A “construction contract in return for flat” is made between the purveyor (contractor) or construction companies and the land owners for the construction of a building on an empty land or the reconstruction of the existing building. This contract, which is not directly regulated in the law, is actually a mixed contract formed by the combination of the promise to sell the immovable and the contract of work.
Within the scope of this contract, the contractor undertakes to construct a building by constructing independent sections on the land with his own material in return for a certain land share or flat to be transferred to him. In cases where there is condominium-principled ownership or co-ownership on the land, all stakeholders must decide unanimously. If there are people who have real rights such as usufruct, easement, etc. on the immovable, they will also need to give permission for construction.
For the validity of this contract, in which the land owner undertakes to transfer a real estate share, it must be issued in the presence of a notary public. Contracts for which the form requirement is not met will be void. In this case, the cost of the work can be demanded back according to the principles of unjust enrichment. However, in line with the established opinion of the Court of Cassation, even if the contract is made outright (without complying with the form requirement), if the majority of the construction is completed, after this stage, the landlord will no longer be able to claim the invalidity of the contract as it will not comply with the objective goodwill rules.
The land on which the contract will be constructed must be open for development and suitable for the construction of independent sections in the amount agreed in the contract. Where these conditions are not met, invalidity of the construction contracts in return for flat will come to the fore. The process of getting the approval of the construction project drawn to start the construction by the municipality falls to the land owner, unless there is a contrary provision in the contract. If the license is left to the contractor, this should also be specified in the contract and the necessary power of attorney should be obtained from the land owners.
As the essential elements of the contract; The characteristics of the construction, who will carry out the administrative and financial transactions, and who will make the expenditures should be clearly determined. When the construction will start and when it will be considered to be finished should also be clearly determined in the contract, and what kind of sanctions will be applied if the construction is not completed within the agreed time should be included in the contract.
Failure to complete the construction; It may be based on reasons such as natural disasters, failure of the land owner to fulfill his obligations, legal obstacles related to the land. The contractor may request that the time required for the elimination of these reasons not be included in the period. However, since he has the title of trader and has to act like a prudent businessman, he cannot show the deterioration of his financial situation or the emergence of an economic crisis in the country as a reason for the extension of the period.
According to the contract, the title deed of a section of land can be transferred to the contractor at the beginning, independent sections can be given to the contractor at the end of the construction after the end of the construction, or it may be possible to give the contractor an apartment with a condominium servitude at certain stages of the construction. In order to prevent grievances on both sides, it would be appropriate to give title deeds at certain stages according to the realization rate of the construction. It is possible to establish a floor servitude on the land by applying to the title deed. In the provisions of the contract, it should be clearly stated when the construction servitude will be established and by which party of the contract, and who will bear the related fees and expenses.
The correct preparation of the construction contract in return for flat will enable you to avoid the grievances that will be experienced to a large extent. It is useful to get help from a lawyer who is an expert in his field, both in the preparation of the contract and in order to minimize your grievances in the face of the problems. You can contact us for all your help and information.