The Biggest Mistakes When Transferring Title Deeds in Antalya!

Real Estate Attorney’s Guide — Att. Rafet Aslan

CRITICAL CONTROLS AND ENCUMBRANCE ANALYSIS PRIOR TO REAL ESTATE TRANSACTIONS

The transfer of immovable property is bound by strict formal requirements in the Turkish legal system and is built upon the principle of the "reliability of the land registry." Deciding to purchase real estate is not merely an economic investment but also the initiation of a complex legal process. In cases we have conducted for clients engaging in real estate transactions in Antalya, we have repeatedly observed that the most critical stage of this process is the "encumbrance analysis" (takyidat analizi) and the examination of the property's legal status, which must be performed long before signing at the Land Registry Office.

Pursuant to Article 1020 of the Turkish Civil Code, the land registry is open to the public, and no one can claim ignorance of a registration. This imposes a "duty to know" on buyers and creates a legal presumption that any restrictions (annotations, pledges, liens) present in the registry are accepted by the buyer upfront. Therefore, an accurate analysis of existing obligations on the property is the only way to prevent irreparable loss of rights in the future.

Mortgage Release (Fek) and the Legal Effects of Existing Annotations

One of the most common obstacles in real estate transactions is mortgage records. A mortgage is the pledging of a property as security for a debt and has the characteristic of "following" the property even if ownership changes hands. When buyers take over a property before the "mortgage release" (ipotek fekki) process is completed, they essentially risk their own property for someone else's debt.

Encumbrance analysis should not be limited to mortgages; the "annotations" (şerhler) section of the registry must also be meticulously examined. Records such as family residence annotations, precautionary attachments, interim injunctions, or lease annotations are elements that restrict the use of ownership rights or completely prevent the transfer. As emphasized in the decision of the Ankara 14th Civil Court of First Instance (Merits No: 2022/174, Decision No: 2022/726), failing to check restrictions in the title deed and zoning records constitutes a significant lack of due diligence.

The 5-Year Annotation Period in Promises to Sell and Loss of Rights

Real estate promise-to-sell agreements are preliminary contracts, mandatory to be executed before a notary, where parties mutually undertake the future sale of a property. Annotating these agreements in the land registry provides the beneficiary with a right effective against third parties (in rem effect). However, this protection is not infinite. Article 26/8 of the Land Registry Law No. 2644 limits the duration of these annotations to five years.

In real estate lawsuits in Antalya, we frequently observe this risk, especially in property acquisitions for tourism purposes. The most concrete risk is the transfer of the property to bona fide third parties upon the expiration of the annotation period. This risk was clearly highlighted in the decision of the 14th Civil Chamber of the Court of Cassation (Merits No: 2016/13939, Decision No: 2017/5637).

Right of Pre-emption (Shufa) and Eliminating Third-Party Rights

Perhaps one of the most hidden and dangerous risks in real estate acquisitions is the "right of pre-emption" (şufa hakkı). The legal right of pre-emption, regulated under Article 732 of the Turkish Civil Code, grants other shareholders the priority to purchase a share if one shareholder in a property subject to shared ownership sells their share to a third party. As a buyer, if you are purchasing only a portion (share), you face the risk of other shareholders filing a "pre-emption lawsuit" at any time to take the property from you.

Incorrect Title Transfer and Burden of Proof: 1/2 Share or Full Ownership?

Technical errors during transactions at the Land Registry Office can sometimes lead to results inconsistent with the will of the parties. A recent decision by the 1st Civil Chamber of the Court of Cassation (Merits No: 2025/1507, Decision No: 2025/6185) proves how difficult it is to prove such an error. This decision clearly demonstrates the binding nature of a signature at the Land Registry and how challenging it is for the claim of "made by mistake" (sehven) to be accepted by the courts.

FINANCIAL AND LEGAL RISKS OF IRREGULARITIES IN TITLE DEED FEES AND MARKET VALUE DECLARATIONS

The transfer of immovable property is also a process where serious financial obligations arise within the scope of the state's taxing authority. In Antalya, we encounter the risk of "under-declaration" much more frequently, especially in transactions involving foreign nationals. Irregularities in title deed fees (tapu harcı) and market value declarations pose a wide range of risks, from tax office audits to pre-emption lawsuits.

Tax Penalties for Under-Reporting Sales Price and "Repentance" Declarations

Pursuant to Article 63 of the Fees Law No. 492, the title deed fee in real estate transfers and acquisitions must be calculated over the declared actual transfer price, provided it is not less than the property tax value. In a concrete example from the Konya Regional Administrative Court, 1st Tax Litigation Chamber (Merits No: 2020/893, Decision No: 2020/1027), a tax loss penalty and title deed fee assessment were issued based on a precedent value of 500,000 TL determined by the appreciation commission, instead of the declared sales price of 60,000 TL.

For taxpayers facing such financial risks, the "repentance and correction" (pişmanlık ve ıslah) mechanism regulated in Article 371 of the Tax Procedure Law is a critical exit strategy. If an application is made before an audit begins, it is possible to avoid the tax loss penalty. However, once an audit has commenced, this opportunity vanishes, and a 25% tax loss penalty plus default interest becomes applicable.

Secure Payment Methods: The Importance of Blocked Checks and the Title Deed Swap System

The paradox of "should the money be given first or the title deed transferred first" forms the basis of many fraud cases. At this point, "Blocked Checks" and "Title Deed Swap" (Tapu Takas) systems are of vital importance. In the Title Deed Swap system conducted through Takasbank—the most secure method—the buyer deposits the money into a secure account; the system automatically transfers the funds to the seller's account the moment the registration is completed.

LEGAL TRAPS IN TRANSACTIONS CONDUCTED VIA POWER OF ATTORNEY AND BURDEN OF PROOF

In lawsuits regarding real estate acquisition by foreign clients in Antalya, disputes arising from powers of attorney (PoA) are particularly noteworthy. A PoA is a powerful legal tool that allows the transfer of a right under constitutional guarantee, such as ownership; however, this power brings significant risks and potential for abuse.

Use of Forged Powers of Attorney and Limits of the Buyer's Duty of Care

The decision of the 5th Civil Chamber of the Court of Cassation (Merits No: 2022/14163, Decision No: 2023/7533) clearly defines the limits of the buyer's duty of care: If the difference between the photograph on the PoA and the photograph in the land registry is noticeable to the naked eye, the buyer cannot escape liability by claiming "I relied on the land registry records." Pursuant to Article 3 of the Turkish Civil Code, it is stipulated that "a person who does not show the care expected of them according to the requirements of the situation cannot claim good faith."

Abuse of Power of Attorney and Deed Cancellation and Registration Lawsuits

The decision of the 1st Civil Chamber of the Court of Cassation (Merits No: 2014/7555, Decision No: 2016/3099) explicitly emphasizes the principle: "The agent is obliged to carry out the undertaken business and services with loyalty and care, observing the legitimate interests of the principal." If a property has been transferred at a price significantly below market value and it cannot be proven through bank records that this price was paid, the presumption of abuse of the power of attorney is strengthened.

STATE LIABILITY FOR DAMAGES ARISING FROM THE MAINTENANCE OF LAND REGISTRIES

Pursuant to Article 1007 of the Turkish Civil Code, "The State is liable for all damages arising from the maintenance of the land registry." This article regulates the principle of strict (objective) liability, not based on fault. The 5th Civil Chamber of the Court of Cassation (Merits No: 2022/15649, Decision No: 2023/6574) clearly stated that this liability is not dependent on the fault of the land registry officer. However, the gross negligence or omission of the injured party may break the causal link between the state's liability and the damage.

CONCLUSION

Hundreds of properties change hands every year in Antalya, and a significant portion of these transactions are carried out without legal consultancy. A small technical error or omission during the title deed transfer can lead to the loss of ownership rights, heavy tax penalties, or deed cancellation and registration lawsuits lasting for years. In real estate law, "preventive law" services are much safer and more economical than the "remedial law" (litigation) process.