My property has shortcomings

In a previous article I discussed what you, as a buyer, can do if the property you purchased has defects. The article covered situations where the selling party was also the builder or construction company. This time I want to cover what you, as a buyer, can do in similar situations, but when the vendor is a private individual too.

Can the buyer hold the vendor, who has not acted in a business capacity, liable for defects in the property purchased? What are the (essential) requirements and what is the time frame in which the buyer should act?

For the sake of clarity: if the property has been purchased through an estate agent then the vendors, whether they are private individuals or a construction company, remain liable for defects. After all, the buyers will have contracted to purchase from the vendors not the estate agents, who merely acted as an intermediary.

Defective supply

Defective or poor quality supplies are items which, according to the contract, have indeed been supplied, but which have been supplied in a defective or poor condition. Hidden defects are defects to the building which may only become apparent after a period of use.

Period of limitation

The law states that the period of limitation for bringing a court case in relation to defective property is five years. This period commences on the date on which the property is registered in your name at the Tapu office. The exception to this is where there is evidence that the vendors acted deliberately. In such cases the period of limitation is extended to 20 years from the date of Tapu transfer.

Where a property is purchased via a project developer the period of limitation commences on the date the property is supplied. The date of supply is not necessarily the date on which the Tapu is transferred. In practice, it is normal to use the date on which the keys are handed over and which is recorded in the contract. Although the law does not state a specific period of limitation for this, it is normal in practice to take the general term of five years, providing this is not specified otherwise in the contract.

Duty to report

The law does not mention anything about a duty to report property defects in writing in the case of a sale between private individuals. It is, however, mentioned in the case of a sale via a business. In other words, in contrast to a purchase via a project developer, it does not constitute a prerequisite to being able to bring a court case.

In the case of a purchase made via a project developer, as long as the contract does not include anything about a buildings guarantee, the buyer must notify the organisation in writing of any obvious defects within one year of the date of supply of the property, or lose the right to claim damages in this respect. Hidden defects should be notified within one year of becoming apparent.

It is important therefore that where, in your opinion, the property supplied has obvious defects, such defects are notified in writing to the builder or construction company as soon as possible. I strongly recommend that such notifications are made via a solicitor. This also ensures that the contents of the letter are recorded officially, something that can be a major factor if a court case is brought at a later date.

Buildings guarantee clause

To avoid any confusion: the duty to report defective building work within one year applies only where the contract does not include a buildings guarantee clause. Where the contract does include a buildings guarantee clause you will be able at any time within the specified period (usually five years) to seek redress, i.e. repair or resolution of the defect, or be able to claim damages.

Conclusion

In the event of both obvious and hidden defects to a property, the buyer has a lega1l right to demand that the defects be rectified or claim damages, within five years of the date of supply. Where the property is purchased via a project developer, it is essential that the buyer first notifies the organisation in writing of their concerns, unless agreed otherwise in the contract. Of course, it is always a good idea to have the circumstances of individual cases assessed on their own merits by an expert lawyer.

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.