries have the authority to make real estate sales promises. If the real estate owner does not fulfill his obligation arising from the promise of sale contract, the creditor of the promise of sale may request that the sales contract be deemed to have been concluded and that the ownership of the real estate be transferred to him. In this case, sales promise contracts drawn up by notaries provide legal security between the parties and increase transaction security.
Liability of Notaries and Risks
For notaries, the authority to conclude real estate sales contracts is an important authority and source of income, but it also creates serious responsibilities. Notaries may be liable, together with the State, for aggravated breach of duty of care in case the land registry is kept unlawfully. For this reason, the profit that notaries will earn by taking this risk is not economically very attractive. Notaries must be careful when using this authority and act in accordance with the law.
II. Procedural Principles and Rules to be Followed in the Execution of the Real Estate Sales Contract by Notary Publics
1. Official Conditions of Real Estate Sale
Article 706 of the Civil Code and Article 237 of the Code of Obligations emphasize that the validity of contracts aiming at the transfer of immovable property depends on their being officially drawn up. In order for real estate sales contracts to be valid, these contracts must be prepared officially. This official form is of great importance in the transfer of real estate ownership and notaries must be careful in this regard.
2. Inability to Transact Electronically
Real estate sales contracts must be made in the form of regulations and the declarations of will of the relevant parties must be received in the presence of a notary. For this reason, they cannot be executed with electronic signature through the Turkish Notary Union Information System without being present in the presence of a notary. Real estate sales contracts consist of transactions made by the relevant parties or their authorized representatives in the presence of a notary public and with wet signatures. This regulation aims to increase transaction security and requires notaries to be personally present in real estate sales contracts.
3. Land Registry Law and the Principle of Unity in Transaction
Article 26 of the Land Registry Law states that in contracts aiming at the transfer of real estate ownership, if the parties are in different land registry offices, the contract can be completed by taking the parties' wills separately by official officials. However, these regulations cannot be applied to transactions carried out by notaries. According to the Notary Law, real estate sales contracts must be made in the presence of a notary and with a wet signature. This regulation ensures that the principle of unity in the transaction is preserved and that notaries are directly involved in real estate sales transactions.
4. Authority of Notaries by Location
Article 61/A of the Notary Law does not impose any restrictions on the authority of notaries based on location. For this reason, article 2 of the Notary Law should be taken into consideration regarding the jurisdiction of notary public offices. The validity of a real estate sales contract made outside the notary's jurisdiction may vary depending on the general discussions in notary law. However, the will of the parties should be given priority and if all conditions are met, the contract should not be deemed invalid on the grounds that the notary is not authorized due to location. Regulations regarding the jurisdiction of notaries aim to increase the security of real estate sales contracts.
5. Turkish Citizens Abroad
Turkish citizens living abroad can make a contract for the sale of real estate through Turkish consulates in their country. Consular officers carry out notarial procedures within the consulate building. The powers of consular officers are regulated similar to the powers of notaries. This regulation aims to facilitate real estate sales transactions for Turkish citizens living abroad and increase transaction security.
6. Application Document and Restrictions
The notary prepares an application document upon application for the sale of real estate and takes into account all restrictions on the real estate. Before the real estate sales contract is made, all necessary documents are completed and deficiencies are eliminated through the land registry information system. Notaries personally carry out the transactions related to the real estate sales contract, and in the justification of the law, it is stated that due to the importance of the work, the real estate sales contract is expected to be made by the notary in person. This regulation aims to ensure that notaries act carefully and meticulously in real estate sales transactions.
7. Failure to Identify the Right Owner or Obstacles
If the rightful owner cannot be determined from the title deed registration sample and other documents or if there is a legal situation that prevents the sale, the sale cannot be carried out by notaries. When making real estate sales contracts, notaries must determine the beneficiary and check whether there is a legal situation that prevents the sale of the real estate. This regulation aims to ensure that notaries act in accordance with the law and ensure transaction security in real estate sales transactions.
8. Content of the Official Certificate
The official deed containing the real estate sales contract should contain elements such as the identity information of the parties, identifying information of the real estate, encumbrances on the real estate and the sales price. In order for the notary to ensure transaction security, care must be taken that the sales price is not below the property tax value of the real estate. The notary must check all necessary information and documents regarding the real estate sales contract and ensure transaction security. This regulation aims to ensure that real estate sales contracts are made in accordance with the law and that the rights of the parties are protected.
9. Notary Obligations and Restrictions
The notary records the real estate sales contract in the land registry information system by obtaining a journal number as soon as it is signed, and physically archives the documents. No terms or conditions can be included in the official deed to be prepared by the notary public, which would impair or invalidate the registration. The notary must be careful and act in accordance with the law when performing transactions related to the real estate sales contract. This regulation aims to ensure that notaries act meticulously and carefully in real estate sales transactions.
10. Fee and Tax Exemption
Notaries collect title deed fees only in accordance with the Law on Fees in the context of real estate sales contracts. These contracts are exempt from stamp duty and the papers related to these transactions are exempt from the valuable paper fee. Notaries, in the context of real estate sales contracts they have concluded, can only request a notary fee based on the fee schedule determined according to the value of the real estate. This regulation aims to ensure that notaries demand a fair fee in real estate sales transactions and ensure transaction security.
11. Registration Request and Authority of Land Registry Offices
Notaries are only concerned with the debt transaction phase in the process of transferring real estate ownership. However, under the influence of the land registry practice, the legislator has structured the debit transaction and the disposition transaction into the Notary Law in an intertwined manner. The real estate sales contract also includes a registration request, which is a unilateral disposition process. If the land registry office finds the sales contract drawn up by the notary to be unlawful, it may refuse registration. This regulation aims to ensure that the land registry is kept in accordance with the law and transaction security.
12. Completion of Registration
In the context of transfer of real estate ownership, notaries are only responsible for the preparation of the real estate sales contract, which is a commitment process. Saving transactions belong exclusively to the land registry office. The registration request is made by the land registry director or land registry officer and the registration process is recorded in the official registry. Notaries' inclusion in the registration request may mean interference with the jurisdiction of the land registry office. This regulation aims to ensure that the principle of unity in real estate sales transactions is preserved and that the land registry is kept in accordance with the law.
13. Distinction between Borrowing Transaction and Saving Transaction
The inclusion of a registration request in a real estate sales contract is not compatible with the distinction between loan transaction and savings transaction, which is one of the cornerstones of civil law. While the loan transaction expresses the commitment to transfer the real estate ownership, the disposition transaction provides the transfer of the real right. Maintaining the distinction between loan transaction and disposition transaction in keeping the land registry aims to increase transaction security and ensure legal certainty. Notaries must observe this distinction in real estate sales contracts and act in accordance with the law.
14. Land Registry Directorate and Registration Rejection Authority
According to the Notary Law, if the land registry office finds the real estate sales contract prepared by the notary to be unlawful, it may refuse registration. The authority to request registration belongs to the real estate owner. Before the registration process, the land registry office checks the disposition authority of the applicant and whether the contract drawn up by the notary public is in compliance with the law. This regulation aims to ensure that the land registry is kept in accordance with the law and transaction security.
15. Elements That Must Be İncluded İn The Official Deed
The official deed containing the real estate sales contract should contain elements such as the identity information of the parties to the sales contract, information to identify the real estate, encumbrances and sales price. While preparing the real estate sales contract, the notary must check all information and documents completely and accurately and ensure transaction security. This regulation aims to ensure that real estate sales contracts are made in accordance with the law and that the rights of the parties are protected.
16. Legal Liability of the Notary
The legal liability of notaries is regulated in Article 162 of the Notary Law. Notaries are held responsible for any damages incurred if they act unlawfully while drawing up a real estate sales contract. The legal liability of notaries is an aggravated duty of care, and notaries must act meticulously and act in accordance with the law. The legal liability of notaries aims to increase transaction security and protect the rights of the parties in real estate sales contracts.
17. Authority of Turkish Consulates in Foreign Countries
Turkish consulates located in foreign countries have the authority to issue real estate sales contracts. Consular officers carry out notarial transactions within the consulate building, and these transactions are carried out under the legal responsibility of consular officers. Turkish citizens in foreign countries can make real estate sales contracts through consulates, and these transactions are carried out within the same legal framework as notary transactions. This regulation aims to facilitate the real estate sales transactions of Turkish citizens living in foreign countries and ensure transaction security.
III. Examination of the Legal Liability of Notaries in the Context of Real Estate Sales Contracts
1. Legal Liability of Notaries
The legal liability of notaries is regulated in Article 162 of the Notary Law. Notaries are responsible to those who suffer damage due to not performing a job or doing it incorrectly or incompletely, even if it is done by interns, clerks and clerk candidates. The legal liability of notaries is aggravated duty of care. The notary public may be held responsible for the damage caused by the transaction or act performed by himself or his employee in the context of the execution of his notary duty, and it is not necessary for him or his employee to be at fault in this case.
2. Authority to Make a Real Estate Sales Contract
Thanks to the additions and amendments brought to the Notary Law by Articles 11 and 12 of Law No. 7413, the possibility of making real estate sales contracts by notaries has been introduced. According to the second paragraph added to Article 162 of the Notary Law, notaries are also responsible for the damage caused by the preparation of the real estate sales contract. If this damage is paid by the State, the State has recourse to the notary who issued the contract.
3. Keeping the Land Registry and Liability
The responsibility arising from keeping the land registry is essentially regulated in Article 1007 of the Turkish Civil Code (TMK). According to this provision, the State is responsible for all damages arising from the maintenance of the land registry, and the State reserves the right to recourse against officials who are at fault in causing the damage. Responsibility for keeping the land registry aims to ensure security in the transfer of real estate ownership. TMK m. The provision of Article 1007 creates aggravated objective liability of the State and the principle that the State is perfectly responsible for damages arising from the maintenance of the land registry has been adopted.
4. Liability Regime of Notaries
The legislator has also introduced a similar liability regime for the notaries authorized to make real estate sales contracts. With the second paragraph added to Article 162 of the Notary Law, it has been stipulated that notaries will also be responsible for damages that may arise due to real estate sales contracts drawn up by notaries. This responsibility aims to ensure that notaries act meticulously and in accordance with the law in real estate sales contracts.
5. Origin and Conditions of Notaries' Responsibility
The following conditions are required for the liability of notaries to arise:
- The notary must have prepared the real estate sales contract.
- There must be an illegality in the real estate sales contract.
- Damage must have occurred.
- There must be an appropriate causal link between the damage and the unlawful drafting of the contract. Notaries must observe these conditions in real estate sales contracts and act in accordance with the law.
6. Illegality and Damage Occurrence
In order for notaries to be legally liable, there must be an illegality in the real estate sales contract. Illegality means violation of the legal rules that protect the property interests of individuals. If the notary violates the written or unwritten rules of conduct intended to protect people's property and personal assets, the element of unlawfulness occurs. Notaries must be careful and act in accordance with the law in order to avoid any illegality in real estate sales contracts.
7. Responsibility of Notaries and Conditions
In order for the notary public to be liable for regulating real estate sales contracts, damage must have occurred. Damage may be material or moral. Material damage may occur in the form of a decrease or prevention of increase in assets. Notaries must be careful in real estate sales contracts and take legal action to prevent damage. If damage occurs, notaries may be held legally responsible for this damage.
8. Causation and Responsibility
For notaries to be liable, there must be an appropriate causal link between the occurrence of damage and the illegal preparation of the real estate sales contract. There must be an appropriate causal link between the act causing the damage and the damage. However, the behavior of the injured party or the third party may sever the appropriate causal link between the notary's act and the damage. Notaries must be careful in real estate sales contracts and act in accordance with the law.
9. Legal Responsibility of Notaries and Mandate
The regulation regarding the legal liability of notaries is mandatory and it is not possible to agree otherwise by contract. The principles regarding the legal liability of notaries and debt relations arising from torts are applied. The plaintiff in the compensation lawsuit to be filed against the notary is the person who suffered damage due to the illegal preparation of the real estate sales contract. This regulation aims to ensure that notaries perform lawful transactions and ensure transaction security.
10. Cases to be filed against the Notary Public and the Competent Court
The competent court for lawsuits to be filed against the notary is the court where the land registry where the registration process is carried out is located. This jurisdiction rule is a definitive jurisdiction rule and cases must be filed in civil courts of first instance. In the context of compensation for damages arising from real estate sales contracts issued by Turkish consulates in foreign countries, the legal regime regarding the legal liability of civil servants is applied due to the legal status of consular officers. This regulation aims to ensure that notaries perform lawful transactions and ensure transaction security.
Conclusion
With the article 61/A added to the Notary Law, notaries have been authorized to conclude real estate sales contracts as of 01.01.2023. This authority granted to notaries continues with the authority of the land registry director or land registry office officials to issue real estate sales contracts. Real estate sales contracts consist of transactions that must be made with wet signatures of the relevant parties in the presence of a notary. The Notary Law aims to ensure that notaries act in accordance with the law and ensure transaction security when regulating real estate sales contracts. The legal responsibility of notaries is an aggravated responsibility of care, and notaries must act meticulously and act in accordance with the law. The responsibility of notaries in real estate sales contracts aims to increase transaction security and protect the rights of the parties. Turkish consulates in foreign countries can also issue real estate sales contracts, and these transactions are carried out under the legal responsibility of consular officers. The Notary Law aims to ensure that notaries perform lawful transactions and ensure transaction security.