Promise to sell an immovable property (promise to sell real estate) is a contract by which the parties undertake to enter into a sale contract for an immovable property in the future. It is a preliminary contract: it does not transfer ownership; it creates an obligation to enter into the contract that will transfer ownership. As a rule, it must be executed before a notary public in the official deed form to be valid.
A promise to sell gives the purchaser a personal right, because ownership of an immovable property is acquired by registration (Turkish Civil Code art. 705/1). The protection of this right against persons who subsequently acquire rights over the immovable property depends on an annotation in the title deed.
For the general framework of immovable property law, see the Tenancy and Real Estate Law page; for the general rules on form, default and limitation periods, see the Contract Law page. The rules specific to a promise to sell are explained here.
In what form is a promise to sell executed before a notary public?
The law is clear: for a sale of an immovable property to be valid, the contract must be executed in official form; a promise to sell an immovable property, and repurchase and purchase-option contracts, will not be valid unless they are executed in official form (Turkish Code of Obligations art. 237/1-2). The same conclusion follows from the rule on preliminary contracts: save for the exceptions provided by law, the validity of a preliminary contract depends on the form required for the contract to be entered into in the future (Turkish Code of Obligations art. 29/2).
The Turkish Notary Law lists a “promise to sell real estate” among the transactions that must be executed in the official deed form (art. 89). Authentication of a signature does not satisfy this requirement: the notary public’s authentication of a signature certifies that the authenticated signature belongs to the person concerned and does not cover the contents of the legal transaction (Turkish Notary Law art. 82/3). A paper that is taken to a notary public and whose signature is merely authenticated does not become a promise to sell.
Special rule for a consumer who buys a dwelling from a building contractor. In a sale of a dwelling on a prepayment basis in which the price is paid in advance, the promise to sell must be executed before a notary public in the official deed form; if this is not done, the seller cannot subsequently rely on the invalidity of the contract to the consumer’s detriment. Nor may the seller demand any payment from the consumer under any name until a valid contract has been made (Consumer Protection Act No. 6502 art. 41). This rule protects the consumer; it does not remove the requirement to have the contract executed before a notary public.
Sale of a dwelling on a prepayment basis: when buying a dwelling from a building contractor
If the seller sells the dwelling for commercial or professional purposes, the purchaser is a consumer and the price is paid either in full or in instalments before delivery, the contract is a sale of a dwelling on a prepayment basis (Act No. 6502 art. 40/1). The law attaches the following rules to these sales:
- At least one day before the contract, the consumer must be given a pre-contract information form; a contract cannot be made before a building permit has been obtained (art. 40/2-3).
- The consumer may withdraw within fourteen days without giving any reason and without paying a penalty (art. 43/1).
- The dwelling must be delivered within the period promised in the contract; this period may not exceed forty-eight months from the date of the contract (art. 44/1).
- The consumer may withdraw from the contract without giving any reason up to twenty-four months from the date of the contract; in that case the seller may only demand the statutory expenses and a limited compensation calculated according to the period set out in the law. A seller who does not perform its own obligations cannot demand any payment from the consumer (art. 45).
- The seller’s liability for defects in the dwelling is subject to a five-year limitation period from delivery, unless a longer period has been provided for (art. 12/1).
What happens to the price paid under a promise to sell not executed before a notary public?
A contract made without complying with the required form produces no legal effect (Turkish Code of Obligations art. 12/2); registration in the title deed cannot be sought on the basis of such a contract. The price paid may, however, be reclaimed: enrichment based on an invalid ground must be returned (Turkish Code of Obligations art. 77). This claim must be brought within two years from the date on which the right to reclaim was learned and, in any event, within ten years from the date on which the enrichment occurred (Turkish Code of Obligations art. 82).
In practice, the time elapsed and changes in the value of money are taken into account when the price is returned, in accordance with the principle of corrective justice. In exceptional cases where the performances have been rendered wholly or to a large extent, reliance on the lack of compliance with the form requirement may also be regarded as a manifest abuse of a right (Turkish Civil Code art. 2); this must be assessed separately in each case.
It is important to document payments made in cash; the law requires legal transactions exceeding a certain value to be proved by a written instrument (Turkish Code of Civil Procedure art. 200). For a consumer who buys a dwelling from a building contractor, the rule in Act No. 6502 art. 41 above also applies.
The difference between a promise-to-sell agreement and a sale contract
| Promise-to-sell agreement | Immovable property sale contract | |
|---|---|---|
| Where executed | Before a notary public, in the form of a notarial deed (Turkish Notary Law art. 89) | At the Turkish land registry directorate by official deed; following the 2022 amendment, also before a notary public (Turkish Notary Law art. 61/A); registration is carried out by the Turkish land registry directorate |
| What it creates | Personal right: the obligation to enter into a sale contract | Ownership: acquired by registration (Turkish Civil Code art. 705) |
| As against third parties | Only if an annotation is made, as against persons who subsequently acquire rights (Turkish Civil Code art. 1009) | Registration may be asserted against everyone |
| If not performed | Registration by court order may be sought from the court (Turkish Civil Code art. 716) | Ownership has passed by registration |
A promise-to-sell agreement is not a transaction that replaces the sale contract; it is a commitment made on the way to concluding it.
What changes if a promise to sell is annotated in the land registry?
An annotation is not a condition for the validity of the contract, but a condition for protection against third parties. The law expressly lists a promise to sell among the rights that may be annotated and provides that, by virtue of the annotation, such rights may be asserted against the holders of rights subsequently acquired over that immovable property (Turkish Civil Code art. 1009).
An annotation is not made unless requested. A promise-to-sell agreement executed by a notary public is annotated in the land registry if one of the parties so requests (Land Registry Law art. 26). Under the provision of the Turkish Notary Law amended in 2022, a notary public may also, if one of the parties so requests and pays the fees and expenses, annotate the promise to sell in the land registry through the land registry information system (Turkish Notary Law art. 60/3). A simple written contract cannot be annotated. The land registry record should be checked to confirm that the annotation has been made; no one may claim not to know of an entry in the land registry (Turkish Civil Code art. 1020).
An annotation does not prohibit the sale of the immovable property; however, a person who acquires the immovable property after the annotation is bound by the buyer’s right. If there is no annotation and the promisor has transferred the immovable property to another person, the buyer cannot, as a rule, seek registration from that person; the buyer may claim compensation from the promisor for loss arising from non-performance of the contract (Turkish Code of Obligations art. 112).
For how many years is an annotation valid, and what is the limitation period?
The Land Registry Law imposes a time limit on annotations:
If no sale is made or no right of servitude is established and registered in the land registry within five years from the annotation, the annotation shall be cancelled ex officio by the director of the land registry or by land registry officers (Land Registry Law art. 26).
Five years is the duration of the annotation, not of the right arising from the contract. When the annotation is removed, the contract does not cease to exist; what ceases is the protection the annotation afforded: after removal, the right can no longer be asserted on the basis of the annotation against persons who acquired rights over the immovable after its removal.
There is no special statutory period for the claim arising from the contract; the general rule applies: unless the law provides otherwise, every claim is subject to a ten-year limitation period (Turkish Code of Obligations art. 146). The period begins to run when the claim becomes due, that is, when the day agreed in the contract for transfer arrives; if no time for performance has been agreed, the obligation is in principle due from the moment it arises (Turkish Code of Obligations art. 90, art. 149). The debtor’s acknowledgement of the debt or partial performance, and the creditor’s filing of a lawsuit, interrupt the limitation period (Turkish Code of Obligations art. 154). The judge does not take limitation into account ex officio; the debtor must raise it (Turkish Code of Obligations art. 161). In practice, if possession of the immovable has been delivered to the buyer, the seller’s limitation defence is considered contrary to the principle of good faith (Turkish Civil Code art. 2) and is not upheld; if the immovable has not been delivered, the ten-year period constitutes a real risk of loss of rights.
| Period | Commencement | Basis | When it expires | |
|---|---|---|---|---|
| Annotation in the land registry | Five years | Date of annotation | Turkish Land Registry Law art. 26 | The annotation is removed ex officio; the protection of the annotation no longer exists against persons who acquire rights after its removal |
| Claim arising from the contract | Ten years | The day the claim becomes due | Turkish Code of Obligations art. 146, art. 149 | The debtor may raise the defence of limitation |
It should not be confused with rights of pre-emption, purchase and repurchase. Turkish Code of Obligations art. 238 states: “rights of pre-emption, repurchase and purchase may be agreed for a maximum period of ten years and may be annotated in the land registry for the period determined by law”. The article does not mention the promise of sale of immovable property; although the promise of sale was mentioned together with purchase and repurchase contracts in the preceding article, it is not mentioned here. Whether this limitation can be applied by analogy to promises that grant a right to purchase to only one party is not resolved in the law. The rule on the non-transferability of these three rights (Turkish Code of Obligations art. 239) also does not mention the promise of sale; the transfer of the right arising from a promise of sale is assessed under the general provisions on assignment of claims and contracts (Turkish Code of Obligations art. 183-184, art. 205).
If the promisor does not transfer the title deed: compelling registration
For this situation the law provides a general remedy: a person who has a personal right to demand registration of ownership in his or her own name from the owner based on a legal ground that will form the basis for acquisition of ownership may, if the owner avoids doing so, request the judge to order transfer of ownership by judgment (Turkish Civil Code art. 716/1). In practice, the right arising from a promise of sale is asserted through an action for registration based on this provision.
A promise of sale is a contract imposing mutual obligations; the buyer seeking registration must have paid, or offered to pay, the price that he or she is obliged to pay first under the contract (Turkish Code of Obligations art. 97). In practice, it is required that the remaining price be deposited with the place designated by the court during the proceedings.
Decisions concerning rights in rem over immovable property cannot be enforced until they become final (Turkish Code of Civil Procedure art. 350/2, art. 367/2). Ownership is acquired by court judgment before registration; however, in order to carry out dispositions such as sale over the immovable, the judgment must be registered in the land registry, and registration can be requested directly on the basis of the judgment (Turkish Civil Code art. 705/2, art. 716/2).
If instead of registration one wishes to be released from the contract, the provisions on default apply: the promisor is given a reasonable period; if this period also expires without result, the creditor may immediately declare that he or she renounces performance and claim compensation for his or her loss, or may withdraw from the contract and claim back what he or she has paid (Turkish Code of Obligations art. 123–125). If the title deed has already been transferred and the invalidity of the transfer is being asserted, the matter is an action for cancellation of the title deed and re-registration.
Preventing the sale of the immovable while the lawsuit is pending. Filing a lawsuit does not by itself prevent the owner from transferring the immovable to another person. For this purpose, an interim injunction is requested from the court and the injunction order is annotated in the land registry; the restriction annotated can also be asserted against persons who subsequently acquire rights (Turkish Code of Civil Procedure art. 389; Turkish Civil Code art. 1010). If the enforcement of the injunction order is not requested within one week after the order is notified to the person requesting the injunction; or, where the injunction was granted before filing of a lawsuit, if the substantive lawsuit is not filed within two weeks of the request for enforcement, the injunction automatically ceases to have effect (Turkish Code of Civil Procedure art. 393/1, art. 397/1). As a rule, the person requesting an injunction provides security; if the request is based on an official document such as a notarial deed, the court may decide that no security is required (Turkish Code of Civil Procedure art. 392/1). Since the Land Registry Law does not list the filing of a lawsuit as a ground preventing the five-year removal, it is important to obtain an annotation of injunction before the period of the annotation expires. The operation of the injunction is explained in detail in the article on action for cancellation of the title deed and re-registration.
In which court and where is the action filed?
The competent court is, as a rule, the civil court of first instance (Turkish Code of Civil Procedure art. 2); in a promise of sale between two persons, the action is heard there. A promise of sale is not among the four types of dispute for which mandatory mediation is prescribed (tenancy, partition and dissolution of co-ownership, condominium ownership, neighbour rights) (Act No. 6325, art. 18/B/1). Rules of subject-matter jurisdiction are a matter of public policy (Turkish Code of Civil Procedure art. 1), and two exceptions arise depending on who the parties are:
- If the seller is acting for commercial or professional purposes and the buyer is a consumer, the dispute arises from a consumer transaction and the consumer court has jurisdiction (Act No. 6502, art. 3, art. 73/1). In disputes to be heard by this court, applying to a mediator before filing a lawsuit is a condition of admissibility; however, disputes that are in the nature of consumer transactions and arise from the immovable itself, such as compelling registration, are excluded from this requirement (art. 73/A). For disputes below the value determined by law and updated each year, applying to the consumer arbitration board is mandatory (art. 68).
- If both parties are merchants and the matter relates to the commercial enterprise of both, the action is a commercial action and is heard in the commercial court of first instance; in actions for a sum of money, compensation, annulment of objection, negative declaratory relief and recovery, mediation is a condition of admissibility (Turkish Commercial Code art. 4, art. 5, art. 5/A).
An action filed without first applying to mandatory mediation is dismissed on procedural grounds; during mediation, the limitation period is suspended (Act No. 6325, art. 18/A).
Territorial jurisdiction. Since compelling registration is an action that may lead to a change in ownership of a right in rem, the court of the place where the immovable is situated has exclusive jurisdiction (Turkish Code of Civil Procedure art. 12/1): for an immovable in Alanya, the action is heard in Alanya. For monetary claims such as recovery of the price paid, the courts of the defendant’s domicile and of the place of performance of the contract (Turkish Code of Civil Procedure art. 6, art. 10), and in consumer actions also the consumer court at the consumer’s domicile (Act No. 6502, art. 73/5), have jurisdiction.
Frequently asked questions
Can we make a promise-to-sell agreement by hand, in simple written form?
As a rule, no: a promise to sell immovable property is not valid unless executed in official form (Turkish Code of Obligations art. 237/2), and merely having a signature authenticated by a notary public is not sufficient (Turkish Notary Law art. 82/3). Exceptionally, a seller who sells a dwelling for commercial purposes cannot raise non-compliance with the form requirement against a consumer who has paid the price in advance and purchased it (Act No. 6502, art. 41/1).
What do I lose if I do not have the agreement annotated in the title deed?
Not its validity, but its protection against third parties. A right that has been annotated can also be asserted against persons who subsequently acquire rights (Turkish Civil Code art. 1009). If there is no annotation and the immovable property has been transferred to another person, as a rule you are left with a claim for compensation against the promisor (Turkish Code of Obligations art. 112).
For how many years is a promise to sell valid? If the annotation is removed, does my right come to an end?
There are two separate periods. The annotation in the title deed is removed ex officio if the sale has not been effected within five years (Title Deed Law art. 26); this is the end of the protection afforded by the annotation, not of the right. The claim arising from the agreement, on the other hand, is subject to the general ten-year limitation period, and the period begins when the claim becomes due (Turkish Code of Obligations art. 146, art. 149).
Can a promise to sell be unilaterally terminated?
The agreement does not come to an end automatically merely because one of the parties wishes it to. If the other party fails to perform its obligation, it is given an appropriate period; if that period expires without result, the agreement may be rescinded and each party may reclaim what it has given (Turkish Code of Obligations art. 123, art. 125). A consumer who buys a dwelling from a building contractor also has separate rights of withdrawal and rescission (Act No. 6502 art. 43, art. 45).
Where is the action brought? Can we specify a different court in the agreement?
In an action to compel registration, the court of the place where the immovable property is situated has exclusive jurisdiction (Turkish Code of Civil Procedure art. 12/1), and a jurisdiction agreement cannot be made in cases of exclusive jurisdiction (Turkish Code of Civil Procedure art. 18/1). As regards monetary claims, the possibility of determining the court by agreement is available only to merchants and public legal entities (Turkish Code of Civil Procedure art. 17).
Legal basis
Turkish Civil Code No. 4721 — art. 2 (good faith), art. 705 (registration), art. 716 (the right to request registration and transfer by court order), art. 1009 (annotation of the right arising from a promise to sell), art. 1010 (annotation of restrictions on the power of disposal), art. 1020 (public accessibility of the land registry) — mevzuat.gov.tr
Turkish Code of Obligations No. 6098 — art. 12 (form), art. 29 (preliminary contract), art. 77 and art. 82 (unjust enrichment and limitation), art. 90 (due date), art. 97 (order of performance), art. 112 (consequences of non-performance), art. 123–125 (granting of a period and alternative rights), art. 146, art. 149, art. 154 and art. 161 (limitation), art. 183–184 (assignment of claims), art. 205 (transfer of the agreement), art. 237 (form of a sale of immovable property and a promise to sell), art. 238–239 (duration and transfer of rights of pre-emption, purchase and buy-back) — mevzuat.gov.tr
Turkish Notary Law No. 1512 — Art. 60 (duties of notaries public; promise-to-sell agreement and annotation), Art. 61/A (sale agreement of immovable property), Art. 82 (legal effects of notarial acts), Art. 89 (transactions requiring execution in official form) — mevzuat.gov.tr
Title Deed Law No. 2644 — Art. 26 (annotation of a promise to sell and five-year removal) — mevzuat.gov.tr
Turkish Consumer Protection Law No. 6502 — Art. 3 (definitions), Art. 12 (limitation period for liability for defective goods), Art. 40–41 (sale of advance-paid housing and form requirement), Art. 43–45 (withdrawal, delivery and rescission), Art. 68 (consumer arbitration board), Art. 73 and Art. 73/A (consumer courts and mandatory mediation as a condition for bringing an action) — mevzuat.gov.tr
Turkish Code of Civil Procedure No. 6100 — Art. 1–2 (subject-matter jurisdiction), Art. 6, 10, 12, 17–18 (territorial jurisdiction and jurisdiction agreement), Art. 200 (proof by deed), Art. 350 and Art. 367 (non-enforceability before finality), Art. 389, 392–393, 397 (interim injunction) — mevzuat.gov.tr
Turkish Commercial Code No. 6102 — Art. 4–5 (commercial actions), Art. 5/A (mandatory mediation as a condition for bringing an action) — mevzuat.gov.tr
Turkish Mediation Law in Civil Disputes No. 6325 — Art. 18/A and Art. 18/B (mandatory mediation as a condition for bringing an action) — mevzuat.gov.tr
Related pages
- Tenancy and Real Estate Law — parent page
- Contract Law
- Action for cancellation of the title deed and re-registration
- Construction contract in return for a land share
This article is for general legal information purposes only and does not constitute a legal opinion. As the circumstances of each case differ, you should seek legal assistance from your attorney at law regarding your particular situation.