TÜRKIYE Law and Practice Contributed by: Serkan Gül, Nazım Kurt and Türkay Avanaş, Hergüner Bilgen Üçer Attorney Partnership
Proposal to Condominium Law: Transparency in Common Expenses A new proposal introduces significant changes to Articles 35 and 37 of Condominium Law No 634, regarding the duties of site managers and financial administration of residential complexes. To prevent site managers from imposing arbitrary increases in monthly common expenses, the amendment requires any operating projects to be approved by the board of condominium owners within a three-month period and stipulates that all advance payments and monthly common expenses be explicitly detailed in these pro - jects. The law amendment aims to protect residents from disproportionate financial burdens by limiting the decision-making power of site managers. Under Turkish law, the most basic category of property right is simple freehold ownership ( mülkiyet ). Freehold ownership gives the property owner the right to use, benefit from and dispose of a piece of property. These rights are conceptually separable from one another; more limited property rights can be created by carv - ing out certain of these rights from simple freehold ownership. Leasehold Ownership Turkish law permits granting a third party the right to build on a piece of property ( üst hakkı ), and the holder of such a right becomes the owner of any structures that are built on this land in exercise of this right. If the right to build is intended to be independent and indefinite ( bağımsız ve sürekli ), then the holder of the right can register it in the land registry as a separate property interest, and this right is essentially treated no differently from independent real estate. Condominium Ownership Turkish law also recognises condominium ownership, which allows independent units in a completed struc - ture to be owned separately from the main structure, with the common areas of the main structure remain - ing under joint ownership with the owners of the other independent units in the building. 2. Sale and Purchase 2.1 Categories of Property Rights Simple Freehold Ownership
Usufruct/Servitude Right Under Turkish law, it is also possible to separate the right to use and to benefit from a piece of property from the right to disposal, and the complete right of use and benefit can be granted to a third party in what is called a usufruct/servitude right ( intifa/irtifak hakkı ). In a strict sense, usufruct under Turkish law is a personal right rather than a property right because this right cannot be alienated or divided and does not include the right to make fundamental changes to the established use of the property. Granting a usufruct right to a third party leaves the property owner with the sole right of disposal. 2.2 Laws Applicable to Transfer of Title Transfer of title is governed by: • the Civil Code, in so far as it defines the extent of the interest that is transferred; • the Code on Land Registration, which regulates the procedures to be followed for the transfer and introduces restrictions against, and specific clear - ance requirements for, foreign ownership of real estate; and • the Turkish Code of Obligations, which supplies the rules and background principles governing sales agreements. There are no specific laws that govern transfers of real estate by type of use. Residential property and com - mercial property alike are transferred under the same rubric. However, specific procedures have been put in place that determine the alienation of property rights held by the government, such as by way of usufruct. 2.3 Effecting Lawful and Proper Transfer of Title Real estate transfers become effective at the time they are registered at the Land Registry Office, which pro - vides a definitive record of real estate ownership root - ed in the Ottoman land registry system. Land records are kept in duplicate in the central database in Ankara and at the local Land Registry Office. These records are open to the public and are reliably accurate. Transfers of title must be recorded in order to gain effect. Similarly, all interests in real property, includ - ing mortgages, usufruct rights and rights of purchase
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