III.

LAW OF PROPERTY
NOTE: In civil law, legal rights may be classified as rights in personam (against the person)
and rights in rem (against the thing). Rights in personam are claims made against a specific
person (like a contractor), or rights affecting a particular person or group of people. Rights in
rem are rights that should be respected by other people generally, such as ownership of a
property. The latter is subject of the law of property.

Types of properties (in Turkish Law):

1. Immovable properties (real properties in English Law): Properties that cannot be moved,
like lands and their ‘fixtures’ (like buildings), apartment flats that are subject to
condominiums. Rights in rem, which have been registered as permanent and independent
rights on property, to the Land Registry, are also considered ‘immovable properties’ in
Turkish Law.
2. Movable properties (personal properties in English Law): Properties that can be moved
(carried) like cars, vessels, books, clothes etc.

Types of Rights in Rem (in Turkish Law):

1. Ownership: It is the most extensive legal right one can have over a property. Owner of a
property has the powers to control (usus), waste (abusus) or is entitled to all legal and/or
natural produces (fructus) of the related property (and principally its ‘fixtures’), exclusively.
Note: Condominium: Individual ownership of an independent part of a building, like a flat in
a block of flats, combined with common ownership of the parts of the building used in
common. In Turkish Law, condominium is accepted as a special kind of property ownership.
2. Servitudes: Obligations that curtail the rights of the owner of a property in favour of the
owner of a restrictive covenant (limitation on the ownership prevents the owner from using
his property in certain ways), or prevents him from using his rights against certain activities of
the owner of the servitude (like ‘profit à prendre’ [right to take, soil, water, or produce wood,
turf, fish etc. from another’s land or graze animals on it]).
Note: Servitudes might be either in the form of easement (rights in favour of the owner of
another land) or in gross (in favour of an individual or individuals independently of any
ownership of any land).

Some important types of servitudes in Turkish Law:

Usufruct: The power to control and have legal and/or natural benefits over a property. Since,
usufruct is the most extensive servitude, the right of the owner of a property that is subject of
a usufruct, is called naked ownership. Usufruct is servitude, which can be only in gross.
Superficies: The right in rem to create a construction or preserve an existing construction and
have the ownership of the construction apart from the ownership of the land. Superficies
results in separate ownership over the fixture of a land. Therefore, superficies registered as an
independent (transferable) and permanent (lasting for at least thirty years) right, to the land
registry, is considered an immovable property. Superficies might be either in the form of an
easement or in gross.
Right on spring: The right to have and transfer water coming out of a spring in another one’s
land.

3. Land Charge: It is an interest in land (servient tenement) that imposes an obligation on the
landowner in favour of some other person, who might be either an individual certain in name
(the chargee) or owner of another land (dominant tenement). Land charges will normally bind
the future purchasers of the land, so identity of the obliged landowner might change. The
obligation on the landowner must be a positive one; so, land charges cannot be in the form of
restrictive covenant in Turkish Law.

4. Mortgage: Real security (security in rem) for a loan or payment of a debt. It might be a
pawn (pledge) over a good (chattels personal, movable property) or hypothecation (which
means, in Turkish Law, mortgaging an immovable property). To create a pawn, the pawnor
(owner of the good in question) shall transfer it to the pawnee. To mortgage an immovable
property, the mortgagor (owner of the immovable property in question) shall apply to the
Land Registry, to register the mortgage, which will be in favour of the mortgagee. In either
way, the mortgagee may apply the Execution Office for putting the property up for sale, if his
credit does not return (in the case of non-repayment); regardless of the will of the current
owner of the property.

Possession
Possession: Intentional actual control over a property. In Turkish Law, possession is generally
considered a legal situation, –though it is not accepted as a legal right– which has certain legal
consequences and results in a limited legal protection in favour of the possessor.
Elements of Possession:
(1) Actual Control: It means direct control over the thing possessed. But direct physical
proximity, between the possessor and the possessed, is not necessary. For example, holding
the tools –like keys or access cards– that are necessary for access to the possessed, indicates
to the possession.
(2) Intention to possess: It may also be called ‘intent’ or ‘intention to use’. One must possess a
property ‘intentionally’, to have the possession of the property in legal sense.

Note: One must note the various types of possession referred by different terms in different
laws of the states. They are all considered possession and protected by law. Examples:
Actual Possession (in English Law): Direct physical control over a property.
Constructive possession (in English Law): when a person does not have ‘actual possession’,
but has the power to control an asset, he/she has constructive possession. Having the key to a
safe deposit box, for example, gives one constructive possession.

Immediate (Direct) Possession (in Turkish Law): Personal control over an asset whether
actual or constructive.
Mediate (Indirect) Possession (in Turkish Law): Possession through the acts (and will) of
someone else. For example, a person who has rented his car to another one is considered the
‘mediate possessor’ of the car; where the renter, using that car, is ‘immediate possessor’ of it.
Mediate possession remains, until the car returns to its owner or the renter denies the owner’s
right to the car.
Proprietary Possession (in Turkish Law): Mediate or immediate possession of the property
by the alleged proprietor.
Non-proprietary Possession (in Turkish Law): Possession of the property, by one other
than its alleged proprietor, relying upon the consent of the proprietor and without denying the
proprietor’s title to the property.

The most important types of possession are ‘justified possession’ and ‘unjustified
possession’ that have been based on the principles of Roman Civil Law.
Justified Possession: Possession of the property by one, who has a legal right, to the
property, which justifies the possession. The legal right in question might be either a right in
personam (for example, the right of a renter) or a right in rem (for example, the right of an
owner).
Unjustified Possession: Possession of the property by one, who does not have a legal right to
the property. For example, possession of a stolen good by the thief is an unjustified
possession. Note that an unjustified possessor might be a bona fide (innocent) unjustified
possessor or not.

Legal Consequences of Possession

1. Legal Protection of Possession: Possessor of a property has some rights of action for
return of the possessed, which have been stolen or illegally seized. For immovable properties,
he has right of action for a court order of eviction against the one, who illegally occupied the
land. In Turkey there is also an administrative way to protect possessions of immovable
properties. The legal possessor, whose possession has been illegally ended, may apply to the
local administrative offices (governors or sub-governors) claiming support to evict the
occupier. These rights are granted to the possessors, regardless with the type of their
possession, in principal.
2. Right to use force: Under certain circumstances and complying with certain legal
conditions, possessor may use physical force to protect his/her possessed and he/she cannot be
held liable for the damage.
3. Presumption of ownership: Possession constitutes a ‘rebuttable presumption’ as to
ownership or whatever the alleged right is. (See Art. 985-7 of Civil Code)

Note: Presumption: As a matter of evidence (proof), a supposition that the law allows or
requires to be made. There are two kinds of presumption: Rebuttable presumptions are
suppositions, which hold good only in the absence of contrary evidence; irrebuttable
presumptions are presumptions that the law does not allow to be contradicted by any
evidence.

Note: Possession constitutes a presumption as to the alleged rights, only if the property in
question is a movable one. For immovable properties, owners and other persons, who have
rights in rem, are determined by the records in the Land Registry.

4. Adverse Possession: means to acquire title to land (or any movable property) through
obvious occupancy of the land (or possession of the movable property adversely to the title),
while claiming ownership for the period of years set by the law of the state where the property
exists. Payment of property taxes and making improvements (such as paving or fencing) for
the statutory period (varies by state) are evidence of adverse possession but cannot be used by
a land grabber with no claim to title other than possession. The statutory periods necessary for
adverse possession in Turkish Law are listed below:
(a) For acquisition of ownership of a movable: a (1) bona fide unjustified possessor must
keep the possession of the movable property (2) without a conflict (3) for a period of five
years without interruption. (See Art. 777/I of Civil Code)
(b) For acquisition of ownership of an immovable: There are two kinds of adverse
possession in the law of immovable property:
1. A (1) bona fide unjustified possessor, (2) who has been misleadingly registered to the Land
Registry as the owner, must keep the possession of the immovable property (3) without a
conflict (4) for a period of ten years without interruption. (See Art. 712 of Civil Code)
2. Or, an (1) unjustified possessor (whether bona fide or not) must keep the possession of an
immovable property, (2) which’s not registered, or which’s owner cannot be understood in the
Land Registry or has been died or declared missing by court (judicial decree of presumption
of death) twenty years ago, (3) without a conflict (4) for a period of twenty years without
interruption. (See Art.713 of Civil Code)

Note: Acquisition of servitudes, through continued use for a certain period of time
(specifically called acquisitive prescription in English Law) is possible in Turkish Law. Legal
provisions about the acquisition of ownership through unjustified possession apply to
prescriptive easements and profits, mutatis mutandis (by analogy).

IV. LAW OF OBLIGATIONS

There are three main sources of legal obligations: Contract, Tort, and Unjust Enrichment.

Contracts

Nature and Formation of a Contract

There are three words, which have great importance in the nature and formation of a contract:
(1) ‘Offer’
To begin forming a contract, an ‘offeror’ (also called ‘promissor’) may make an offer, by
either (written or oral) word(s) or a conduct.
a) Word(s) of offer is called ‘express offer’ and conduct of offer is called ‘implied offer’.
b) Such an offer must be intentionally communicated to the person, who is supposed to be the
acceptor (also called offeree or promisee).

(2) ‘Acceptance’
A person, who has received an offer, must make an acceptance of the offer, to form the
contract, by either (written or oral) word(s) or a conduct.
a) Word(s) of acceptance is called ‘express acceptance’ and conduct of acceptance is called
‘implied acceptance’.
b) The acceptance must be communicated to the offeror, to form the contract. Legal results of
communication of acceptance are retroactive; so, a contract, which is formed at the moment
of the communication of the acceptance, comes into force as from the moment of the making
of acceptance.

(3) ‘Consensus’
To result in existence of a valid contract, the acceptance must be the acceptance of what has
been offered. Acceptance of terms, other than the ones indicated by the offer, may be
considered not an acceptance, but another offer; and does not form a contract. So, the offer
and the acceptance must indicate to an ‘agreement’.
a) Consensus on the essential terms of the contract is required and enough to form the
contract. So they must be agreed to make a contract.
b) Secondary terms, which are not that important to the parties, may remain unsettled; unless,
it is clear that the parties considered them important to themselves at the time of the making
of the contract.
Example: Think about the essential elements of a contract for ‘sale of (X) Book’: (1) Delivery
of the (X) Book (2) in return for a price. These are the essential elements for the sales contract
in question, and agreement (offer-acceptance) on these elements is required to make this
contract. Delivery place and type of the ‘package’, of the book, are secondary terms.
Note: Future conflicts between the parties, regarding to such secondary elements that will
have not been settled before, are going to be solved by application of the subsidiary legal rules
in acts and the rule of ‘good faith’ (principle of honesty or equity rules).

Notes on ‘offer’ and ‘acceptance’:

1. The offer and acceptance must be clear and unequivocal, whether made by word(s) or
indicated by conduct. Therefore, for example, draft offers made during the negotiations
cannot be considered binding offers in legal sense.
2. Revocation of offer and acceptance: In Turkish Law, it is possible for the offeror to revoke
his offer, only if the revocation is communicated to the potential acceptor before the offer, or
he is notified of the revocation before he learns the offer. Otherwise, the offeror is bound by
his offer. The same rules apply to revocation of the acceptance, too.
Note: In English Law, principally it is always possible for the offeror to withdraw his offer,
until the acceptance is made; unless, a subsidiary binding agreement between the parties has
been made.
3. Lapse of offer: It means for offer to cease being binding. Principles about lapse of offer:
a) If the offer is made – physically or through modern telecommunication – in the presence of
the offeree or his ‘representative’, accept shall be ‘instant’; unless, otherwise has been agreed
on. If not, the offer lapses.
b) If offeror fixes a time-limit (a deadline) for acceptance, the acceptance shall be
communicated to him before the end of the certain time-limit. If not, the offer lapses.
c) If the offer has been communicated from a distance, the acceptance shall be communicated
to the offeror in a ‘reasonable’ time. If this communication is delayed beyond a reasonable
time, the offeror may consider his offer lapsed.
d) Death of either party creates automatic lapse, if personality and/or personal abilities of the
party, who died, was important to the contractor(s).
4. Form of the contract: Generally no particular form is required for making a contract
(simple contracts); unless, the parties have agreed on otherwise. However, some contracts
shall be made in special forms, to be valid, that are either simply written or official. To make
a contract in official form, participation of an official (generally notary public, or
–sometimes– officer of the Office of Land Registry) is required. The official will form the
written contract to have the signatures of the parties, or exceptionally only seal the written
contract, which have been formed by the parties themselves, to guarantee that the signatures
on it are genuine.
Invalidity of Contracts

1. Null Contracts: Offer and acceptance, creating an explicit consensus, are essential elements
of a contract. Lack of offer or/and acceptance results in nullity of the ‘contract’.
2. Void Contracts:
a) Absence of intention to contract (though offer or acceptance has been made) may result in a
void contract. Offers and acceptances, which are mere ‘puffs’ such as clear jokes, do not
cause a valid contract to exist. However, sometimes, the circumstances (which
offer/acceptance has been made under) or certain conducts of the offeror/acceptor may cause
the other party to consider the offer/acceptance serious, justifiably; and therefore, can result in
existence of a valid contract.

Note: ‘Simulatio’ should be mentioned here specifically: The parties may secretly agree on
that a contract made by them will not be binding and simulate a contractual relationship,
which do not stand for real, but for deceiving third parties. The secret agreement in question is
called ‘contract of simulatio’ and the misleadingly disclosed contract is called ‘simulated
contract’. Contract of simulatio causes the simulated contract to be void, because it indicates
to bilateral absence of intention to make a ‘real’ contract. Existence of an alleged contract of
simulatio may be evidenced by either party or a third party before courts.

b) Contracts, having illegal objects and/or subject-matters, contravening mandatory legal

rules, public interest or moral principles, or infringing rights of personality, are considered
void. (See Art. 19-20 of Code of Obligations)
3. Voidable Contracts: Certain incidents that have vitiated the parties’ intentions to contract
may result in a voidable contract:

a) Mistake: Certain mistakes of facts, which cause a party to make a contract, may result in a
voidable contract. But to have this consequence, the mistake in question must have an
important role in deciding to make the contract under consideration. Such mistakes are called
‘operative mistakes’.
Note: In contrast with Turkish Law, in English Law an operative mistake renders the contract
void, not voidable.
b) Fraud (Deceit): Might be either ‘nondisclosure’ (concealment) or ‘misrepresentation’.
Nondisclosure means the (intentional) failure by one party, during negotiations for a contract,
to disclose to the other a fact known to him that would influence the other in deciding whether
or not enter into the contract. Misrepresentation means an untrue statement of fact(s), made by
one party to the other in the course of negotiating a contract, that induces the other party to
enter into the contract.
Note: Fraud by a third party, which has induced one party to enter into the contract, and was
known by the other party of the contract, also makes the contract voidable.
c) Duress: Pressure by threats. Threatened or actual physical force or illegal restraint prevents
one from exercising his/her free will. A contract obtained by duress is voidable.
d) Undue Influence: Influence that prevents someone from exercising an independent
judgement with respect to any transaction. The undue influence must be proved to show that
there is a dealing or transaction in which an unfair advantage has been taken of another
person, who is unreasonably frivolous or considerably inexperienced or in awkward
predicament.
Note: Contracts, which are voidable, may be set aside by the party, who suffered the mistake,
fraud, duress or undue influence in question, by communicating indication of his/her intention
not to be bound by the contract, to the other party. Communication of such an indication is
called ‘rescission’ (cancellation). But there is a limitation on the right of rescission: The
rescission shall be made in one year after mistake or fraud is revealed, or the duress ends, or,
in case of undue influence, after making of the contract. Otherwise, right of rescission lapses
at the end of the period of one year.

Note: In English law, contracts that have been procured by the exercise of undue influence are
liable to be set aside by the courts, not by the relevant party himself. And in such cases if
certain relationships (like the ones between parent-child, husband-wife, doctor-patient, and
solicitor-client) are under consideration, exercise of undue influence is presumed in the
absence of evidence to the contrary.