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1- The immovable must be suitable for acquisition with the ordinary statute of limitations.

In order for the immovable to be acquired with the ordinary statute of limitations, the immovable must be registered in the title deed. It can be an immovable land registered in the title deed, or it can be an independent and permanent right registered on a page, and even a share of ownership in an immovable can be acquired with a gainful statute of limitations. However, in case of joint ownership, the partnership share will not be considered as a registered share in the land registry, so it cannot be earned with the statute of limitations. Only those that are suitable for acquiring private property from the immovables registered in the title deed can be acquired with the ordinary acquiring statute of limitations. For this reason, immovables in the nature of public property, places under the rule and disposition of the state, and immovables subject to private ownership that are not registered in the registry cannot be acquired with a gainful statute of limitations.

2-The registration in the land registry must be corrupt.

In order to acquire the ownership of an immovable with the ordinary statute of limitations, if the name of the person who will acquire the property is a legal person, the title of the immovable must be registered in the property column of the page of the immovable. If the registration does not show the true rights status, it is corrupt. In order for the registration to have its provisions and consequences, the written registration request of the person who has the power of disposition and a valid legal reason on which the request is based must be present. Despite the absence of one of these conditions, the registration made in the title deed is illegal registration.

According to Article 104 of the TMK, since the transfer of the sales contract depends on the reason, the disability in the sales contract due to legal reasons such as incompetence, violation of form, illegality or immorality or collusion will also affect the registration and invalidate it. In one of its decisions, the Court of Cassation accepted that in a case of fraud involving land registry officers and real estate agents, the fake record is null and void and does not even occur formally, and that the sale transaction made over the said record will not have any legal consequences, in this case, the provisions of TMK articles 102 and article 712 cannot be benefited from.

Registrations made on the basis of incorrect cadastral determination should also be considered as corrupt registrations. Corruption of the registration may also arise from the lack of power of disposition. Corrupt registration may occur from the beginning or may occur later.

If the disability that caused the illegal registration is corrected later or if a bona fide third party acquires the ownership of the real estate pursuant to Article 1023 of the TMK, the acquisition of ownership by the statute of limitations will be blocked.

3- Possession of the immovable to be acquired with the ordinary statute of limitations and this possession having certain qualifications                   

The possession must have been sustained for ten years without a lawsuit and in good faith. Since the act of winning does not qualify as a legal transaction, the existence of the capacity to act is not required, it is sufficient for the person to have the power to distinguish. The possession must be in the capacity of the owner. When determining whether the possession is in the capacity of the owner, the will and behavior of the possessor are taken into account. If the possessor shows the will of not recognizing the superior possession of another, it is considered to be a possessor with the title of owner.

It is not sufficient for the possessor to have actual control over the immovable to be acquired. The possessor must think that he is the owner of the immovable and act with the title and will of the owner. It is also possible for the possession to be indirect as the owner.

The ten-year period is not necessarily in the possession of the person who will acquire the property with the statute of limitations. Each possessor that meets the conditions to benefit from the statute of limitations will be able to add the possession period of the previous possessor, which has the same conditions, to its own duration.

The heirs of the legator, whose property right has been registered illegally and benefiting from TMK Article 712, will also be able to add the possession periods of the inheritors to their own possession periods after the registration is made in their own name. Minor successors immediately acquire the ownership of the immovable, but if they are malicious, they cannot benefit from the ordinary gainful statute of limitations, so the conditions for the extraordinary gainful statute of limitations are expected to be fulfilled.

4- Possession is non-litigious and uninterrupted

What is meant by the phrase “no action” is the fact that the real owner does not file or win a lawsuit against the owner, who appears to be the owner in the land registry, through corrupt registration. What is meant by the term uninterrupted is that the possessor must not lose his de facto dominance continuously during the entire ten-year period. If the authority and opportunities to maintain de facto dominance over the goods cease to exist, possession will also be lost. It is accepted as a rebuttable presumption that a person who has possession of the immovable at the beginning and end of the statute of limitations also has possession of the immovable during the intervening period. Regarding the termination of the statute of limitations, Article 154 of the TCO is applied by analogy. However, when one of the conditions sought in Article 712 of the TMK disappears, it is considered that the statute of limitations has expired.

5-Zilyedin has good intentions

The possessor, who will acquire the property with the gainful statute of limitations, must be in good faith. A person who does not show the care expected from him according to the characteristics of the situation will not be able to claim goodwill. The goodwill sought in TMK Article 712 is not knowing that the registration in the land registry is corrupt, with an excuse that can be excused despite the fact that the possessor has shown all the care expected of him. The possessor does not need to prove that he has good intentions. On the contrary, the person claiming that the possessor is malicious must prove this claim. Goodwill is sought during ten years of possession.

In the doctrine, it is claimed that if the heirs of the inheritor who had bad faith at the time of registration are in good faith, they can acquire the ownership of the immovable with the ordinary statute of limitations at the end of the ten-year possession period from the date of acquisition of the inheritance. The provision of .712 will not be utilized.

6-The provisions and consequences of the ordinary acquisitive statute of limitations:

With the fulfillment of the conditions listed in Article 712 of the TMK, the property is automatically acquired. No court order is required. While the person whose name is registered illegally acquires the property, the person who has owned the property but does not appear as the owner in the title deed loses its right of ownership. Ownership acquired by ordinary acquisitive statute of limitations cannot be contested.

It is accepted that the provisions of the ordinary acquisitive statute of limitations and the acquisition of ownership of the immovable are retroactive. Upon completion of the statute of limitations, the registration becomes effective as if it were a valid registration from the beginning.

Stj. Av. Elif Nur Akyol

TO CONTACT NOW 0 541 485 92 48

Özlem Zennup Özkök

Arb. Av. Özlem Zennup Özkök, 2010 yılında Bilkent Üniversitesi Hukuk Fakültesi’nden mezun olmuştur. Bursa Barosu’na kayıtlı avukat ve arabulucudur. Türkiye’nin önde gelen hukuk bürolarında edindiği şirketler hukuku ve birleşme-devralma deneyiminin ardından Bursa’da Özkök Hukuk Bürosu’nu kurmuştur. Aile hukuku, şirketler hukuku ve gayrimenkul uyuşmazlıkları alanlarında çalışmaktadır.

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