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A Comprehensive Legal Guide
The legal right of pre-emption (şufa hakkı), which constitutes one of the most dynamic and strategic areas of Turkish property law, is a right arising from the law. It aims to protect the existing ownership structure among shareholders and prevent the inclusion of third parties in immovable properties subject to the shared ownership regime throughout Turkey, particularly in Antalya. This right, regulated under Article 732 of the Turkish Civil Code No. 4721, is a legal limitation imposed on the exercise of the right of ownership. The right of pre-emption is a "formative" (inşai) right that potentially exists as long as the shared ownership relationship continues but becomes exercisable only upon the sale of a share to a third party. The primary objective of establishing this right is to prevent unwanted third parties from entering among the shareholders of the immovable property, to allow existing shareholders to increase their ownership shares, and, if possible, to encourage the consolidation of the property in a single hand, thereby minimizing potential disputes arising from shared ownership.
Who is the Holder of the Right of Pre-emption: Acquisition of the Status of Shareholder
The authority to be a plaintiff in a pre-emption lawsuit—in other words, active legal standing—is exclusively granted to the shareholders of the immovable property. The most fundamental criterion among the requirements for a pre-emption lawsuit is that the plaintiff must possess a valid status of shareholder in the immovable property on the date the subject share is sold to a third party. It is not legally possible for a person who does not hold the status of shareholder to assert this right. The Court of Cassation, in its settled jurisprudence, explicitly emphasizes that the right of pre-emption arises at the moment the shared ownership relationship is established and becomes exercisable upon the realization of the sale.
In the decision of the 7th Civil Chamber of the Court of Cassation dated 26.01.2023, Merits No: 2021/7681, Decision No: 2023/537, this matter is expressed as follows:
"The right of pre-emption is a right that grants other shareholders the priority to purchase a share in immovable properties subject to shared ownership provisions in the event that a shareholder sells their share on the immovable property partially or completely to a third party. This right arises at the moment the shared ownership relationship is established and becomes exercisable upon the realization of the sale."
To clarify in light of this jurisprudence: a person who owns a share in an immovable property holds this potential right from the moment they acquire the status of shareholder. However, for the right to be exercised through a lawsuit, a shareholder must sell their share to a "third party." If the plaintiff is not yet a shareholder on the date the sale is made, becoming a shareholder later does not grant them a retroactive right of pre-emption. Indeed, the same decision stated that lawsuits filed by persons who became shareholders after the date of sale must be dismissed due to the lack of active legal standing:
"...it was decided to dismiss the case on procedural grounds due to the lack of active legal standing, based on the reasoning that the joined plaintiffs became shareholders in the subject immovable property on 21.03.2017, after the date of sale of the subject shares, and thus did not possess the right of pre-emption."
In this context, it is of critical importance that a shareholder wishing to hold the right of pre-emption must have registered their right of ownership in the Antalya Land Registry Office or the relevant land registry, and this registration must exist at the time of the sale. Even in cases where the shareholder structure changes as a result of administrative processes such as zoning applications or parcellation procedures, it must be meticulously examined whether the status of shareholder at the time of sale is preserved. The 7th Civil Chamber of the Court of Cassation, in its decision Merits No: 2023/1828, underlined the continuity of the status of shareholder by confirming the right of pre-emption of a plaintiff who held a share prior to zoning and maintained the status of shareholder on the date of sale.
Critical Differences Between Ownership in Collaboration and Shared Ownership
For the right of pre-emption to be exercised, the immovable property must strictly be subject to the "shared ownership" (paylı mülkiyet) regime. In Turkish law, ownership structures are divided into two main categories: shared ownership and ownership in collaboration (elbirliği mülkiyeti). In ownership in collaboration (e.g., a heritage partnership), the partners do not have specific shares but hold rights over the entirety of the property together. Since it is technically impossible for one partner to sell their share to a third party without the consent of the other partners within this structure, the legal right of pre-emption cannot be exercised during the stage of ownership in collaboration.
However, the right of pre-emption may arise if the ownership in collaboration is converted into shared ownership. This distinction is of vital importance regarding the requirements of a pre-emption lawsuit; because in an immovable property under ownership in collaboration, one speaks of the status of "partner" (ortak) rather than "shareholder" (paydaş). The status of the holder of the right of pre-emption belongs only to shareholders in shared ownership. In shared ownership, the share of each shareholder constitutes a specific and independent legal value. In the event of the transfer of this share to a third party, other shareholders may request the transfer of this share to themselves through a "deed cancellation and registration lawsuit."
As stated in the judgment of the 14th Civil Chamber of the Court of Cassation dated 04.04.2013, Merits No: 2013/3254, Decision No: 2013/5282:
"The right of pre-emption is a right that grants the other shareholder the priority to purchase a share in the event that the share is sold to a third party in immovable properties subject to shared ownership provisions."
This definition clearly demonstrates that the right is unique to shared ownership and aims to protect the balance of ownership among shareholders. In ownership in collaboration, since different legal institutions such as the "transfer of inheritance share" are involved rather than a "sale of share" among partners, a right of pre-emption within the meaning of Article 732 of the TCC does not arise. Therefore, it is essential for right holders wishing to exercise the right of pre-emption over an immovable property to first confirm the type of ownership by examining the current land registry records from the relevant land registry office in Antalya for the success of the process.
The Fact of Sale to a Third Party and the Emergence of the Right of Pre-emption
The most fundamental legal fact required for the exercise of the right of pre-emption is the sale of a share by a shareholder to a "third party." The concept of "third party" refers to real or legal persons other than the existing shareholders of the immovable property. If a shareholder sells their share to another existing shareholder in the property, the right of pre-emption does not arise. This is because, in such a sale, the ownership structure of the property is not disrupted by external interference; on the contrary, an exchange of shares occurs among existing shareholders.
For the emergence of the right of pre-emption, the transaction performed must legally be a "sale" or a transaction "equivalent to a sale." The right of pre-emption cannot be exercised in cases such as donation, barter (trampa), or transfer through inheritance. Whether share transfers made within the scope of "construction agreements in return for land share," which are frequently encountered in current practice, will trigger the right of pre-emption is of great importance. The General Assembly of Civil Chambers of the Court of Cassation accepts that such transfers do not constitute a real sale but are in the nature of an "advance" given for the financing of the construction.
This matter was explained in detail in the decision of the General Assembly of Civil Chambers of the Court of Cassation dated 15.12.2020, Merits No: 2017/1765, Decision No: 2020/1033:
"Pursuant to a construction agreement in return for land share, the assignment of an immovable property or a share of an immovable property made by the landowner to the contractor or to a third party or parties at the contractor's request is in the nature of an 'advance' provided to secure financing for the construction... The legal right of pre-emption shall not arise in share assignments that are not the subject of a real sale and are not in the nature of a sale."
This jurisprudence defines one of the most significant obstacles plaintiffs may face during the pre-emption lawsuit process. If the transfer made is not a real sale, the plaintiff's request for deed cancellation and registration will be dismissed. The holder of the right of pre-emption can only assert this right in real sales made in return for a monetary consideration. As emphasized in the continuation of the decision, "Since the right of pre-emption must be exercised under the conditions of the sale of the share, it is not possible to acquire it from those who acquired the share for a consideration other than money by fulfilling it under the same conditions."
Furthermore, for the emergence of the right of pre-emption, the notification of the sale to other shareholders through a notary is a critical procedural transaction for the commencement of the statutory forfeiture periods. As stated in the decision of the 7th Civil Chamber of the Court of Cassation, Merits No: 2021/8373, the right of pre-emption is a right that arises at the moment the shared ownership relationship is established but becomes "exercisable" upon sale. Upon the realization of the sale, the buyer or the seller is obliged to notify the other shareholders through a notary pursuant to Article 733 of the TCC. If this notification is not made, the shareholder's right to file a lawsuit within 1 year from the date of sale shall be reserved.
The answer to the question of how long a pre-emption lawsuit lasts depends on how long it takes for these technical details and the nature of the sale to be clarified by the courts in Antalya. The mission of protecting the strategic value of the immovable property and preventing foreign persons from entering the partnership is a fundamental principle observed by the courts at every stage of the pre-emption lawsuit. As emphasized in the judgment of the 7th Civil Chamber of the Court of Cassation, Decision No: 2023/419, this right "ensures that shareholders protect the integrity of ownership," and this protection mechanism can be made effective through professional legal process management. The reality of the sale made to the third party, whether there is collusion (muvazaa) in the price, and the existence of the status of shareholder constitute the cornerstones of the case.
Statutory Forfeiture Periods and the Procedure of Notification via Notary
The legal right of pre-emption, also known as the şufa lawsuit, was established to protect ownership in the shared ownership regime and to prevent a foreign third party from entering among the shareholders. However, the exercise of this right is bound by strict statutory forfeiture periods due to the stability of immovable property ownership and the principle of legal certainty. Article 733 of the Turkish Civil Code (TCC) has based the commencement and operation of these periods on the condition of "notification through a notary," which is a special procedure. Within the framework of current judicial practices in 2026 and the settled jurisprudence of the Court of Cassation, since missing these periods in pre-emption lawsuits leads to the loss of the essence of the right, the technical details of the notification procedure are the most critical elements determining the fate of the case. This issue is frequently encountered in cases followed in Antalya.
The Role of Notary Notification in the Commencement of Forfeiture Periods
For the legal right of pre-emption to be exercised, a sale of shares must first have taken place. Upon the realization of the sale, the most important obligation falling upon the buyer or the seller is to notify the other shareholders of this sale through a notary. Pursuant to the provision of TCC Art. 733/3; "It is mandatory that the sale made be notified to the other shareholders by the buyer or the seller through a notary." This regulation is an official procedural transaction that initiates the forfeiture periods, beyond being a mere information form. The legislator did not deem it sufficient for the shareholder to be informed of the sale "in any way" but strictly indexed the commencement of the period to the notification to be made through a notary.
If the notary notification is not made, the fact that the plaintiff shareholder becomes aware of the sale externally (verbally, by examining land registry records, or hearing from third parties) does not cause the short period of 3 months to begin. Defenses by the defendant side such as "the plaintiff knew about the sale, they saw it when they came to the village" will not hold any legal value as long as the notary notification is not made. Violation of the notification obligation grants the right holder a broad period of 1 year to file a lawsuit from the date of sale.
Calculation of the 3-Month and 1-Year Periods and the Burden of Proof
Periods in a pre-emption lawsuit have a two-tier structure: "relative" and "absolute." If a proper notification has been made through a notary, the shareholder must file their lawsuit within 3 months from the date they received this notification. This 3-month period is a relative period and starts with the service of the notification. However, if the notary notification has never been made or is not in accordance with the procedure (e.g., made by ordinary mail or verbal statement), in this case, the lawsuit must be filed within 1 year from the date the sale was registered in the land registry. This 1-year period is an absolute period; even if no notary notification is made after 1 year has passed since the sale, the right of pre-emption expires completely.
ATTENTION!!! With Article 35 of Law No. 7571 dated 24/12/2025, the phrase "two years" in this paragraph has been changed to "one year."
Statutory forfeiture periods are taken into account by the judge ex officio (automatically). Even if the parties do not raise an objection regarding the expiration of the period, the court must supervise whether the 1-year period has expired by comparing the date of sale and the date of the lawsuit. Regarding the burden of proof, the burden of proving that the notary notification was made and that the 3-month period has passed lies with the defendant (buyer). If the defendant cannot prove that the notification was made with a notary receipt and a service annotation, the court will directly look at whether the 1-year period has expired.
Furthermore, regarding the commencement of the period, what should be understood from the expression "date of sale" is the moment the sale transaction is registered in the land registry. Real estate sales promise agreements or external sales outside the land registry do not initiate the legal right of pre-emption and, consequently, these periods. However, the transfer of ownership to a third party upon registration starts the clock for the forfeiture periods.
Awareness of the Sale vs. Notary Notification: Current Approach of the Court of Cassation
One of the most common disputes in practice is whether the 3-month period will begin if the shareholder learns of the sale by a means other than notary notification. Defendants generally defend that the lawsuit was not filed in time by asserting that the plaintiff was aware of the sale, that they met at the property, or that the sale was referred to in another case file. However, the Court of Cassation, strictly adhering to the letter of the law, does not deem the fact of "awareness" sufficient for the commencement of the period.
This principle was established in an unshakable manner in the current judgment of the 7th Civil Chamber of the Court of Cassation, Merits No: 2023/4735, Decision No: 2023/5541:
"The General Assembly of Civil Chambers of the Court of Cassation emphasized the provision that 'it is explicitly and definitively stated in the paragraph that the rule valid for the commencement of the period required for the exercise of the legal right of pre-emption in Article 733/3 of the TCC is not the fact of "awareness" but "notification through a notary".' The court accepted the case on the grounds that 'the lawsuit was filed within the forfeiture period since no notification was made to the plaintiff through a notary'."
This jurisprudence is the strongest protective shield for plaintiff shareholders in pre-emption lawsuits in 2026. Even if the plaintiff has learned of the sale, if they have not received a notice from the notary, they maintain the right to file a lawsuit until 1 year has passed from the date of sale. This approach of the Court of Cassation aims to prevent proof confusion and to prevent right holders from being misled. Notary notification not only starts the period but also provides the shareholder with the opportunity to officially learn the sales price and conditions.
Another severe consequence of not making the notary notification is its effect on the "pre-emption price." If the defendant buyer does not notify the sale through a notary, they are deemed to have caused the late filing of the lawsuit through their own fault. This situation may deprive the defendant of the right to request a "current price" in the event that the value of the immovable property increases due to inflation or market conditions. As stated in the decision of the 6th Civil Chamber of the Court of Cassation, Merits No: 2009/10703:
"Since the defendant buyer 'did not notify the sale to the plaintiff through a notary, they cannot request the pre-emption price to be determined by discovery (keşif) as they caused the period between the date of sale and the date of the lawsuit to pass by their own action'. The right of pre-emption must be granted over the sales price in the land registry and the total amount of deed fees, taxes, and expenses incurred by the buyer due to this share sale."
This rule proves that notary notification is not just a procedural formality but also a strategic obligation with economic consequences. A buyer who does not make the notification may have to consent to the property leaving their hands at the low price (shown in the land registry) from a year ago. Therefore, the forfeiture periods and notification procedure in the pre-emption lawsuit process are the most fundamental legal grounds that directly determine the material outcome of the case for both the plaintiff and the defendant. As of 2026, all courts, including the Antalya courts, meticulously examine the existence and content of the notary notification and protect the 1-year legal period of the shareholder to the end in every case where this obligation is not fulfilled.
Trial Process in Pre-emption Lawsuits and the Escrow of the Pre-emption Price
The pre-emption (şufa) lawsuit is one of the sharpest legal tools of the shared ownership regime, imposing a limitation arising from the law on the principle of free transferability of the right of ownership. The trial process of this case is not only an ownership dispute but also a process of technical price determination and the protection of this price by procedures determined by the court. This right, regulated in Articles 732 et seq. of the Turkish Civil Code (TCC), aims to protect the existing balance among shareholders and prevent the alienation of the property. However, the successful conclusion of the case depends on the complete fulfillment of the procedural steps in the trial process, especially the obligation to determine and escrow the pre-emption price.
Determination of the Pre-emption Price: Disputes over Registry Price and Real Value
One of the most fundamental points of dispute in a pre-emption lawsuit is what the "pre-emption price" to be paid by the plaintiff shareholder to take over the share will be. As a rule, the pre-emption price consists of the total of the sales price shown in the land registry and the fees, taxes, and deed expenses paid by the buyer due to this sale. This matter was clearly established in the judgment of the 14th Civil Chamber of the Court of Cassation, Merits No: 2013/3254, Decision No: 2013/5282:
"The pre-emption price consists of the total of the sales price shown in the land registry and the fees and expenses paid by the defendant."
This rule is based on the fundamental logic of exercising the right of pre-emption: The shareholder exercising the right of pre-emption becomes subject to the exact conditions in the contract made by the buyer with the seller. That is, the shareholder acquires the share with the same price and conditions by stepping into the shoes of the buyer. However, in practice, serious disputes arise between the parties regarding the price. While the defendant buyer claims that the value of the property has increased or that the price was shown low in the land registry, the plaintiff shareholder argues that the official price in the registry should be taken as the basis.
The most critical distinction here is whether the defendant buyer can rely on their own collusion (muvazaa). In its settled jurisprudence, the Court of Cassation finds it contrary to the rule of honesty for the buyer, who is a party to the sale, to claim that they deliberately showed the price high in the land registry to prevent the exercise of the right of pre-emption, or vice versa, showed it low to evade taxes. As stated in the judgment of the 7th Civil Chamber of the Court of Cassation, Merits No: 2022/1035, Decision No: 2023/2206:
"Since the defendant cannot request a legal result in their favor by relying on their own collusion, and since the plaintiff is in the position of a third party in this legal transaction, the defendant cannot assert a claim of collusion in the price against the plaintiff."
This decision emphasizes that the buyer is bound by their declaration in the title deed and cannot derive a right in their favor from their own collusive transaction. Therefore, the defendant buyer cannot request an increase in the price by saying "I actually paid more." On the other hand, the situation is different for the plaintiff shareholder. Since the plaintiff is not a party to the transaction, they are in the position of a "third party" and can prove with all kinds of evidence that the price in the land registry was shown high collusively to prevent the right of pre-emption. If the plaintiff proves this claim, the pre-emption price is determined over the "real value" determined by discovery and expert examination.
Another exception in price determination is the time difference between the date the lawsuit was filed and the date of sale. If a long time has passed after the sale and an objective increase in the value of the property has occurred during this period, it may be necessary to update the price for the sake of equity. However, this situation is generally discussed in cases where the defendant has fulfilled the obligation to notify the sale through a notary. The 6th Civil Chamber of the Court of Cassation, in its decision Merits No: 2009/10703, explained this strategic balance with these words:
"Since the defendant buyer 'did not notify the sale to the plaintiff through a notary, they cannot request the pre-emption price to be determined by discovery as they caused the period between the date of sale and the date of the lawsuit to pass by their own action'. The right of pre-emption must be granted over the sales price in the land registry and the total amount of deed fees, taxes, and expenses incurred by the buyer due to this share sale."
This jurisprudence registers that a buyer who does not make a notary notification has lost the right to benefit from the increase in the value of the property. Therefore, while determining the price during the trial process, the court primarily examines whether the notary notification was made and the legal grounds of the parties' claims of collusion.
Procedure for Escrowing the Sales Price and Expenses into the Court Registry
The most characteristic procedural rule of the pre-emption lawsuit is the escrowing of the pre-emption price into the court registry. Pursuant to TCC Article 734/2; the holder of the right of pre-emption is obliged to deposit the sales price and the deed expenses falling on the buyer in cash within the period determined by the judge, before the decision for the registration of the share in their name is rendered. This obligation is in the nature of a "pre-condition" for the acceptance of the case. This process was described as follows in the judgment of the 7th Civil Chamber of the Court of Cassation, Merits No: 2021/8562, Decision No: 2023/1225:
"The holder of the right of pre-emption is obliged to deposit the sales price and the deed expenses falling on the buyer in cash at the place to be determined by the judge, within the period determined by the judge, before the decision for the registration of the share in their name is rendered."
During the trial process, the court generally gives the plaintiff a definitive period to escrow the price after the preliminary examination stage or when the claims of collusion become clear. This price should cover not only the sales figure but also the mandatory expenses such as the fees paid by the buyer at the land registry office and the revolving fund management fee. The 14th Civil Chamber of the Court of Cassation, in its decision Merits No: 2013/3254, considered the court's decision to deposit only the sales price without calculating the fees as a ground for reversal:
"While the court should have decided on the payment of the amount consisting of the total of the sales price and the deed fees and expenses incurred by the defendant to the defendant, it was not correct to decide on the payment of only the sales price of 8,650 TL to the defendant side."
In recent years, the issue of "valorization" (nemalandırma - keeping the price in an interest-bearing account) has gained great importance in judicial practice. Pre-emption lawsuits can take a long time due to discovery and expert processes. The erosion of the price deposited by the plaintiff against inflation until the end of the case may constitute an unfair loss for the defendant buyer and an unfair enrichment for the plaintiff. To prevent this situation, the Court of Cassation emphasizes that the escrowed money should be kept in a time deposit account. This matter was justified as follows in the judgment of the 7th Civil Chamber of the Court of Cassation, Merits No: 2022/5639, Decision No: 2023/875:
"By deciding to escrow the price determined by the court, together with the sales expenses, in a time deposit account for the plaintiff whose claim of collusion in the price was accepted as of the date of preliminary examination, the loss of value that will occur in the pre-emption price due to the prolongation of the trial process will be prevented."
If the court does not perform this valorization process and the trial process exceeds a reasonable time, this situation appears as a ground for reversal. Escrowing the price is a procedural guarantee showing the plaintiff's seriousness and economic sufficiency in exercising their right. Failure to deposit this price or depositing it incompletely is critical enough to lead to the dismissal of the case without entering into the merits.
Factors Affecting the Duration of the Case: Discovery, Expert, and Appeal Stages
Although a pre-emption lawsuit seems like a simple deed cancellation case, it has many technical stages that are effective on the trial period. At the beginning of these processes comes "discovery and expert examination." The court must conduct a discovery at the property, especially if there is a claim of collusion in the price or if a defense of "actual partition" (fiili taksim) has been made by the defendant. During the discovery, the nature of the property, the structures on it, and the usage areas of the shareholders are determined one by one.
The defense of actual partition is an element that can completely change the course of a pre-emption lawsuit. If the shareholders have voluntarily divided the property among themselves and each is using a specific part, it is considered contrary to the rule of honesty for one to exercise the right of pre-emption in the event that another sells the part they use. The place of this situation in the trial was stated as follows in the current judgment of the General Assembly of Civil Chambers of the Court of Cassation, Merits No: 2023/218, Decision No: 2025/30:
"...the existence of the fact of actual partition is fixed, and a defense of actual partition can be made at every stage of the case, and even if it is not asserted by the parties... it is mandatory to be taken into account by the judge ex officio."
The existence of such defenses requires the hearing of witnesses and the preparation of detailed reports by expert witnesses (cadastral engineer, agricultural engineer, or real estate valuation specialist). Objections to expert reports and additional report processes may cause the local court stage to last between 12 and 24 months.
Another important matter affecting the duration of the case is the necessity of maintaining the active and passive legal standing at every stage of the case. The transfer of the share by the plaintiff shareholder during the trial or the change in the nature of the property by being subjected to a zoning application may terminate the case procedurally. The 14th Civil Chamber of the Court of Cassation, in its decision Merits No: 2014/12256, evaluated the situation of the plaintiffs whose status of shareholder changed as a result of a zoning application as follows:
"In that case, since the plaintiffs were not shareholders in the subject immovable property as of the date the lawsuits were filed, they do not have active legal standing."
Such changes in ownership require the court to keep the land registry records constantly updated and to wait for the written answers coming from the relevant institutions (Municipality, Land Registry Directorate). The appeal and cassation processes starting after the local court decision are also factors that prolong the finalization period of the case. Especially considering the judicial practices in 2026, it is seen that the appeal stage can also take up to a year due to the workload of the Regional Courts of Justice. However, the fact that the price has been escrowed in pre-emption lawsuits and the requirement for the finalization of the decision for the registration of ownership necessitates the plaintiff shareholder to perform a patient and meticulous legal follow-up.
The defendant's declaration of "acceptance of the case" during the trial process may also shorten the period, but this acceptance must be unconditional. Declarations such as "I accept if the price is deposited" while the price dispute continues are not considered a valid acceptance within the meaning of the CCP and do not terminate the trial. As emphasized in the decision of the General Assembly of Civil Chambers No. 2025/30, the court is obliged to continue collecting all evidence and the trial unless there is an "explicit declaration of acceptance in a way that is unconditional, without doubt and hesitation." This meticulous process ensures that the right of pre-emption is established in accordance with equity without shaking the security of ownership.
Obstacle of Abuse of Right and the Defense of Actual Partition
Pre-emption (şufa) lawsuits are technical lawsuits that directly interfere with the right of ownership and aim to protect the peace of the shared ownership regime. However, the legal order does not allow any right to be used in an unlimited and absolute manner for the purpose of harming another. As of 2026, in current judicial practices, one of the most important barriers in the exercise of the right of pre-emption is the "Rule of Honesty" regulated in Article 2 of the Turkish Civil Code and the defense of "Actual Partition" (fiili taksim), which is the embodied form of this rule. In this section, we will detail in which cases the right of pre-emption will be hindered by the rule of honesty and the decisive role of actual partition in the deed cancellation and registration processes.
Limits of the Right of Pre-emption Within the Framework of the Rule of Honesty (TCC Art. 2)
Article 2 of the Turkish Civil Code stipulates that "Everyone must comply with the rules of honesty while exercising their rights and fulfilling their obligations. The legal order does not protect the explicit abuse of a right." Even if the requirements for a pre-emption lawsuit have been met, the fact that the plaintiff shareholder acts contrary to the rule of honesty while exercising this right may lead to the dismissal of the case. Especially, the exercise of the right of pre-emption based on a purely formal right, for the purpose of disrupting existing agreements among shareholders or causing harm to the buyer, is not protected by the judiciary.
In the judgment of the 7th Civil Chamber of the Court of Cassation, Merits No: 2023/4735, Decision No: 2023/5541, the basic criteria regarding the abuse of right were determined as follows:
"In order to accept that a right has been abused, the right must be used contrary to its purpose and the person using the right must have no interest in this use."
In light of this jurisprudence, the fact that the plaintiff shareholder files their lawsuit within the statutory periods is not considered malicious as a rule. However, according to the characteristics of the concrete case, for example, the exercise of the right of pre-emption by a shareholder who knew in advance that the share in the property would be sold, approved the sales process, or negotiated with the buyer, after the sale has been realized, may be evaluated within the scope of the "prohibition of contradictory behavior" (venire contra factum proprium). Within the scope of the 2026 current guide, it should be noted that the rule of honesty applies not only to the plaintiff but also to the defendant buyer. The fact that the buyer shows the sales price high collusively in the land registry to prevent the exercise of the right of pre-emption is characterized by the judiciary as an "abuse of right" contrary to the rule of honesty.
This matter was clearly emphasized in the judgment of the 7th Civil Chamber of the Court of Cassation, Merits No: 2022/1035:
"The assertion by one of the parties to the contract (the buyer) against the shareholder exercising the right of pre-emption that there is collusion in the sales price and that the price is actually higher constitutes an abuse of right."
At this point, the buyer cannot request an increase in the pre-emption price by relying on their own collusive transaction. In such cases, the courts accept the total of the official price shown in the land registry and the fees and expenses as the pre-emption price.
Prevention of the Right of Pre-emption in Immovable Properties with Actual Partition
Actual partition is the situation where an immovable property subject to shared ownership is divided externally among the shareholders, and each shareholder uses a specific part independently. Although the property is still legally in the status of "shared ownership," this situation, formed by the long-term and consensual use of the shareholders, is the strongest defense mechanism preventing the exercise of the right of pre-emption. If an immovable property has been actually partitioned, in the event that a shareholder sells the area they use to a third party, the filing of a pre-emption lawsuit by other shareholders is considered contrary to the rule of honesty.
The legal consequence of actual partition was explained with these expressions in the judgment of the 7th Civil Chamber of the Court of Cassation, Merits No: 2023/215, Decision No: 2023/1612:
"While the immovable property to which the share subject to the pre-emption lawsuit relates is specifically partitioned among the shareholders and each shareholder uses a specific part, if one of them sells the place they use and the share corresponding to this place to a third party, the exercise of the right of pre-emption by the plaintiff, who did not claim rights in this place during the seller's time, due to the sale made in the land registry, is incompatible with the rule of honest behavior in Article 2 of the TCC."
For the defense of actual partition to be successful, the parts used by each shareholder in the property must be specific and this situation must have continued for a long time. In the discovery and expert examination to be performed by the court, structures, trees, or boundary-determining elements (fences, walls, etc.) on the property, if any, are examined. As stated in the current judgment of the General Assembly of Civil Chambers of the Court of Cassation, Merits No: 2023/218, Decision No: 2025/30:
"The existence of the fact of actual partition is fixed, and a defense of actual partition can be made at every stage of the case, and even if it is not asserted by the parties... it is mandatory to be taken into account by the judge ex officio."
This decision confirms that actual partition is not only a defense tool but also a material fact that the court must observe automatically due to public order and the rule of honesty. Therefore, the answer to the question "how long does the case last" in pre-emption lawsuits filed in Antalya is also shaped according to the discovery and witness hearing processes to be performed for the determination of the actual usage status in the property. If there is an active sharing in the property, the plaintiff shareholder's request for deed cancellation and registration will be dismissed.
Effect of Participation in Voluntary Auctions on the Right of Pre-emption and Waiver
The situations where the right of pre-emption cannot be used are limited pursuant to TCC Art. 733/1, and it is stated that this right cannot be used only in "sales by forced auction." However, in practice, when "voluntary auctions" (ihtiyari ihaleler) made by the Privatization Administration or other institutions are concerned, whether the participation of the shareholder in this auction and bidding constitutes a waiver of the right of pre-emption has been a matter of debate.
In the judgment of the 7th Civil Chamber of the Court of Cassation, Merits No: 2023/2964, Decision No: 2023/4446, it was ruled that participation in voluntary auctions does not eliminate the right of pre-emption as follows:
"The participation of a shareholder of an immovable property in an auction to purchase a shared portion of that immovable property offered for sale by voluntary auction, bidding, and subsequently withdrawing from the auction does not imply a waiver of the right of pre-emption, and this shareholder can exercise the right of pre-emption against the third party who purchased the shared portion through the tender made as a result of the auction."
This jurisprudence shows that the right holder's attempt of different ways to acquire ownership (such as participation in the auction) does not kill the priority purchase right arising from the law. Defenses by the defendant side such as "The plaintiff participated in the auction, bid but did not buy, now filing a lawsuit is contrary to the rule of honesty" are not accepted by the judiciary. Because the shareholder may have tried to prevent the property from passing to a stranger in the first place by participating in the auction; the failure of this effort does not constitute an obstacle to the exercise of the legal right of pre-emption.
In judicial practices in 2026, the obligation of notary notification continues in lawsuits filed after such auctions. If the sale made after the auction has not been notified to the shareholders through a notary, the one-year forfeiture period will be applied even if the date of the auction is known. This situation is a result of binding the security of ownership to formal conditions (notary notification).
In conclusion, the pre-emption lawsuit process is not only a follow-up of periods but also a process of filtering the actual status of the property and the past behaviors of the parties through the rule of honesty. The existence of actual partition or the active approval of the plaintiff in the sales process can confront even the most justified pre-emption requests with legal obstacles.
Conclusion
In accordance with the legal grounds explained in detail in four sections above, the relevant legislative provisions, and the settled jurisprudence of the Court of Cassation;
- Whether the legal right of pre-emption (şufa hakkı) of the right holder in an immovable property subject to shared ownership will be protected,
- Whether the sale transaction has been notified to the shareholders through a notary,
- Whether the lawsuit has been filed within the one-year forfeiture period,
- Whether the pre-emption price can be determined over the total of the official sales price shown in the land registry and the fees and expenses paid by the buyer pursuant to TCC Art. 734 and settled jurisprudence,
- Whether there is any actual partition on the property,
- Whether the exercise of the right by the shareholder shows full compliance with the rule of honesty (TCC Art. 2),
Such matters shall be taken into account as they will affect the merits of the case. In order not to be subjected to any loss of rights, assistance must absolutely be sought from an expert attorney in Antalya.
