Legitimacy of cohabitation agreements in Turkey

Cohabitation agreements do not exist in Turkey; there is no judicial ground for them. So what happens about these kinds of agreements in Turkey, which do exist in most Western-European countries? What are the rights of a remaining partner? These are interesting questions for people who share real estate in Turkey without being married. Even more so if the rights of the remaining partner are not assured in a will.

If your'marriage' is based on a cohabitation agreement and you share a house in Turkey, I would recommend you both secure your legal property tenure relating to inheritance issues with a notarised will. Because cohabitation agreements are not legally recognised in Turkey, a remaining partner will not be entitled to claim an inheritance based on it. By Turkish law only a married partner will be recognised as a legal heir.

This explains the need to create a notarised will, preferably in Turkey, for the other partner in these situations.

A remaining partner can obtain testamentary heir ship based on a notarised will. This means he or she can request a right to inherit based on the will, with the relevant Turkish authorities, i.e. the magistrate.

A will registered abroad is equally valid legally as one registered in Turkey, but a will created in a foreign language will more likely create bureaucratic problems and with it often comes an unnecessary waste of time and money.

It seems also a wise move to register the other partner's right to usufruct the real estate at the local Tapu- office. This way the remaining partner has the right to remain in the property without being confronted by succession problems.

Be alert and don't leave it too late to take legal advice regarding inheritance issues of your property in Turkey.

Hidden Flaws

'Madam Solicitor, we have been taken for a ride! We want our money back. We still want the builder to put right all the things he promised. The property we bought is not the property we were promised. We can't find many of the features mentioned in the brochure, the advert and on the builder's website. What can we do?'

Many disappointed buyers pass through my office. My first question is always, whether a notarial purchase agreement was signed. Usually this is not the case, as people find the notarial costs too high. And although it isn't compulsory under Turkish law to sign a purchase agreement through a notary, it is beneficial to do so, particularly in such situations as those mentioned above.

It is advisable to have a notarial purchase agreement when purchasing a property from a building firm or a contractor. In this case the purchaser is called 'consumer' as referred to in the Consumer Legislation and enjoys full protection underthe Law. Here follows in a nutshell an important part of the content.

According to Consumer Legislation a property is 'defective' if it doesn't fulfil one or more criteria or qualities promised by the contractor in, for example, the brochure and/or the advert. The brochure could for example mention that the property has a generator for the entire building, but at the time of delivery it's not there. The same is true for properties that are subject to legal, economic or technical failure. According to the law; the sold property has to comply with the purchaser's expectations raised by the seller.

If the purchaser finds faults, he is entitled to inform the seller in writing within 30 days after delivery, by way of a formal letter of notice. I would like to inform you that in Turkey a formal letter of notice or reminder has to be sent through a notary, as a copy of the content the letter has to be filed with the notary as evidence.

According to Consumer Legislation, the purchaser-consumer has various options. By cancelling the purchase agreement he can claim back the purchase amount, he can opt to have the faults repaired or to replace the property by another property. The purchaser also has the option to request a reduction in price pro rata the fault. And finally, for any damage incurred, reasonable damage compensation can be claimed.

The selling contractor has to respect the choice of the purchaser-consumer. In the event the selling party doesn't respect the request of the consumer-purchaser, the consumer-purchaser has the option to take the case to court or to file a complaint with the College of Consumer Rights. Almost every city has a College of Consumer Rights, which is often housed in the premises of the local Chamber of Commerce. The decision of the College concerning disputes is final for all parties.

In short; Make sure that you get proper advice before you purchase a property.

If you decide to purchase a new development, it is advisable to always have a notarial agreement with the contractor so that you will enjoy all the benefits offered by the Consumer Legislation.

Owner’s Association

Sooner or later all foreigners owning an apartment in Turkey will have to face it: The Owner's Association.

The Owner's Association (Kat Malikleri Kurulu) is an administrative entity which has its legal foundation in the Apartment Rights Act also called the Apartment Regulations. The Association's objective is to manage and keep in good repair a building that consists of private and communal property components according to the Apartments Regulations.

The Apartment Regulations also apply to private dwellings belonging to a project style residential park. It is important not to confuse this type of association with associations based on the Turkish Association Act, the so called Dernek.

A lot could be written about the Owner's Association but I will limit this story to a number of amendments to the Apartment Regulations which were introduced on 14 November 2007.

1. A finished apartment building which is divided into private ownership units has to be transformed into housing units and has to be registered at the Tapu office as 'dwelling' (= kat mülkiyet) within 1 year of receipt of an ISKAN, also called yapı kullanım izni, under penalty of a fine for the entire building.

Every member of the Owner's Association must carry out the necessary actions and payments at the request of the administrator or one of the apartment's owners to enable the board of the association to complete registration at the Tapu office. Uncooperative apartment owners risk fines of 1000 YTL per apartment he owns.

The clerk at the Tapu office will send a copy of the new Tapu certificate to every apartment owner after the building has been registered as 'housing units' (kat mülkiyet). This makes very-little legal difference to the owners but they will have to pay more property tax to the Municipality.

2. Another important and fundamental change relates to apartment owners who don't pay maintenance money in time, don't pay at all, don't behave appropriately or don't comply with the association's administrative rules. Legislation has tightened regulations regarding owners who misbehave or deliberately refuse to pay maintenance money and has improved opportunities to take legal action against these owners. It is now less problematic to publicly sell the apartment of a misbehaving owner by intervention of a judge.

3. The previous Apartment Regulations did not include the possibility of establishing an Owner's Association for dwellings in residential housing parks that are part of one project but are legally situated on separate lots and sections. Lack of jurisdiction regarding this created practical problems such as not being able to collect maintenance money. The current changes enable owners of houses or buildings on separate lots and sections to join in one Owner's Association. I think this is a welcome relief for residential parks in particular.

4. The last notable change relates to building projects of several apartment buildings or several residential parks on separate lots and sections. Legislation not only provides for the administration of Owner's Associations for the same building but also for different types of administration such as administration per island (ada) and administration per several buildings (toplu yapı). These types of administrations must communicate and act according to the legislation. A general members meeting per ada and per toplu yapı must be held biannually.