Antalya, with its natural beauty and rapidly developing real estate market, has become an attractive destination for both investors and homebuyers. However, this dynamic market can also bring with it certain legal complexities. Homes sold without a floor easement (KAZ), in particular, pose significant risks and potentially lead to loss of rights for buyers. In this article, we will examine in detail the challenges buyers may face and their legal rights when purchasing homes without a floor easement, particularly in Antalya.
Real estate transactions require great care and legal knowledge due to the transfer of high-value assets. Unfortunately, sales made without adequate legal infrastructure can lead to disadvantaged buyers. The phrase “a residence sold without establishing a floor easement” generally refers to situations where construction is not yet complete, or where, even if completed, the individual units have not yet been registered separately in the land registry. In such cases, it is crucial for the buyer to protect their rights and prevent potential harm.
Concepts of Floor Allotment and Floor Ownership
To grasp this topic, it’s first necessary to clarify the concepts of floor easement and condominium ownership. These two concepts are cornerstones of real estate law, particularly regarding the registration and management of property in multi-story buildings.
What is Floor Allotment and Its Importance?
A floor easement is a form of shared ownership of independent sections of an unfinished building on a plot of land, with the intention of transitioning to condominium ownership in the future. In other words, before construction begins or during the construction phase, the landowners or contractor designate the individual sections of the building, such as apartments and shops, separately in the land registry and register the land shares allocated to these sections. A floor easement is the first step toward transitioning to condominium ownership upon completion.
The significance of a floor easement is that when a buyer purchases an independent unit in an unfinished building, the land share for that independent unit is registered in their name at the land registry. This allows the buyer to own a specific share of the land, even if the construction is not yet completed, and to have legal security over that share. This registration in the land registry also protects the buyer’s rights against third parties.
What is Condominium Ownership and Its Differences
Condominium ownership, on the other hand, is the separate and independent ownership of each of the completed and occupancy-licensed independent units of a building (apartments, shops, offices, etc.). When a condominium ownership is established, each independent unit is issued a title deed, which clearly states the number, nature, and land share of the independent unit.
The primary difference between a floor easement and a condominium is the completion of the building and the acquisition of an occupancy permit. A floor easement represents the right to own individual sections of a building under construction, while a condominium represents the absolute right of ownership over the individual sections of a completed building ready for occupancy. In sales without a floor easement, the buyer may actually be purchasing only a share of the land or, even riskier, a mere “promise.”
Fundamental Problems Encountered in Houses Sold Without Establishing Floor Allotment
Home sales without the establishment of a floor easement create many serious legal and practical problems for buyers. These problems can lead to both financial and moral harm.
Title Deed Transfer and Ownership Issues
In a property without a floor easement, it is not possible to register the individual units separately in the land registry. In this case, the buyer cannot be issued a direct “apartment title.” The transaction usually involves a “share transfer” of the land at a specific rate. However, because the title deed does not clearly specify which independent unit this share corresponds to, the buyer only becomes a shareholder in a specific portion of the land, not the direct owner of a specific apartment. This could lead to future disputes with other shareholders, or even the failure to fully establish ownership rights.
Difficulties in Accessing Credit
Banks generally do not provide mortgage loans for properties without established floor easements or condominiums. This is because banks require an independent property registered in the land registry as collateral. A property without a floor easement is considered unsuitable by banks for mortgages and risk assessment. This prevents buyers from accessing home financing or creates additional financing costs.
Lack of Occupancy License and Usage Permit
Residences without a floor easement are generally buildings that have not yet received, or are unable to obtain, an occupancy permit. An occupancy permit is an official document proving that a building has been completed in accordance with the law and is suitable for occupancy. Living in a building without an occupancy permit can lead to problems obtaining electricity, water, and natural gas, higher utility rates, and penalties from municipalities.
Common Expenses and Management Issues
In buildings without a floor easement or condominium, the provisions of the Condominium Ownership Law cannot be fully applied. This can lead to serious disputes and legal gaps in the collection of common building expenses (duties, maintenance, and repairs), building management, and decision-making processes. The differing expectations of each shareholder can negatively impact the building’s overall condition and value.
Buyer’s Legal Protection Remedies and Rights
Buyers who purchase a property without a floor easement have various legal rights under the Turkish Code of Obligations, the Consumer Protection Law, and other relevant legislation. The proper and timely exercise of these rights is critical to resolving the buyer’s grievances.
Validity of the Contract and Form Conditions
According to the Turkish Civil Code and the Code of Obligations, for real estate sales contracts to be valid, they must be executed officially, that is, executed at the land registry office or before a notary public. If the sale of a residence without a floor easement is made through an ordinary written contract, this contract is null and void. However, in accordance with the precedents of the Supreme Court of Appeals, contracts that qualify as “construction contracts in exchange for a land share” or “land share transfer promise contracts” must be executed before a notary public. If the transaction is executed under such a contract and duly executed at a notary public, the buyer may claim rights based on this contract.
Defective Performance and Consumer Rights
The sale of a residence without a floor easement may be considered “defective performance” under the Consumer Protection Law. The seller is deemed to have delivered a residence that does not meet the contractual or legally required specifications. The absence of a floor easement constitutes a significant defect, as it prevents the residence from being registered as an independent unit in the land registry and, therefore, cannot fully serve its intended purpose.
In case of defective performance, the buyer has the following rights:
* Withdrawal from the contract: Terminating the contract and requesting a refund of the price paid due to the faulty nature of the property.
* Requesting the defect to be remedied: Requesting the establishment of floor easement and obtaining of occupancy permit from the seller.
* Requesting a discount in proportion to the defect: Requesting a discount on the sales price in proportion to the decrease in the value of the house.
* Request free repair: If the defect can be remedied by repair.
In order to exercise these rights, the buyer must notify the seller and file a lawsuit within certain legal periods from the date he learns of the defect.
Withdrawal from Contract and Claim for Compensation
If the condition of the property sold without the construction servitude fundamentally violates the buyer’s expectations and the purpose of the contract, the buyer may exercise their right to withdraw from the contract. In this case, the buyer may demand the return of all monies paid, including legal interest. Furthermore, the buyer has the right to claim compensation for any material losses (e.g., rental expenses, loan interest) and moral damages (e.g., distress, stress) incurred during this process. The amount of compensation may be increased, particularly if the seller is malicious or fraudulent.
Deed Cancellation and Registration Cases
If only the land share has been transferred to the buyer, and this transfer has been duly executed at a notary, and the contractor or landowner fails to fulfill their contractual obligations, the buyer may file a “title deed cancellation and registration lawsuit.” Through this lawsuit, they can request the registration of the land share in their name and the completion of construction, enabling the transition to condominium ownership. However, such cases are quite complex and must be evaluated in accordance with the established precedents of the Supreme Court of Appeals.
Criminal Law Dimension
If a seller knowingly sold a property without a floor easement, misled the buyer, or misrepresented the property, this could constitute fraud under the Turkish Penal Code. In this case, the buyer could initiate criminal proceedings by filing a criminal complaint with the Chief Public Prosecutor’s Office. A conviction would strengthen the buyer’s claim for compensation.
Things to Consider During the Legal Process
There are important points to be considered before and throughout the legal process regarding the purchase of a house without the establishment of floor easement.
Collection of Evidence
You’ll need solid evidence to prove your claims during the legal process. It’s crucial to gather all the necessary information and documents, including the sales contract (ordinary written or notarized), payment receipts, correspondence (email, text), advertisements, land registry records, building permits, occupancy status documents, and any witness testimonies.
Statute of Limitations
The Turkish Code of Obligations and the Consumer Protection Law stipulate specific limitation periods for exercising rights arising from defective goods or services. These periods may vary depending on the nature of the defect and the relationship between the parties. Caution is advised in this regard, as missing these deadlines can lead to a loss of rights.
Conciliation and Mediation
Before resorting to litigation, the parties should also consider seeking a solution through conciliation or mediation. Mediation has become a prerequisite for disputes involving specific monetary limits, particularly in consumer court cases. Mediation can offer a quicker and less costly resolution.
The legal issues surrounding homes sold in Antalya without the establishment of a floor easement are complex and multifaceted. To protect their rights and address their grievances, buyers must first accurately assess the legal nature of the situation and then assertively exercise their legal rights. It’s important to remember that real estate law is a complex field requiring in-depth knowledge and experience. Therefore, seeking the support of an expert legal professional during such a process is crucial to avoiding potential loss of rights and taking the most appropriate legal action.