Real estate purchase and sale processes are critical transactions where individuals and businesses have the opportunity to acquire property or utilize their existing assets by making significant investments. However, these processes are not only limited to financial aspects, but also involve complex legal arrangements, contract terms and the legal status of the real estate. During the purchase and sale process, important issues such as title deeds, zoning status, mortgages and liens, as well as potential legal risks need to be considered. In this context, legal support from an experienced lawyer plays a critical role in protecting clients’ rights, obtaining the necessary documents and avoiding potential disputes at every stage of the process. Thus, the purchase and sale of real estate is more reliable, smooth and legally sound. The purchase process involves more than one stage:
Examining the Legal Status of the Real Estate
All kinds of legal restrictions (mortgages, seizures, annotations, injunctions) and obligations (debts, penalties) on the immovable property are examined in detail. The documents obtained from the Land Registry Office provide the client with full information about the history and current status of the real estate. Here, we can briefly explain the services we will provide for you as follows.
1-) Examination of the Land Registry Record
One of the first things the lawyer does regarding the legal status of the immovable property is to examine the property records obtained from the Land Registry Office. Land registry records show the ownership status of the immovable property and the restrictions on it (mortgage, lien, annotation, etc.). In this process, the lawyer
Checking the Ownership Status: Verifies to whom the ownership right stated in the title deed really belongs. If the buyer is going to take over the real estate from the seller, he/she checks whether the seller is the owner of the title deed. If the seller is not the owner of a real estate property, this can lead to serious legal risks and problems. The possibilities that may arise for the buyer in such a scenario and the legal actions to be taken are as follows:
1.1. Nullity of the Sale
If the seller is not the actual owner of the immovable registered in the land registry, then the sale transaction is legally invalid. A person who is not the owner of the immovable property is not authorized to sell the immovable property, which renders the sales contract null and void. The buyer cannot transfer the title deed and cannot actually take over the immovable property. The legal actions to be taken in this case are as follows:
Cancellation of the Sales Contract: The buyer may file a lawsuit for the annulment of the invalid sales contract. In this case, the buyer may request the return of the price paid based on the invalidity of the contract.
Claim for Compensation: If the buyer has suffered damages due to misleading statements or concealed information, he may claim compensation against the seller. The buyer may request financial compensation from the seller in order to compensate for the buyer’s loss.
1.2. Inheritance of the Seller
Sometimes the ownership of the immovable property may not yet be registered in the title deed, for example, the seller is the heir of the immovable property but has not yet registered his name in the title deed. In this case, in order for the seller to obtain the right of ownership, the inherited ownership must first be registered in the title deed. The lawyer follows the following steps in this process:
Inheritance Registration: In order to inherit the title deed of the immovable property, the seller must apply to the court to obtain a certificate of inheritance (certificate of inheritance) and register the title deed with this document. However, the sale of the immovable cannot be valid before the registration process.
Dispute Between Heirs: If the ownership of the immovable property belongs to more than one heir and there is a dispute between them, it is not possible to sell or transfer the immovable property. In this case, it may be necessary to reach an agreement between the heirs through settlement or to divide the immovable property by a court decision.
1.3. Situations where the seller is an agent
If the seller is not the owner of the real estate but is acting as the agent of the owner, the validity of this power of attorney should be carefully examined. The lawyer makes the following checks:
Examination of the Power of Attorney: If the seller is authorized to make transactions on behalf of the owner, the notarized power of attorney showing this is examined. The validity period of the power of attorney, its content and whether it covers the sale of real estate are checked.
Limits of Authority: If the power of attorney authorizes the seller to sell the immovable property, the transaction can be executed. However, if the power of attorney is insufficient or does not contain the authorization to sell, the sale transaction is still legally invalid and the transfer of ownership cannot be made.
1.4. Fraud Situation
If the seller pretends to be the owner of the immovable property when he or she is not, this is considered fraud. In such a case, the buyer can take the following legal steps:
Criminal Prosecution: The buyer may file a criminal complaint to the prosecutor’s office for the crime of fraud if a person who does not own the title deed tries to sell the real estate. If the crime is detected, the seller is criminally liable.
Compensation and Refund of Payment: In case of fraud, a legal process is also initiated for the compensation of the financial damage suffered by the buyer. The buyer may claim compensation against the seller for the return of the price paid and for damages.
1.5. Administrative Restrictions or Expropriation
In some cases, the seller may technically own the immovable property, but there may be an expropriation or other administrative restriction on the immovable property. It is usually not possible to transfer an immovable property for which expropriation proceedings have been initiated. In this case, the lawyer takes the following steps:
Review of the Expropriation Process: Investigate whether the immovable property is subject to expropriation or whether it is located in an area reserved for public benefit in the zoning plans.
Negotiation and Compensation: For an immovable that has entered the expropriation process, negotiations can be held between the seller and the buyer, and an agreement can be reached on the expropriation price or the sale of the immovable. If the sale is not possible, the buyer may request compensation.
Checks Mortgage and Foreclosure Status: Investigates whether there is a mortgage, lien, annotation or other restrictive measure on the immovable property. A mortgaged property means that the buyer risks losing the property if the debt is not paid. A foreclosure may mean that the property cannot be sold. The existence of a mortgage on a property is an important element that directly affects the rights of the buyer and the status of the property. A mortgage means that the real estate is pledged as collateral against a creditor. In case of non-payment of the debt, the creditor can have the real estate sold through foreclosure. Therefore, the following important points should be taken into consideration when buying a mortgaged property:
1.6. Is it Possible to Buy a Mortgaged Property?
Yes, it is possible to sell and transfer a mortgaged real estate. However, the mortgage may affect the buyer’s responsibilities and carries certain risks. The buyer can purchase the real estate, but the obligations of the mortgage are transferred with the real estate. That is, when the buyer purchases the immovable property, if the mortgage has not been removed, he/she may face the risk of losing the immovable property in case of non-payment of the debt.
1.7. Removal of the Mortgage
The safest way for the buyer is to remove the mortgage before the purchase of the mortgaged real estate. Two basic methods can be followed in this process:
Seller Settles the Debt: The seller pays the mortgaged debt of the immovable property and ensures that the mortgage is canceled. This can be done during the title deed process. The transfer should not be completed before the buyer receives the document showing that the mortgage has been removed from the land registry.
The buyer settles the debt: Sometimes the buyer agrees to pay the seller’s debt and pays for the removal of the mortgage. In this case, the buyer will settle the debt on behalf of the seller and ensure that the mortgage is removed. However, this must be secured by contract. The amount paid by the buyer may be deducted from the sale price.
1.8. Transfer of Mortgage Debt
In some cases, the buyer may take over the mortgaged debt. In this scenario, the following steps are followed:
Agreement with the creditor: If the buyer wishes to take over the mortgaged debt when purchasing the property, an agreement must be reached with the creditor (usually a bank). If the creditor accepts the buyer as a debtor, the buyer continues to pay the mortgaged debt.
Examination of the Debt Status: The buyer should carefully examine the amount and payment terms of the mortgaged debt before taking over the property. Information such as interest rates, maturity and payment terms of the debt should be clarified.
1.9. Risks of Failure to Remove the Mortgage
A mortgage may result in the property being sold by foreclosure if the debt is not paid. The buyer should take this risk into consideration:
Risk of Foreclosure Sale: In case of non-payment of the debt, the creditor may resort to enforcement proceedings for the sale of the mortgaged real estate. In this case, the buyer faces the risk of losing the property and may suffer damages.
Sale Restrictions: Some mortgages may not allow the sale of the real estate before the debt is paid in full. This results in the buyer not having full rights to the real estate.
1.10 Adding Mortgage-Related Provisions to the Contract
The buyer can secure himself by having the seller include a clause on the removal of the mortgage in the contract with the seller. The following clauses may be included in the contract:
Obligation to Release the Mortgage: A clause stating that the seller shall remove the mortgage on the immovable property before the sale.
Transfer of Mortgage Debt to the Buyer: A clause stating that the mortgaged debt will be transferred to the buyer and an agreement will be reached with the creditor bank.
Liability of the Seller for Non-Payment of the Debt: Compensation obligation against the buyer in case of non-payment of the debt by the seller and initiation of enforcement proceedings.
Injunctions and Other Restrictions: The lawyer will check whether there are any injunctions (temporary restrictions imposed by court order) on the real estate. These restrictions may generally prevent the sale, transfer or transaction of the immovable property.
1.11. Injunctions
Injunctions issued by the courts may impose temporary restrictions on the immovable property. These measures are usually
Preventing the transfer of ownership: It is imposed to stop the transfer of immovable property due to an ongoing lawsuit or dispute between the parties.
Suspension of transactions: It may prevent any transaction (sale, lease, etc.) on the immovable property. Injunctions aim to protect the immovable property for the duration of the lawsuit and may be lifted depending on the outcome of the lawsuit.
1.12 Injunction
An interim injunction is a temporary measure issued by the court and applied for the protection of real estate. This measure usually aims to prevent damage to the immovable property in the course of a lawsuit. Precautionary measures are intended to protect the rights on the immovable property and may restrict transactions on the immovable property.
1.13. Expropriation
The state or public institutions may decide to expropriate immovable property for a specific public interest. The expropriation process involves the acquisition of the immovable property by the state or public institutions and the restriction of the rights of the buyers on the immovable property. Expropriated immovables may not be valid for purchase and sale transactions.
1.14 Zoning Restrictions
Under zoning law, there may be various restrictions on the construction and use of immovable property. These restrictions may be imposed on the basis of documents such as building permits, occupancy permits, or zoning plans. Zoning restrictions may prevent the use of the immovable property for a specific purpose.
1.15. Annotations
The title deed of real estate may contain annotations affecting the use or transfer of the real estate. Annotations usually express certain obligations or restrictions and may limit the transactions on the immovable property.
1.16. Restriction Conditions
Sometimes the owner of the immovable property may be designated as restricted by the court (for example, in terms of mental health or marital status). The restricted status restricts the authority to carry out transactions on the immovable property.
2-) Municipality and Zoning Status Review
The legal status of an immovable property is not limited to the land registry. Information from the municipality also provides critical information about the property’s use, zoning and future urban planning. The lawyer is here:
Checks the Zoning Plan: Information is obtained from the municipality where the immovable is located regarding the zoning plan and construction status. The zoning plan determines whether the property can be used for commercial, residential, agricultural or industrial purposes. In addition, restrictions on the structures that can be built on the immovable are also included in this document.
Examines Demolition and Penalty Decisions: By looking at the records in the municipality, it is checked whether there is a demolition decision, a council decision or any other sanction on the immovable property. For example, there may be a demolition decision regarding illegal buildings without a building registration certificate, which poses a serious risk for the buyer.
Conformity of the Building Registration Certificate: Building registration certificates obtained by taking advantage of the zoning amnesty are checked to see if they are compatible with the zoning status of the immovable. If there is a discrepancy between the building registration certificate and the real estate, this may cause legal problems in the future.
a) Condominium Ownership and Common Use Areas
If the property is an apartment or business premises, the condominium ownership or condominium easement is checked. The lawyer examines the management plans of such properties, rights over common areas and obligations such as dues. At this stage
Reviewing the Management Plan: The management plan, which determines the use of common areas and the rights and responsibilities of the condominium owners, provides information about the changes that can be made within the apartment or complex and restrictions on use.
Dues Debt: For immovables subject to condominium ownership, it is checked whether there are dues debts belonging to the apartment or site management. These debts must be paid before the sale is realized, otherwise the buyer may be liable for these debts.
b) Appraisal Report and Valuation
The appraisal report, which is frequently used in real estate purchases, is prepared to determine the real market value of the real estate. This report is especially critical in real estate purchases for citizenship or residence permit applications. The lawyer checks the accuracy of the appraisal report and whether it is in the client’s best interests.
Reviewing the Appraisal Report: The report determines whether the current market value of the real estate is accurate. For citizenship applications, verifications are made as to whether the property meets the minimum value limits.
Negotiations on the Valuation Result: If the value of the property is lower than stated in the report or is not eligible for citizenship, the lawyer will enter into negotiations with the seller. Legal proceedings are carried out to correct the report or for the seller to cover the costs.
c) Debts and Taxes
It is important to examine whether there are tax debts or other public debts in the purchase of real estate. Lawyer, in this process:
Property Tax and Other Debts: The lawyer checks for any unpaid property tax or other tax debts related to the real estate. The lawyer monitors whether these debts are paid in order to ensure that the real estate is taken over debt-free.
DAB Certificate (Value Increase Certificate): Checks are made regarding the DAB (value increase tax), which is one of the tax types to be paid by the buyer during the sale. It should be noted that if this document is missing or incorrect, the buyer may face additional tax obligations.
d) Ownership Rights and Registration Procedures
The final stage is the registration of the ownership of the real estate in the name of the new buyer. During this process, the lawyer ensures that the client’s title deed registration is complete and accurate. The title deed registration guarantees the buyer’s right of ownership of the immovable property and protects this right against third parties.
1. Building Registration Certificate and Control of Disputes: Building Registration Certificates, which emerged in Turkey especially after the illegal construction and zoning amnesty processes, play an important role in the legal status of the real estate. These documents are physically obtained and checked for full compliance with the structures on the immovable property. In case of any inconsistency or deficiency in the documents, necessary applications are made to revise the building registration certificate.
2. Preparation of the Real Estate Purchase and Sale Agreement: One of the most important stages in the purchase of real estate is the preparation of a contract that protects the client’s interests. Our office meticulously prepares the purchase or pre-purchase agreements to be signed between the client and the seller. In these contracts
- Full and complete description of the real estate subject to sale,
- Determination of the sale price and payment terms,
- The amount of the deposit and the conditions for the return of this deposit,
- Penalty terms in case the seller or buyer withdraws from the contract,
- The seller’s responsibilities based on the appraisal report (e.g., the seller’s responsibility to cover the cost if the report is unfavorable),
- The obligations of the seller until the receipt of the certificate of eligibility of the immovable property for the application for citizenship or residence permit are regulated in detail.
3. Obtaining Official Documents and Permits: Güneş & Güneş Law Office undertakes the procurement of all official documents and permits required during real estate purchase transactions. These documents include:
Documents to be obtained from the Land Registry Office: The ownership status of the immovable property, restrictions, liens, mortgages or annotations are checked. It is ensured that the client has full information about the real estate.
Examination of Municipality Records: With the documents received from the municipality, the zoning status of the immovable, demolition decisions, penalty decisions and information on its current status are checked.
Building Registration Certificates and Expertise Report: In addition to the eligibility documents requested especially in citizenship applications, it is ensured that the appraisal reports determining the current market value of the immovable are obtained and checked for accuracy.
4. Negotiations and Legal Consultancy: It is of critical importance to conduct negotiations between the parties in the real estate purchase and sale process. Our office negotiates on behalf of the client on the following issues:
Seller’s Withdrawal and Penalties: In case the seller withdraws from the sale of the real estate, it is important to determine the penalty terms, to regulate these terms in a reasonable and fair manner and to include them in the contract in order to prevent the client from being victimized.
Deposit and Return Conditions: Assurance provisions such as the return of the deposit determined in the purchase of real estate in the same way within 1 business day in case of cancellation of the sale protect the interests of the client.
If the Valuation Report is Negative: In case the appraisal report for the citizenship application is negative, negotiations are made for the seller to cover additional expenses such as the report fee.
5. Transfer Transactions: The presence or absence of the client in the country at the time of the real estate transfer requires the transactions to be carried out differently.
In case the client is not present in the country: Güneş & Güneş Law Office realizes the transfer of real estate on behalf of the client with a power of attorney, collects the transfer fee from the buyer and transfers it to the client. In addition, cancellation of subscriptions, notifications to the relevant institutions (municipality, electricity, water, etc.) before and after the transfer are meticulously carried out by our office.
In case the client is in the country: The transfer of real estate is carried out in accordance with the client’s instructions. Negotiations and documents are prepared to protect the client’s rights at the highest level during the transfer process.
6. Citizenship Application and Certificate of Eligibility: Another important service that is frequently encountered in real estate purchases is obtaining the certificate of eligibility required for citizenship application. This document, which states whether the purchased real estate is eligible for citizenship, is obtained from the relevant Land Registry Office. Once the documents are verified, all necessary procedures to realize the client’s citizenship application are carried out by our office.
The Importance of Legal Support and the Role of the Lawyer in Real Estate Purchase and Sale Processes
If you seek legal support or advice from us in the purchase of real estate, we will provide you with the following benefits.
* Experience and Expertise: With 25 years of experience, we not only solve legal problems, but also minimize our clients’ future risks by developing preventive legal strategies.
* Right to Information: As Güneş & Güneş Law Office, we do not only provide legal services, we keep every stage of the process under control. We constantly inform our clients about the developments by making daily checks and intervene quickly in situations that develop instantly. Thanks to this proactive approach, we defend our clients’ rights in the strongest way at every step of the legal process.
* Multilingual Service: Thanks to our legal consultancy and litigation services in Turkish, English, German, Russian, Ukrainian and Dutch, we provide fast and effective solutions to the needs of our local and foreign clients.
*Strategic Approach: We adopt a solution and result-oriented strategy that focuses on success. We manage our clients’ legal processes in a fast, effective and rational manner, putting them in an advantageous position in terms of time and cost.
* Protective Law Approach: By identifying and preventing problems before they arise, we ensure that our clients are protected from situations that may develop to their detriment. This proactive approach gives our clients an advantage at every stage of the legal process.
* By conducting an effective research on the real estate, you will access clear information about the real estate from institutions such as the Land Registry and the municipality.
* You will have a say about the current status of the real estate by examining the satellite images and parcel status for you.
* If the real estate in question is defective in terms of zoning or legal aspects, you will learn this before the sale and you will be able to return from the transaction without any damage.
* You will experience a safe process away from all kinds of forgery and fraud.
* You will be able to negotiate effectively with the landlord or real estate agents to ensure that you purchase the real estate at its real value, and the payments and money transfers will be made under the assurance of a lawyer.
* You will reach effective and fast solutions regarding bureaucracy.
*A contract will be made with our solution partners who are experts in their fields to obtain the Real Estate Appraisal Report that will help to determine the current value of the real estate in question, whether the characteristics of the marketed real estate reflect the reality, calculate the return period of the investment to be made in the real estate to the investor and similar issues, and the value and technical features of the real estate will be determined with the report in question.
* The real estate sale or pre-sale contracts to be approved by the notary will be prepared by us and the provisions of the contract will be arranged in a way to protect the client’s interest.
* In case you are unable or unwilling to be present at the time of sale, we can take the real estate on your behalf and register the title deed on your behalf with the power of attorney in the form of an arrangement you will give us from notaries or Turkish Consulates abroad.
For more information and comprehensive consultancy services, please contact Güneş & Güneş Law Office.
