Turkey: Can You Request The Cancellation Of The Transfer And Registration Of This Transfer, If The Other Shareholder Transfers His/Her Share To A Non-Shareholder Third Party? If The Answer Is Affirmative, How Long Is The Prescription Period And From Which Date Does It Begin?

Article 732 of the Turkish Civil Code stipulates that "In the event that a shareholder of joint ownership sells his/her share in the immovable property to a third party in whole or in part, the other shareholders may exercise the right of pre-emption". In this regard, if the other shareholder transfers his/her share to a non-shareholder third party, the non-shareholder may request the cancellation of the transfer and the transfer of the share to himself/herself. The right of pre-emption can only be exercised through a pre-emption lawsuit to be filed against the third party who transfers the immovable property. Pursuant to Article 733 of the Turkish Civil Code, the right of pre-emption shall forfeit after three months from the date of notification of the sale to the right holder and in any case after two years from the date of sale. The aforementioned period is a period of prescription thusly shall be taken into consideration by the judge ex officio. The three-month period of prescription begins as of the date of notification to the right holder through a notary public. The mere learning of the sale without a notification by a notary does not start the 3-month prescription period.

The decision of the 6th Civil Chamber of the Court of Cassation numbered as 2007/2985, D. No. 2007/4831 and dated 24.04.2007;

"As for our case; the share subject to the lawsuit was sold to the defendant on 26.10.2005 by the other shareholder of the parcel numbered 10 for YTL 2,000. The plaintiff stated that he learnt about this sale at the end of July 2006 and filed a lawsuit on 7.8.2006. Since the sale was not notified to the plaintiff by the seller or the defendant through a notary public as explained above, it should be accepted that the lawsuit was filed within the time limit according to the specified learning date. In this case, while the court should make a decision on the merits of the matter, it was not deemed correct to make a judgement in writing, and the decision had to be reversed."

Decision of the 14th Civil Chamber of the Court of Cassation numbered as 2013/4635, D. No. 2013/6391 and dated 30.04.2013;

In the present case, the preemptive period was initiated by taking into account the notification that was made via post to the claimant who has the right of pre-emption. Since the notification made by mail is not a notification that will cause the period of prescription to begin, and the period will not begin upon learning, it cannot be considered that the period of prescription has forfeited. Therefore, it is not correct to dismiss the request on the grounds that the prescription period has lapsed.

Decision of the 14th Civil Chamber of the Court of Cassation numbered as 2013/9479 D. No. 2013/13177 and dated 22.10.2013;

"These title deed transactions that enabled the acquisition of the defendant were not notified to the plaintiff through a notary public pursuant to Article 733/3 of the Turkish Civil Code. The period required for the exercise of the pre-emption right starts with the notification of the sale through a notary public, not with mere learning. The fact that the holder of the pre-emption right has definitely learnt about the sale in any way does not cause the period of prescription to start running. Since the plaintiff was not notified in the legal terms, it is not accurate to accept the fact of learning."

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