An action for cancellation of the land-register entry and registration is an action brought on the assertion that an entry in the land register does not correspond to the true legal position, and seeking rectification of the entry so that the immovable property is registered in the claimant’s name. It is also known colloquially, in short, as an action for cancellation of the land-register entry.
The reason why the action is necessary is set out in the statute: unless the interested parties give their written consent, the land registry officer may rectify an error in the land register only by judgment of a court (the Turkish Civil Code, Art. 1027/1). In other words, if the other party does not consent, no result can be achieved by applying to the land registry directorate.
The general framework for disputes concerning immovable property is set out on the Tenancy and Real Estate Law page. This article deals with the action itself.
How is an action for cancellation of the land-register entry and registration brought? Short answer
- First, establish the basis. Why the entry is defective — sham transaction, lack of capacity, defect in consent, failure to observe the required form, cadastral error — determines the time limit for the action, the burden of proof and the person against whom the action is brought.
- Check who holds the immovable property and, if necessary, consider an interim injunction and the land-register annotation before bringing the action. If this step is skipped, it may not be possible to remedy matters later.
- Check whether the time limit has expired. The time limit differs for each basis; in some cases the statute lays down no time limit, while in others the action is dismissed outright.
- The action is, as a rule, brought before the Civil Court of First Instance for the place where the immovable property is situated, and the court fee is calculated on the value of the immovable property.
Against whom is the action brought?
The action is brought against the person appearing as owner in the entry whose cancellation is sought. Where the immovable property has passed from hand to hand, the defectiveness of the entry may be asserted directly against third parties who are not in good faith (the Turkish Civil Code, Art. 1024/3); in that case, the inclusion of the links in the chain in the proceedings arises for consideration.
If the immovable property is transferred after the action has been brought, the action does not lapse. The statute confers a choice on the claimant: the claimant may either withdraw from the action against the transferring party and continue the action against the person who has acquired the subject matter of the action, or convert the action into a compensation action against the transferring party (the Turkish Code of Civil Procedure, Art. 125/1).
Where the immovable property forms part of an estate, ownership is elbirliği mülkiyeti (joint ownership without shares), and unless the statute or a contract provides otherwise, the co-owners must decide on acts of disposition unanimously; by contrast, each co-owner may take steps to protect the rights forming part of the community, and all co-owners benefit from that protection (the Turkish Civil Code, Art. 701–702). For this reason, the proper constitution of the parties is assessed separately in files between heirs; the inheritance-law side of the matter is set out on the Inheritance Law page. A certificate of inheritance is required in order to document who the heirs are.
In which situations can an action for cancellation of the land-register entry and registration not be brought?
Here a distinction must be drawn between two different matters: situations in which the statute prevents an action from being brought, and situations which, even if an action is brought, lead to the claim being dismissed on the merits. The distinction has a practical consequence, because in the second group the action is heard and, if dismissed, costs of the proceedings and the opposing party’s attorney’s fee arise.
Situations preventing an action from being brought
Where ten years have passed since the cadastral record became final. Once ten years have passed from the date on which the records of delimitation and determination became final, no objection may be raised and no action may be brought on legal grounds predating the cadastre (Cadastre Law, Art. 12/3). This is a forfeiture period and bars only grounds predating the cadastre.
Where there is a final judgment on the same subject matter. If an action with the same parties, cause of action and claim has become final, a second action is barred by the final judgment (the Turkish Code of Civil Procedure, Art. 303/1). A final judgment is also effective against persons who acquired the subject matter of the action after the judgment became final; however, the Turkish Civil Code on acquisition in good faith are reserved (the Turkish Code of Civil Procedure, Art. 303/4).
Situations in which an action may be brought but may be dismissed on the merits
Where the immovable property has passed to a third party in good faith. The acquisition by a third party who, relying in good faith on the entry in the land register, acquires ownership or another right in rem is protected (the Turkish Civil Code, Art. 1023). Good faith is presumed and the presumption is rebuttable: a person who fails to exercise the diligence reasonably expected of them in the circumstances cannot assert good faith (the Turkish Civil Code, Art. 3/2). In other words, this outcome is determined not at the time of the application but at the end of the proceedings. If an annotation of a disputed right has been entered in the land register, the door to this defence is closed.
Where the other party has acquired by acquisitive prescription. A person who is entered in the land register as owner without a valid legal basis and who continues possession of the immovable property without litigation and without interruption for ten years and in good faith cannot have the right of ownership so acquired challenged (the Turkish Civil Code, Art. 712).
Where one year has passed in the case of a defect in consent. A party who concludes a contract by reason of mistake or deception, or as a result of duress, is deemed to have ratified the contract if, within one year from the moment of learning of the mistake or deception or from the moment the effect of the duress ceased, the party does not declare that it is not bound by the contract or does not seek the return of what it has given (the Turkish Code of Obligations, Art. 39/1). By contrast, the fact that a contract which is not binding by reason of deception or duress is deemed ratified does not extinguish the right to compensation (the Turkish Code of Obligations, Art. 39/2).
This list sets out what is laid down in the statute; another bar may also exist in a particular file.
On what grounds is the action based?
Sham transaction. In determining and interpreting the type and content of a contract, the true and common intention of the parties is taken as the basis, irrespective of the words they used by mistake or in order to conceal their true purpose (the Turkish Code of Obligations, Art. 19/1).
Transfers made by the deceased with the aim of withholding assets from the heirs are a special case within this heading and are called in practice collusive transfer by the deceased (muris muvazaası). Which facts the Court of Cassation assesses together in such files, who may bring the action and why the period does not begin to run are set out on the Inheritance Law page.
Lack of capacity. Save for the exceptional cases laid down in the statute, the acts of a person lacking the capacity to discern do not produce legal effects (the Turkish Civil Code, Art. 15). The assertion that the capacity to discern was lacking at the time of the transfer is one of the principal bases of actions for cancellation of the land-register entry and registration.
Defective entry. an entry which is based on a legal transaction that is not binding or which lacks a legal basis is defective (the Turkish Civil Code, Art. 1024/2). Where a right in rem has been defectively registered, or an entry has been defectively deleted or amended, the person whose right in rem is thereby prejudiced may bring an action for rectification of the land register (the Turkish Civil Code, Art. 1025/1).
Failure to observe the required form. The validity of contracts aimed at the transfer of ownership of immovable property depends on their having been executed in official form (the Turkish Civil Code, Art. 706). This official form may be provided at the land registry directorate and, since 2022, may also be provided before a notary public: a contract for the sale of immovable property may also be made by notaries (Turkish Notary Law, Art. 61/A). Apart from these, a sale made, for example, by an ordinary written contract does not transfer ownership.
Limitation and time limits in an action for cancellation of the land-register entry and registration and registration
There is no single time limit; the time limit varies according to the basis. Two concepts must be distinguished: once a forfeiture period has expired the right comes to an end and the court takes this into account of its own motion; limitation, by contrast, is a defence that must be raised by the other party.
| Basis | Time limit | Source |
|---|---|---|
| Mistake, deception, duress | 1 year | the Turkish Code of Obligations, Art. 39/1 |
| Legal grounds predating the cadastre | 10 years, forfeiture period | Cadastre Law, Art. 12/3 |
| Action against a cadastral rectification | 30 days | Cadastre Law, Art. 41 |
| Acquisition by the other party by acquisitive prescription | 10 years | the Turkish Civil Code, Art. 712 |
| Request for rectification of a defective entry | no time limit laid down in the statute | the Turkish Civil Code, Art. 1025 |
| Collusive transfer by the deceased | the period is not treated as beginning to run | Inheritance Law |
The row in the table reading “no time limit laid down in the statute” does not mean that the action will always succeed: a change of hands of the immovable property, long-continued possession by the other party and the weakening of evidence may affect the outcome even where the time limit has not expired. Where a unfinalised record is registered, however, persons who have held the immovable property in possession as owner for twenty years from the date of registration benefit from the principle of reliance on the land register (Cadastre Law, Art. 12/final).
An interim injunction has its own time limits, which are separate from these and much shorter.
How can the sale of the immovable property be prevented? Interim injunction and land-register annotation
If the immovable property is transferred to a third party in good faith while the action is pending, the claim converts from cancellation of the land-register entry to compensation. The instrument that prevents this is an interim injunction and the land-register annotation based on it.
Where there is concern that, owing to a change that may occur in the existing situation, the obtaining of the right will become significantly more difficult or entirely impossible, or that delay will give rise to a disadvantage or serious loss, an interim injunction may be ordered in respect of the right in dispute (the Turkish Code of Civil Procedure, Art. 389/1). The injunction is sought before the action is brought from the court having jurisdiction and competence over the substance, and after the action is brought from the court hearing the principal action, and the applicant must make it approximately probable that they are justified on the merits of the action (the Turkish Code of Civil Procedure, Art. 390).
The value of the annotation is laid down in the statute: court decisions concerning the protection of disputed rights may be entered as an annotation in the land register, and restrictions on the power of disposition may, once the annotation is entered, be asserted against the holders of rights subsequently acquired over the immovable property (the Turkish Civil Code, Art. 1010). In other words, while the annotation is in place, a person who subsequently acquires the immovable property cannot rely on the protection of good faith described above.
Three time limits must be observed:
- Execution of the injunction order must be requested within one week from the pronouncement or service of the order on the party seeking the injunction; otherwise the injunction order ceases to have effect of its own accord, even if the action has been brought within the statutory time limit (the Turkish Code of Civil Procedure, Art. 393/1).
- Where the injunction was obtained before the action was brought, the principal action must be brought within two weeks from the date on which its execution was requested; otherwise the injunction ceases to have effect of its own accord (the Turkish Code of Civil Procedure, Art. 397/1).
- Unless otherwise provided, the effect of the injunction continues until the final judgment becomes final (the Turkish Code of Civil Procedure, Art. 397/2).
In which situations does an action for cancellation of the land-register entry and registration fail?
The burden of proof lies with the claimant. Unless the statute provides otherwise, the burden of proof lies on the party who derives a right in their favour from the legal consequence attached to the alleged fact (the Turkish Code of Civil Procedure, Art. 190/1). Where the statute attaches a legal consequence to good faith, the existence of good faith is the starting point (the Turkish Civil Code, Art. 3/1); it falls to the claimant to show that the other party is not in good faith.
Transfer during the proceedings. The route under Art. 125 of the Turkish Code of Civil Procedure described above is available, but if no injunction has been obtained, the good faith of the acquirer becomes a matter for argument.
Claim in the alternative. A claimant may put forward more than one claim against the same defendant in the same petition by establishing a relationship of principal and alternative between them; the court cannot examine the alternative claim unless it has decided to dismiss the principal claim on the merits (the Turkish Code of Civil Procedure, Art. 111). Cancellation of the land-register entry may be combined as the principal claim with compensation as the alternative claim.
If the action is dismissed, the costs of the proceedings and the opposing party’s attorney’s fee are borne by the claimant; this risk should not be underestimated, given that the court fee is calculated on the value of the immovable property.
Before which court is the action brought?
Competence. In actions concerning rights in property, irrespective of the value and amount of the subject matter, the competent court is the Civil Court of First Instance, unless otherwise provided (the Turkish Code of Civil Procedure, Art. 2/1). There are two cases in which a contrary provision exists:
- Cadastral Court. The Cadastral Court hears actions concerning ownership of immovable property and limited rights in rem, rights to be registered or annotated in the land register, boundary and measurement disputes and similar actions concerning the cadastre and the land register (Cadastre Law, Art. 25/1).
- Civil Court of Peace. An action against a rectification arising from measurement, delimitation, mapping and calculations may be brought before the Civil Court of Peace within thirty days from the date of service (Cadastre Law, Art. 41).
Jurisdiction. In actions concerning a right in rem over immovable property or capable of leading to a change in the ownership of a right in rem, the court for the place where the immovable property is situated has exclusive jurisdiction (the Turkish Code of Civil Procedure, Art. 12/1). If the action concerns more than one immovable property, it may be brought in the place where one of the immovable properties is situated in respect of the others as well (the Turkish Code of Civil Procedure, Art. 12/3).
The practical consequence is this: an action for cancellation of the land-register entry and registration and registration concerning an immovable property situated in Alanya is heard in Alanya, wherever the parties may live.
Mediation is not a condition of the action. When the statute lists the disputes subject to mediation as a condition of the action, it lists those arising from a tenancy relationship, those concerning the sharing of movable and immovable property and the dissolution of co-ownership, and those arising from condominium ownership and the right of neighbours (Turkish Mediation Law on Civil Disputes, Art. 18/B). Cancellation of the land-register entry and registration is not on this list. By contrast, an action for dissolution of co-ownership is on the list.
State liability is a separate action. The State is liable for all loss arising from the keeping of the land register; the State has recourse against the officials at fault in causing the loss, and these actions are heard before the court for the place where the land register is kept (the Turkish Civil Code, Art. 1007). This route is a separate action with its own conditions and burden of proof.
On what basis are the costs determined?
The action is subject to a proportional court fee, and the measure is expressly laid down in the statute: in actions concerning the substance of immovable property, such as the prevention of interference, registration and cancellation of a land-register entry, the value of the immovable property is taken into account (Fees Law, Art. 16/1). If compensation for unlawful occupation or damages is also sought in the same action, the fee is taken on the value of the immovable property together with the amount of the compensation and the compensation for unlawful occupation sought (Art. 16/2). Where the value can be determined, stating the value in the petition is mandatory; if it is not stated, the claimant is required to have it determined, and if determination is avoided the petition is not accepted for processing (Art. 16/3).
One quarter of the judgment and decree fees is paid in advance, and the remainder within one month from the service of the judgment (Fees Law, Art. 28/a). If it becomes apparent during the proceedings that the value determined is greater than that stated in the petition, the action is not continued until the shortfall in the fee is made up (Art. 30).
Since the fee tariffs and the Minimum Attorney Fee Tariff are renewed each year, no current amount is given on this page; for figures, the tariff in force should be consulted.
Frequently asked questions
How is an action for cancellation of the land-register entry and registration brought between siblings?
There is no difference in procedure: the action is brought against the sibling appearing as owner in the land register, before the Civil Court of First Instance for the place where the immovable property is situated, and the court fee is calculated on the value of the immovable property. Who the heirs are is documented by a certificate of inheritance. The substantive-law side of the matter — how the assertion of withholding assets is proved and why the period does not begin to run — is set out on the Inheritance Law page.
Can I have the entry rectified by applying to the land registry directorate?
Without the written consent of the interested parties, no; the land registry officer may rectify an error in the register only by judgment of a court. Simple clerical errors, however, are rectified of its own motion in accordance with the regulation issued by the President (the Turkish Civil Code, Art. 1027).
If I win the action, does the land register pass directly into my name?
Ownership is acquired before registration in cases of a court judgment; however, the owner’s ability to carry out acts of disposition depends on the ownership having been registered in the land register (the Turkish Civil Code, Art. 705/2). By contrast, judgments concerning rights in rem over immovable property cannot be enforced until they become final (the Turkish Code of Civil Procedure, Art. 350/2); that is, the land registry cannot be approached on the basis of the first-instance judgment.
Do I need to apply for mediation?
Mediation is not provided for as a condition of the action for cancellation of the land-register entry and registration (Turkish Mediation Law on Civil Disputes, Art. 18/B). It is always possible for the parties to apply for mediation voluntarily.
How long does the action take?
No duration is given on this page. The Ministry of Justice does not publish averages by type of action for actions for cancellation of the land-register entry and registration and registration. The duration is determined as much by the site inspection, the expert examination and the number of witnesses as by the obligation to await the judgment becoming final (the Turkish Code of Civil Procedure, Art. 350/2).
Legislation relied on
Turkish Civil Code No. 4721 — Art. 3 (good faith), Art. 15 (capacity to discern), Art. 701–702 (elbirliği mülkiyeti (joint ownership without shares)), Art. 705 (registration), Art. 706 (official form), Art. 712 (acquisitive prescription), Art. 1007 (State liability), Art. 1010 (annotation), Art. 1023 (third party in good faith), Art. 1024 (defective entry), Art. 1025 (rectification of the land register), Art. 1027 (rectification) — mevzuat.gov.tr
Turkish Code of Obligations No. 6098 — Art. 19 (sham transaction), Art. 39 (one-year time limit for defects in consent) — mevzuat.gov.tr
Turkish Code of Civil Procedure No. 6100 — Art. 2 (competence), Art. 12 (exclusive jurisdiction), Art. 111 (claim in the alternative), Art. 125 (transfer of the subject matter of the action), Art. 190 (burden of proof), Art. 303 (final judgment), Art. 350 (non-enforcement before finality), Art. 389–397 (interim injunction) — mevzuat.gov.tr
Turkish Cadastre Law No. 3402 — Art. 12 (finality and the ten-year forfeiture period), Art. 25 (competence of the Cadastral Court), Art. 41 (action against a rectification) — mevzuat.gov.tr
Turkish Notary Law No. 1512 — Art. 60 and Art. 61/A (contract for the sale of immovable property) — mevzuat.gov.tr
Turkish Fees Law No. 492 — Art. 16 (value in actions concerning the substance of immovable property), Art. 28 (time for payment of proportional fees), Art. 30 (increase in value) — mevzuat.gov.tr
Turkish Mediation Law on Civil Disputes No. 6325 — Art. 18/B (mediation as a condition of the action) — mevzuat.gov.tr
Related pages
- Tenancy and Real Estate Law — parent page
- Inheritance Law — collusive transfer by the deceased and withholding assets from the inheritance
- How is a certificate of inheritance obtained?
- Action for dissolution of co-ownership (izale-i şuyu)
This article is intended as general legal information. Since the circumstances of each case and the state of the land registry and cadastral records differ, it is recommended that you obtain legal support from your attorney at law for your specific situation.