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A third-party claim action (istihkak davası) is a legal remedy governed by Article 96 and the following provisions of the Execution and Bankruptcy Law (İcra ve İflas Kanunu) for situations where property that is presumed to belong to the debtor in enforcement proceedings, but which in fact belongs to a third party or over which a third party holds limited rights in rem such as a pledge, is attached; its purpose is to protect the true right holder's ownership or pledge right. In the third-party claim procedure the time limits are peremptory (preclusive) in nature and are considered by the court of its own motion.
This guide comprehensively addresses the assertion of a third-party claim during the attachment stage, the notification obligation of the enforcement office, peremptory time limits, the allocation of the burden of proof, types of evidence, the mechanism for suspending the enforcement proceedings, and bad-faith compensation, in the light of current Court of Cassation (Yargıtay) decisions.
The Nature of the Third-Party Claim at the Attachment Stage and the Notification Procedure
Within the framework of Execution and Bankruptcy Law, the third-party claim is one of the most fundamental mechanisms aimed at protecting the right of ownership and other rights in rem. In order to subject third parties' assertions of rights over attached property in enforcement proceedings to judicial review, the third-party claim procedure was established in Article 96 and the following provisions of the Execution and Bankruptcy Law (İİK). Technically, the third-party claim is a substantive-law assertion, and depending on whether it is raised at the moment of attachment or thereafter, it produces different procedural consequences.
A third-party claim action is a lawsuit in which a third party asserts a claim of ownership or a limited right in rem (pledge, right of retention, usufruct, etc.) over attached property and requests that this right be established by court judgment and that the property be released from attachment.
The Third-Party Assertion in the Attachment Record
A person other than the debtor asserting a right over attached property during the attachment operation is the first and most important procedural act that ignites the third-party claim procedure. Pursuant to Article 96/1 of the İİK, the debtor may raise a third-party claim in favour of a third party regarding property in the debtor's possession during attachment, and the third party may also raise this claim in person. Recording this claim in the attachment record is not merely a declaration; it causes the legal process to officially commence.
Court of Cassation, 21st Civil Chamber, decision dated 17.10.2006, docket no. 2006/11137, judgment no. 2006/10343The debtor, who was present during the attachment, raised a third-party claim in favour of the plaintiff third party within the scope of Article 96/1 of the İİK by stating that the attached property belonged to the plaintiff third party and by having this claim recorded in the attachment record. By this third-party claim made within the statutory period, the period for filing the action was interrupted.
Raising a third-party claim during attachment is a matter that exceeds the enforcement officer's discretionary authority. The enforcement director does not have the power to examine whether this claim is well-founded; the director's duty is to record the claim and to set the statutory procedure in motion. Failure to record the claim or to take it into account may make the officer's act the subject of a complaint, and it also touches upon the very essence of the third party's right of ownership.
The Scope of Pledge and Other Rights-in-Rem Claims
Although the right of ownership is the first thing that comes to mind when a third-party claim is mentioned, third-party claim actions within the scope of the İİK protect a much broader range of rights in rem. A third party's assertion of a limited right in rem such as a pledge, right of retention, or usufruct over attached property is also subject to the third-party claim procedure. In particular, matters such as banks' pledge rights over deposits or a commercial enterprise pledge constitute the most technical areas of this action.
Court of Cassation, Assembly of Civil Chambers, decision dated 03.03.2022, docket no. 2018/93, judgment no. 2022/255The assertion that a third party other than the creditor and the debtor holds a pledge right over an attached asset is also a third-party claim. Since there is no statutory provision granting the enforcement officer the authority to recognise a third party's commercial enterprise pledge right over the attached property, such disputes must be resolved only by way of a third-party claim action.
A third-party claim also arises where movables that fall within the scope of an immovable pledge (mortgage) and are in the nature of an integral part or appurtenance of the immovable are attached. By virtue of the principle of the indivisibility of the mortgage right, the third party's pledge right gives rise to a priority (right of preference) over the sale proceeds of the attached property. For this reason, the third-party claim action is of vital importance not only for recovering ownership of the property, but also for proving entitlement over the sale proceeds.
The Enforcement Office's Obligation to Notify the Parties
When a third-party claim is raised, the most critical duty incumbent upon the enforcement office is to notify the parties of this claim in accordance with proper procedure and to grant them the statutory time limits to exercise their right of objection. This process determines which of the İİK 96-97 or İİK 99 procedures applies, depending on in whose possession the property was attached. If the property was attached while in the debtor's possession, the enforcement director grants the creditor and the debtor a three-day period, requesting that they notify their objections to the third-party claim; if they do not object within the granted period, they are deemed to have accepted the third-party claim.
One of the matters most frequently mishandled in practice is the İİK 99 procedure that must be applied where the property is attached while in a third party's possession. In this case, the enforcement director must grant the creditor a seven-day period to file an action for rejection of the third-party claim. However, granting this period alone is not sufficient; the notification must absolutely include a reminder of the legal consequences, that is, a caution (ihtarat) must be given.
Court of Cassation, 12th Civil Chamber, decision dated 05.10.2022, docket no. 2022/5718, judgment no. 2022/9829Under Article 99 of the İİK, for the procedure to produce legal effect, the creditor must be granted a seven-day period and must be cautioned that, should the creditor fail to file an action, the third party's claim will be deemed accepted; the period also begins on the date of service of the decision.
The absence of a caution suspends the creditor's obligation to file an action, and any acts of the enforcement director aimed at selling the property or paying out the money without completing this procedure become unlawful. The enforcement office's notification obligation is not merely the sending of a piece of paper; it is the carrying out of a service procedure that satisfies the statutory conditions and enables the parties to exercise their right to be legally heard.
The Peremptory Time Limits for Filing the Action and the Enforcement Director's Procedural Obligation
The management of time limits relating to third-party claims is one of the most dynamic areas of enforcement law and one most open to loss of rights. In this process, the time limits are not simple periods left merely to the discretion of the parties; they are peremptory (preclusive) in nature, concerning public order, that must be considered by the court of its own motion, and whose lapse prevents access to the very essence of the substantive right.
Interruption of the Period by a Claim at the Moment of Attachment
The most critical moment of the third-party claim procedure is the moment the attachment is carried out. Within the framework of Article 96 of the İİK, the debtor raising a third-party claim in favour of a third party during attachment has the effect of halting the running of the statutory period and protecting the third party's rights. The attachment record is not merely a document of ascertainment but also functions as a legal dam that halts the peremptory time limits.
Court of Cassation, 17th Civil Chamber, decision dated 21.02.2011, docket no. 2011/1483, judgment no. 2011/1455Since the plaintiff third party raised a third-party claim during the attachment, the period for filing the action was interrupted, and therefore the action filed thereafter is within the time limit.
The interruption of the period is of vital importance in terms of protecting the third party's right of ownership. For the failure to raise this claim at the moment of attachment may cause a later action to become mired in disputes over the "date of learning."
The Seven-Day Period Granted to the Creditor
The İİK 99 procedure, which applies where the attached property is in a third party's possession, places the burden of proof on the creditor while at the same time granting the creditor a narrow time frame. When the enforcement director attaches property in a third party's possession, the director must grant the creditor a strict seven-day period to file an action for rejection of this third-party claim. This seven-day period is, for the creditor, a freedom to seek justice, but it also entails a severe sanction: if the period is allowed to pass passively, the third party's claim becomes definitive in the substantive-law sense.
The Difficult-to-Remedy Consequences of Missing the Time Limit
In third-party claim actions, because the time limits are peremptory in character, they are subject to the strictest rules of procedural law. The lapse of these time limits makes it impossible to enter into the merits of the dispute and obliges the court to reject the action on procedural grounds.
Court of Cassation, 17th Civil Chamber, decision dated 25.03.2010, docket no. 2009/4429, judgment no. 2010/2733In third-party claim actions, the 7-day period for filing a third-party claim action provided for in Article 97/9 of the İİK is peremptory in nature. This matter, which concerns public order, must be taken into account by the court of its own motion.
Court of Cassation, 17th Civil Chamber, decision dated 23.02.2012, docket no. 2011/11744, judgment no. 2012/2072Since the plaintiff third party learned of the attachment dated 07.04.2010, which is the subject of the action, on 28.10.2010 and should have filed the third-party claim action by 04.11.2010 at the latest, but filed it on 09.11.2010 having missed the 7-day peremptory period, it is necessary to decide to reject the action on the ground of the peremptory time limit.
Even a mere five-day delay eliminated the possibility of proving the right of ownership and led to the rejection of the action without examination of its merits. Another dangerous dimension of the peremptory time limit concerns irregularities in service and proof of the dates of learning. For a third party who was not present during the attachment, the period begins from the date of becoming aware of the attachment, that is, from the date of learning.
Comparison of the İİK 96/97 and İİK 99 Procedures
The following table summarises the two different third-party claim procedures to be applied depending on by whom the property was held at the place it was attached.
| Comparison Element | İİK Art. 96-97 (In the Debtor's Possession) | İİK Art. 99 (In a Third Party's Possession) |
|---|---|---|
| Presumption of Ownership | In favour of the debtor | In favour of the third party |
| Burden of Filing the Action | Filed by the third party | Filed by the creditor |
| Time Limit | 7 days (learning of the attachment) | 7 days (service with caution) |
| Caution Requirement | Three-day objection period | Caution as to legal consequences required |
| Burden of Proof | On the third party | On the creditor |
| Consequence of Remaining Silent | The claim is deemed accepted | The claim is deemed accepted |
Allocation of the Burden of Proof, Types of Evidence, and the Request to Suspend the Proceedings
Once the merits of a third-party claim action are entered into, the court's first and most important duty is to determine on which party the burden of proof lies. The Execution and Bankruptcy Law imposes different evidentiary burdens on the parties through presumptions of ownership, making the fact of where and in whose presence the attachment was carried out the cornerstone of the action's standard of proof.
The Evidentiary Burden of the Third Party and the Creditor
The determination of the burden of proof in a third-party claim action is, as a rule, based on the presumptions of ownership set out in Article 97/a and Article 99 of the İİK. Pursuant to Article 97/a of the İİK, a person who has a movable in their possession is deemed to be its owner; even where the debtor and third parties jointly possess the movable, the property is deemed to be in the debtor's possession. This provision places the burden of proof directly on the third party where the attachment is carried out at the debtor's address or at a place used jointly by the debtor and the third party.
Court of Cassation, Assembly of Civil Chambers, decision dated 15.12.2020, docket no. 2017/2193, judgment no. 2020/1029If the movable was attached solely in a third party's possession, as a rule the burden of filing the action and therefore the burden of proof falls on the creditor pursuant to Article 99 of the İİK.
If the property was attached in the exclusive possession of the third party, the presumption of ownership is in favour of the third party, and the creditor must prove by definite and strong evidence that the property in fact belongs to the debtor, that the relationship between them is collusive (simulated), or that ownership was transferred with the intent of concealing assets from the debtor. It is not possible for the creditor to rebut this presumption with abstract assertions; the creditor must demonstrate with concrete data that there is an organic connection between the debtor and the third party, that they operate in the same line of business, or that the attached property is recorded in the debtor's commercial books.
The Role of Invoices, Commercial Books, and Notarised Documents
In third-party claim actions, proof of ownership is too technical a process to be dealt with by witness statements alone. The most credible evidence before the court is written documents whose dates predate the arising of the debt and whose content is concrete and verifiable. Invoices, commercial books, and notarised contracts form the backbone of the action.
Court of Cassation, 8th Civil Chamber, decision dated 06.03.2017, docket no. 2015/3478, judgment no. 2017/2980It is correct to rule that the presumption of ownership could not be rebutted, on the ground that the submitted invoices did not contain distinguishing features as to which goods they related and that the invoices were issued after the arising of the debt and even after the date of the proceedings.
Invoices that merely state "assorted goods" or do not specify a serial number remain weak in proving ownership of the specific attached goods. Commercial books, for their part, must have been kept in accordance with proper procedure and their opening and closing approvals carried out in order to constitute evidence in favour of their owner pursuant to Article 222 of the Code of Civil Procedure (HMK).
Notarised documents and official register records, on the other hand, are the evidence with the highest probative force. Especially where vehicles subject to registration and construction machinery are concerned, register records take the place of the possession presumption.
Court of Cassation, 12th Civil Chamber, decision dated 18.06.2025, docket no. 2025/1837, judgment no. 2025/4650The presumption that a person who has a movable in their possession is deemed to be its owner does not apply to vehicles registered in the traffic register. Pursuant to Article 20/d of Law No. 2918, for all types of sales and transfers of registered vehicles to be valid, they must be carried out by notaries.
Suspension of the Proceedings and Halting the Sale of the Property
Filing a third-party claim action does not, as a rule, halt the enforcement proceedings of its own accord. However, the sale of the property that is the subject of the action and the payment of its proceeds to the creditor may render meaningless any success achieved at the end of the action. For this reason, pursuant to Article 97/3 of the İİK, the enforcement court may decide to suspend (defer) the proceedings.
Pursuant to Article 97/13 of the İİK, for the decision to suspend the proceedings to be enforceable, it is mandatory to obtain from the plaintiff a security to cover the creditor's probable damages. The amount of the security is determined by the court; it is intended to compensate for the delay damages the creditor would suffer should the action prove unfounded.
If a decision to suspend the proceedings is not rendered, the enforcement office continues with the sale operations. In this case, the third-party claim action is directed not at the ownership of the property but at the proceeds obtained from the sale (the substitute value). If the property has been sold and its proceeds paid to the creditor, then upon winning the action the third party requests the return of these proceeds from the creditor. However, since this process makes it impossible to recover the property in kind, a request to suspend the proceedings is indispensable to the action where machinery of vital importance to commercial enterprises or registered vehicles are concerned.
Court of Cassation Case Law, Bad-Faith Sanctions, and Strategic Management
The settled decisions of the Court of Cassation in the field of third-party claim actions guide practitioners across a broad range, from the legal nature of the dispute to the conditions of bad-faith compensation. In provinces such as Antalya, where the tourism and real estate sectors are intensive, third-party claims frequently arise over hotel furniture, kitchen equipment, construction machinery, and vehicles acquired through leasing; the success of these actions depends on the legal characterisation being made correctly.
The Distinction Between the Third-Party Claim Action and a Complaint
One of the most frequently encountered errors in practice occurs in characterising the remedy to be resorted to where the enforcement officer fails to apply the third-party claim procedure or applies it incorrectly. The rule under Article 33 of the Code of Civil Procedure that legal characterisation belongs to the judge is a fundamental directive in third-party claim disputes. Even if the parties have named their application a "complaint," if the essence of the dispute is based on an assertion of a right in rem, the court must treat this application as a third-party claim action.
Whereas the institution of complaint aims at the annulment of unlawful acts of the enforcement and bankruptcy offices and, as a rule, does not carry out an examination of the substantive dispute, the third-party claim action is technically an affirmative action for declaratory relief based on the third party's assertion of a right of ownership or pledge. This distinction is decisive in terms of the procedure by which the action will be heard and the evidence to be gathered.
Liability for Compensation Against Bad-Faith Claims
The Execution and Bankruptcy Law provides for severe compensation sanctions in order to prevent the unjust halting of proceedings or the obstruction of the creditor's attainment of their rights through a third-party claim action. The provision of Article 97/13 of the İİK regulates that compensation, of not less than twenty percent of the creditor's claim whose collection was delayed on account of this action, shall be ordered against a plaintiff whose third-party claim action is rejected.
For compensation to be ordered, it is first necessary that a decision to defer the proceedings has been rendered upon the third-party claim action and that this decision has been actually implemented. If the court has not rendered an interim injunction or deferral decision to halt the proceedings, there will be no room for delay compensation, since the creditor's collection process was not technically obstructed.
Court of Cassation, 8th Civil Chamber, decision dated 08.07.2013, docket no. 2013/6395, judgment no. 2013/10641For compensation to be ordered in favour of the creditor in third-party claim actions, all the conditions sought in Article 97/13 of the İİK must be present together.
Where the third party's action is accepted, on the other hand, if the creditor's bad faith is proven, then this time compensation may be ordered against the creditor. Here the burden of proof lies with the plaintiff third party, and where the creditor party's bad faith is not proven, the compensation request must be rejected. Accordingly, the compensation mechanism is a two-sided balancing instrument that protects both the creditor and the true right holder third party.
Frequently Asked Questions About Third-Party Claim Actions in Enforcement Law
From when should the period for filing a third-party claim action be counted?
If the third party was present during the attachment and had the third-party claim recorded in the record, the period is interrupted. Where the third party was not present, the seven-day peremptory period begins to run from the date the third party learned of the attachment. This period concerns public order and is considered by the court of its own motion; missing it leads to the rejection of the action on procedural grounds without entering into its merits.
On whom does the burden of proof lie when the property is attached at the debtor's address?
Pursuant to Article 97/a of the İİK, a person who has a movable in their possession is deemed to be its owner. For this reason, if the attachment is carried out at the debtor's address or at a place used jointly by the debtor and the third party, the presumption of ownership is in favour of the debtor and the burden of proof passes directly to the third party. The third party must demonstrate by strong and definite evidence that the property belongs to them.
What caution must the enforcement director give when granting the creditor the seven-day period?
In the İİK Article 99 procedure, when the enforcement director grants the creditor a seven-day period to file an action for rejection of the third-party claim, the director must give an express caution that, should no action be filed within this period, the third party's claim will be deemed accepted. The absence of a caution vitiates the procedure; the period does not begin to run and the enforcement director's subsequent acts become unlawful.
How is the presumption of ownership applied to registered vehicles?
According to the settled case law of the 12th Civil Chamber of the Court of Cassation, the presumption that ownership of movables is proven by possession does not apply to vehicles registered in the traffic register. Since, pursuant to Highway Traffic Law No. 2918, the validity of the sale and transfer of registered vehicles is conditional upon a notarial deed, a notarised sale document or the registration record is decisive for such vehicles.
Can a pledge right over a bank deposit be the subject of a third-party claim action?
Yes. According to the settled case law of the Assembly of Civil Chambers of the Court of Cassation, the assertion that a third party other than the creditor and the debtor holds a pledge right over an attached asset is also a third-party claim. Banks' pledge and set-off rights over deposits, a commercial enterprise pledge, or rights over appurtenance property within the scope of a mortgage are protected within this scope.
Do the enforcement proceedings stop automatically when a third-party claim action is filed?
No. Filing a third-party claim action does not, as a rule, halt the enforcement proceedings of its own accord. The plaintiff third party must additionally request the suspension (deferral) of the proceedings pursuant to Article 97/3 of the İİK, and the court must accept this request. For a deferral decision, it is mandatory to obtain from the plaintiff a security to cover the creditor's probable damages.
If the third-party claim action is rejected, is the third party obliged to pay compensation?
If the court has decided to suspend the proceedings and the action is ultimately rejected, the plaintiff third party is obliged to pay compensation of not less than twenty percent of the creditor's claim whose collection was delayed on this account. If no decision to suspend the proceedings has been rendered, the conditions for compensation do not arise. For this reason, the request to suspend the proceedings must be carefully evaluated as a strategic decision.
