The parties want to stipulate the establishment of the main contract with the preliminary contract for real estate sale, which is a preliminary contract and gives the right to demand the conclusion of the contract of sale of the immovable. In other words, it is a commitment to make an immovable sale contract, which must be formally made in the future in trust of the land registry officer.
With a real estate sales contract, one party promises to sell the immovable while the other party promises to buy in question immovable. Thus, both parties become mutually indebted. With this preliminary contract, if one of the parties does not fulfill its obligation, the other party will have the right to demand performance. In the event that more than one real estate sales promise contract is made, the contract made the oldest is considered valid in accordance with the ancient principle.
In order for the preliminary contract for real estate sale to be valid;
- It should be made in the form of a notary arrangement. (It is accepted that it can also be made in the land registry administration in doctrine and practice.)
- The immovable that is the subject of the contract must be definite or identifiable.
- The sale price must be specified in the contract.
If we examine these validity conditions in detail,
In Article 60/3 of the Notary Public Law, making a real estate sales promise contract is regulated among the duties of the notary public. In the 89th article of the same law, it is regulated that the real estate sales promise contract must be made in the form of an arrangement at the notary public. This preliminary contract can be drawn up at the notary public, as well as at the land registry by the land registry officers who are authorized to issue the main contract in doctrine and practice.
As a result of this agreement, which is formed by the will of the two parties clearly expressed in accordance with each other, any of the parties may request that the real estate sales promise contract be annotated in the land registry. With the annotation of the contract to the title deed, the personal right arising from the contract will be strengthened and can be claimed against third parties.
The promise of sale contract, duly prepared in the notary public, will be valid even if it is not annotated in the land registry. However, when this preliminary contract is not annotated in the land registry, the party to whom the real estate is promised to be sold under the real estate sales promise agreement cannot claim any right against third parties who make transactions by relying on the land registry records. No sales, attachments, mortgages, and similar easement rights cannot be registered in the land registry within five years from the annotation of the real estate promise contract to the land registry.
A real estate sales promise contract cannot be made regarding a real estate without a title deed. The contract between the parties can only be accepted as a “sales contract aiming at the transfer of the right of possession”. The 8th Civil Chamber of the Supreme Court of Appeals has clearly stated in the decision of M. 1996/9378, Dcs. 19967/4125, Dated 25.06.1997 that this preliminary contract for immovable without title can be made. Accordingly, “…Preliminary contract for real estate sale to sell real estate without title deed is not a valid real estate sales promise agreement…”
Real estate sales promise contract can also be made by a person who is not the owner of the real estate. The important thing is that the person promising the sale of the immovable at the time of the main contract is the owner of the immovable. If the party making the preliminary contract of sale is still not the owner and cannot fulfill the debt arising from the contract; In accordance with the impossibility of performance and breach of debt provisions of the Code of Obligations, it is decided to compensate the underwriter’s losses arising from not performing the contract at all or properly.
If the shares are determined in relation to the real estates with shared ownership, this contract can be made for a certain part or all of the share. In case of joint ownership, the real estate sales promise contract to be made by one of the partners with a person outside the partnership is a commitment process, and the main contract cannot be executed until the joint venture is dissolved or turned into shared ownership. The creditor of the promise cannot request the cancellation and registration of the title deed based on the promise of sale contract made for the real property in question. However, in accordance with the provisions of the Code of Obligations, the party who does not fulfill its debt will be in recalcitrance.
The real estate promise contract ends with the fulfillment of the promise, the statute of limitations of the performance specified in the contract, or the termination of the contract. By paying the price of the promised immovable according to the promise of sale contract, and the promiseer by transferring the ownership of the immovable subject to the contract to the promised person, they perform their acts. For the termination of the contract with the termination of the contract, this transaction must be duly made at the notary public.
Another way of termination is to send a notice of termination to the other party if one of the parties does not fulfill its obligations, according to Article 106 of the Code of Obligations. In the event that the contract is not terminated, the party will be able to demand the fulfillment of the amount of damage and obligations arising from the non-fulfillment of its obligations from the other party. The plaintiff has the right to exercise one of his elective rights in accordance with the above-mentioned article due to the defendant’s default. Along with the termination of the sale, the plaintiff has the right to demand the damage arising from the failure to fulfill the obligations.
If the price agreed in the contract is fully paid, but the other party of the contract avoids fulfilling its obligation, that is, does not transfer the immovable, the one who promises to buy the immovable can file a lawsuit for the cancellation of the title deed and registration, in other words forced registration, and request the transfer of the immovable to itself from the court. The basis of this case is Article 716 of the Civil Code.
One of the important reasons for ending of the real estate preliminary contract is the statute of limitations. Pursuant to Article 125 of the Code of Obligations, the promise of sale contract is subject to a 10-year statute of limitations. According to the decision of the 14th Civil Chamber of the Court of Cassation, M. 2000/2066, Dcs. 2000/2448, Dated 13.04.2000, the statute of limitations will start from the moment that the performance opportunity arises. In addition, it should be noted that the waiver of the statute of limitations added to the contract by the parties has no legal validity.
In order to avoid loss of rights, it would be beneficial to get help from an expert lawyer during the establishment and continuation of such important contracts. You can always contact us to get information and assistance regarding all your legal affairs and transactions.
