Where a land registry entry has no valid legal basis, the true owner may sue to cancel it and have the property registered in their name. Collusive transfers by a deceased to defeat heirs, misuse of a power of attorney and lack of capacity are the most common grounds; some grounds are subject to short time bars.
The land registry shows who holds rights over real property, and everyone relies on it when transacting. Not every entry, however, rests on a sound legal basis. An action for cancellation and re-registration (tapu iptal ve tescil davası) seeks to correct an unlawful entry and register the property in the name of the true owner.
1. What is an unlawful registration? Under Article 1024 of the Turkish Civil Code (TMK), the registration of a right in rem is unlawful if it lacks a legal basis or rests on a legally invalid transaction. A person whose right in rem is infringed may sue to correct the registration under Article 1025. The action for cancellation and re-registration is the most common way of exercising this right.
2. Most common grounds:
• Collusive transfer by the deceased (muris muvazaası): the deceased records a gift as a sale in the land registry in order to deprive heirs of the property. Under the Court of Cassation's Decision on the Unification of Case Law dated 1 April 1974 (No. 1/2), every heir, whether or not entitled to a reserved share, may seek cancellation after the deceased's death.
• Misuse of a power of attorney: the attorney-in-fact transfers the property against the principal's interests, usually in collusion with the other party, for a low price or to a relative.
• Lack of capacity: acts of a person lacking the capacity to act reasonably at the time have no legal effect (TMK Art. 15). This is usually proven by medical records and a Forensic Medicine Institute report.
• Forgery: transfers made with a forged power of attorney or identity document are legally invalid.
• Mistake, fraud and duress: transactions based on these grounds are voidable (Turkish Code of Obligations (TBK) Arts. 30-39).
3. Time limits. These vary by ground:
• For absolute nullity, such as collusive transfers, lack of capacity and forgery, the action is generally not subject to a time limit.
• For mistake, fraud or duress, the party must declare that they are not bound within one year of discovering the mistake or fraud, or of the duress ceasing (TBK Art. 39).
• For entries based on a cadastral survey, an action relying on legal grounds predating the survey must be filed within ten years of the survey becoming final (Cadastre Law No. 3402, Art. 12/3).
• Where a reserved share has been infringed, the separate action for abatement (tenkis) is subject to the one-year and ten-year limits in TMK Article 571.
4. Bona fide third parties. A third party who acquires property relying in good faith on the land registry is protected (TMK Art. 1023). It is therefore important to act before the property changes hands. Requesting an interim injunction annotated on the title register when filing suit is the key measure to prevent the case from becoming futile (Code of Civil Procedure (HMK) Art. 389 et seq.).
5. Competent court. The action is filed with the civil court of first instance where the property is located. In disputes over rights in rem, this jurisdiction is exclusive (HMK Art. 12). Cancellation and re-registration actions are not subject to mandatory pre-trial mediation. Court fees are charged proportionally on the value of the property.
6. Documents. The title record and the land registry transaction file, any power of attorney, the certificate of inheritance, medical records from the transaction date, payment records and witness details form the basis of the case. Whether the sale price was actually paid and the true value of the property are often decisive, particularly in collusive transfer cases.
Conclusion. The outcome of these actions depends largely on proving the true nature of the transaction and preventing the property from passing to third parties. Acting within the time limits and seeking an interim injunction promptly are the most effective ways to avoid losing one's rights.
This article is for general information only and does not constitute legal advice. Please consult a lawyer about your specific situation.
← All articles