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Acquisitive prescription allows a person to acquire the ownership of the goods in their possession if certain conditions occur at the end of a certain period of time. Acquisition by prescription refers to the acquisition of rights based on possession that has continued for a certain period of time and has not been objected to. According to the Turkish Civil Code, ownership of both movables and immovables can be acquired by acquisitive prescription. When a person acquires ownership by acquisitive prescription, the person who was the rightful owner until then also loses his/her rights. In terms of immovables, acquisition of ownership by both ordinary and extraordinary acquisitive prescription is regulated.
In order for the ownership of movables to be acquired by acquisitive prescription, a person must have possessed another person’s movable property without lawsuit and without interruption for five years in good faith and as the owner.
The reason for acquisitive prescription is to prevent the possessor from protracting this situation and to prevent the possessor from being insecure and to bring a conclusion to this situation.
The acquisition of the right of ownership by a person who is shown as the owner in the land registry but has the right of ownership by fulfilling the conditions required by the law and passing the expected period is called ordinary prescription, while the acquisition of ownership in cases where neither the possessor nor the owner is registered in the land registry is called extraordinary prescription.
Acquisition of Immovable Property by Ordinary Acquisitive Prescription
TCC Article 712- If a person who is recorded as the owner in the land registry without a valid legal reason continues his possession of the immovable property for ten years without a lawsuit and without interruption and in good faith, the right of ownership acquired in this way cannot be objected to.
According to Article 1022/f.1 of the Turkish Civil Code, registration in the land registry is a condition for the acquisition of immovable property. Unless a registration is made, the right of ownership cannot be acquired. In order for the registration to give rise to the right of ownership, it must be based on an existing valid and binding legal reason. If there is a registration made without being based on an existing and valid registration, there will be an illegal registration and the person in whose name the registration was made will not be able to acquire the right of ownership. The real right owner has the right to file a lawsuit for the correction of the registration in accordance with Article 1025 of the Turkish Civil Code. If this real right owner does not file this lawsuit against the person in whose favor the illegal registration was made within a certain period of time, the illegal registration becomes legal. The owner can only file this lawsuit until the person in whose name the illegal registration was made acquires the ownership of the real estate under the conditions stipulated in the law. However, if the conditions specified in the law are not met, the right of ownership will not expire no matter how long it has not been used.
1-The real estate must be suitable for acquisition by ordinary prescription: In order for the real estate to be acquired by ordinary prescription, it must be registered in the land registry. The real estate registered in the land registry can be a land or an independent and continuous right registered on a page, and even the ownership share in a real estate can be acquired through acquisitive prescription. However, in the case of joint ownership, the partnership share will not be considered a share registered in the land registry, so it cannot be acquired through prescription. Among the real estate registered in the land registry, only those that are suitable for acquiring private ownership can be acquired through ordinary acquisitive prescription. Therefore, real estates that are public property and places under the jurisdiction and control of the state and real estates subject to private ownership that are not registered in the registry cannot be acquired through acquisitive prescription.
2-The registration in the land registry must be without error.
In order for the ownership of a real estate to be acquired through ordinary prescription, the name of the person who will acquire the ownership, if he is a legal person, and his title must be registered without error in the property column of the page belonging to the real estate. If the registration does not show the real right status, it is without error. In order for the registration to have its effect and consequences, the person with the authority to dispose must have a written request for registration and a valid legal reason on which the request is based. A registration made to the land registry office despite the absence of one of these conditions is an irregular registration.
According to the provision of Article 104 of the TMK, since the transfer of the sales contract is dependent on the reason, any legal reason such as incompetence, irregularity in form, illegality or immorality or collusion in the sales contract will also affect the registration and render it invalid. In one of its decisions, the Court of Cassation accepted that in a forgery case involving land registry officers and real estate agents, the false registration is null and void and that it does not even occur in form and that the sale transaction made through the said record will not have any legal consequences and that in this case, the provisions of Article 102 and Article 712 of the TMK cannot be used.
Registrations made based on incorrect cadastral findings should also be considered irregular registrations. The irregularity of the registration is the authority to dispose
