Pre-Emption Right
If an immovable property has more than one owner and this property is subject to a shared ownership regime, it is quite natural for the mutual rights and obligations of the shareholders to be regulated.
In principle, the owner of a shared property can dispose of their share as they wish. However, if a share of a property subject to shared ownership is sold to a third party, the new owner faces a certain risk.
The right of pre-emption (shuf'a), regulated in Articles 732-735 of the Turkish Civil Code, is a special situation that other co-owners can use if a co-owner in shared ownership sells their share of the immovable property entirely or partially to a third party. The right of pre-emption is a legal right that allows a shareholder of an immovable property subject to a shared ownership regime to purchase the sold share at the price it was sold for, in the event that another shareholder sells their own share to a third party.
The shareholder filing the lawsuit requests, within the scope of the right of pre-emption, that the sold share be taken from the buyer and registered in their own name. This request must be made by filing a lawsuit within 3 months from the date the sale was notified to them via a notary, and in any case, within 2 years from the date of the sale. Otherwise, the right of pre-emption is forfeited.
The shareholder exercising the right of pre-emption deposits the sale price of the share and the title deed fees with the court.
It is beyond doubt that the buyer faces a significant risk if the sale price is understated in a share sale. In practice, buyers sometimes declare the sale price of the share on the title deed below the actual sale price with the motive of paying lower fees. Since the right of pre-emption will be exercised based on the sale price on the title deed, declaring the full share price on the title deed will reduce the buyer's potential losses.
The right of pre-emption cannot be exercised before the sale transaction takes place. The existence of a promise to sell agreement is not sufficient for the exercise of this right. The lawsuit can only be filed against sales; compulsory sales, donations, inheritances, and similar transactions do not give rise to the right of pre-emption.
A shareholder can waive their right of pre-emption. The waiver of the right of pre-emption must be made in an official form and recorded in the land registry. Waiving the right of pre-emption in a specific sale is subject to written form and can be done before or after the sale.
The pre-emption lawsuit is heard at the Civil Court of First Instance in the location of the immovable property.
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