Real Estate Sales Promise Agreement

Real Estate Sales Promise Agreement | Izmir Real Estate Lawyer Attorney Mustafa Yolcu

What is a Real Estate Sales Promise Agreement?

A contract for the promise to sell real estate is considered a preliminary contract in our legal system. The parties to this contract have the right to request the sale of the property from each other. Both the buyer and the seller can make this request.

A contract for the promise to sell real estate is considered transferable. In other words, the rights and obligations arising from the contract can be transferred.

A promise to sell real estate can be made in both co-ownership and joint ownership. However, in joint ownership, the fulfillment of the contract is only possible upon the termination of the joint ownership situation.

In cases where multiple sales agreements exist for the same property, priority should be given to the earlier agreement.

Formal Requirements

A Promise to Sell Real Estate Agreement can be drawn up by land registry officers and notaries authorized to draw up sales contracts.

Law of Obligations

Article 29- Agreements relating to the future conclusion of a contract are valid. Except for the exceptions provided for in the laws, the validity of a preliminary agreement depends on the form of the contract to be concluded in the future.

Notary Law

Article 60 – The duties of notaries include: ... Drawing up contracts for the promise of sale of real estate.

Article 89 – Contracts and powers of attorney that, by their nature, require registration in the land registry, as well as wills, sales with retention of title, promises to sell real estate, foundation deeds, marriage contracts, adoption and recognition, inheritance division agreements, and other transactions stipulated in other laws, are regulated according to the provisions of this chapter.

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Article 41- (1) Registration of the prepaid housing sale in the land registry and the sales promise agreement It is mandatory to have it drawn up in the form of a notarized document. Otherwise, the seller cannot subsequently invoke the invalidity of the contract to the detriment of the consumer.

Statute of limitations

There is no specific statute of limitations for lawsuits arising from contracts for the promise to sell immovable property. Under the Turkish Code of Obligations, a general ten-year statute of limitations applies, and this period begins to run from the moment the possibility of performance of the contract arises.

Precedent Court Decisions

SUPREME COURT OF APPEALS, 14TH CIVIL CHAMBER, CASE NO. 2015/6890, DECISION NO. 2018/747

The court ruled that the property in question was not registered in the defendant's name in the land registry at the time the sales promise agreement was drawn up, and therefore the sales promise agreement was invalid; that a lawsuit for cancellation and registration of title could not be filed under this agreement; and that the 20-year acquisitive prescription period had not expired between the date the agreement was drawn up and the date of the lawsuit, thus failing to meet the conditions stipulated in Article 713/2 of the Turkish Civil Code, and therefore dismissed the case.

SUPREME COURT OF APPEALS, 14TH CIVIL CHAMBER, CASE NO. 2013/8243, DECISION NO. 2013/12094

Real estate sales promise agreements, originating from Article 22 of the Turkish Code of Obligations No. 818, are a type of contract that must be drawn up ex officio before a notary public in accordance with Article 213 of the Code of Obligations, Article 706 of the Turkish Civil Code, and Article 89 of the Notarial Law. In other words, their validity is subject to formal requirements, and they impose obligations on both parties and grant personal rights. If the seller, who is obligated to transfer ownership under the real estate sales promise agreement, fails to fulfill the obligation, the promisee may request the court-ordered fulfillment of the debt in a lawsuit for cancellation and registration of the title deed, in accordance with Article 716 of the Turkish Civil Code No. 4721.

It is possible for the owner to subsequently promise to sell the property that is the subject of a sales promise agreement to another person. In such cases, there is a competition of personal rights. As a rule, unless the contract is invalid or terminated, the principle of priority applies to competing personal rights, and therefore the earlier dated right is given precedence. The sales promise agreement made with the defendants' deceased relative, HG, son of I., is dated May 5, 1993. The sales promise agreement made with the plaintiff, HG, son of A., is dated March 27, 1996. Considering that the parties are from the same village and are close relatives, it is understood that the plaintiff should have known that the properties were purchased by the defendants' deceased relative. Therefore, priority should be given to the earlier dated personal right. However, the decision to accept the case on the grounds that ownership was acquired before registration due to a previously finalized court decision is deemed incorrect, and for this reason, the judgment must be overturned.

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