A real estate sales promising contract is a preliminary contract that undertakes to transfer the property of real estate in the future to the title deed. Real estate sales promising contracts are also valid if they are issued in the form of official promissory notes and signed by both parties in the presence of a notary public. In this information note, while examining this type of pre-contract for you, we also touched upon the means by which the victims of this contract can apply.
Although the Turkish Code of Obligations(TCO) has adopted the freedom of form in contracts as a rule, the principle of adherence to form is accepted if there is a contrary provision in the law. If a special form is foreseen in the law and no other rules are set for the scope and results of this form, it is concluded that the contract will not be valid unless this form is followed.
In Article 29 of the Turkish Code of Obligations, titled "Pre-contract": "Contracts regarding the establishment of a contract in the future are valid. Except for the exceptions stipulated in the laws, the validity of the pre-contract depends on the form of the contract to be established in the future.” provision is included. This provision also shows us that in whatever form the validity of a contract is subject to, the commitment must be made in accordance with this form. Contracts that create the obligation to transfer the ownership of real estate is subject to the official form requirement by law. As a natural consequence of Article 29 of the TCO explained above, it will be understood that the condition of binding the sale of real estate to an official form in order for it to be valid is also stipulated for the promise contracts for the sale of real estate . Just like contracts for the transfer of real estate ownership, contracts for the promise of sale of real estate must also be concluded in an official form, that is, through a notary public. Otherwise, these contracts will be deemed invalid ex officio, that is, without the need for any further action.
Real estate sales promising contracts, which are essentially personal rights, can be made public by annotation in the title deed, and thus, it can be possible to assert the rights arising from this contract before third parties. The validity of this annotation, which does not transform the personal right provided by the contract into a real right, but gives "kind effect", also depends on the validity of the preliminary sales contract. The validity and protection of the annotation entered into the title deed based on an invalid contract cannot be mentioned.
In the promise of sale contracts, which must be formally arranged and impose debts on both parties, the party fulfilling its performance may also request the other party to fulfill its performance. In contracts of sale, which are generally among the contracts that cause assignment debt, the subject of sale need not exist at the time the contract is made or be in the assets of the seller. In this respect, things that will be made or produced or produced in the future may also be subject to sale. In other words, the seller of the contract may also sell the movables/real estates belonging to someone else. If the seller has sold the movable/real estate belonging to someone else and has not been able to obtain the power of disposition on that movable/real estate until the time of performance and therefore cannot fulfill his debt, he may be held liable by the court to pay compensation as a result of lawsuits to be filed in civil or commercial courts of first instance, depending on their nature. If there is a 'penalty clause' in the content of the real estate promise to sell contract signed between the parties, this amount may also be demanded from the party that does not fulfill its obligation under the contract.
As a result, 'real estate promise contracts', which are drawn up in common written form (only by signing under the contract context) by sellers and especially real estate investment companies, with the aim of not paying notary expenses many times, should not be accepted by the buyer. In addition, even if the contracts drawn up in this way do not fulfill the legal validity requirement, the persons ,who are aggrieved due to invalidity of real estate promise contact against the companies that make the promise of sale under the name of investment, construction, real estate companies, can also claim that they have a valid contract by the help of the provisions arranged under the Article 41 of the 'Consumer Protection Law'. You can always contact our office in order to get detailed information and legal support from our experienced and competent lawyers in this and many other areas.
Unal§Partners Legal Team
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