Can the Guardian Sell the Ward’s Real Estate Under Turkish Law?

Turkish Civil Code Article 413 stipulates that the guardian appointed for the ward has limited authority to manage and dispose of the ward’s assets, especially for significant decisions such as the sale of real estate, which are subject to legal regulations and the permission of the guardianship authorities. Here are the detailed procedures related to these processes:

Can the Guardian Sell the Ward’s Real Estate? Under What Conditions?

The guardian can sell the ward’s real estate, but only if it is in the ward’s best interest and in accordance with the instructions of the guardianship authorities. The sale is carried out by a person appointed by the guardianship authorities, and the auction is completed with their approval​​.

From Which Court is Permission Required for the Sale of Real Estate?

Permission for the sale of real estate must be obtained from the Civil Court of First Instance. Additionally, during this permission process, the court considers the characteristics of the real estate and the conditions of the sale​​.

What Documents are Required to Obtain a Sales Permit?

Generally, documents that determine the value of the real estate, the needs of the ward, and whether the sale is beneficial are required. These documents may include an appraisal report of the real estate, reports on the ward’s health and financial status, and a management plan prepared by the guardian​​.

What Does the Court Consider When Granting a Sales Permit?

The court evaluates the nature and value of the real estate, the current and future needs of the ward, and whether the sale is in the ward’s best interest. The court also checks the conditions of the sale and whether the sale announcements were made appropriately​​.

What Procedures are Followed After Obtaining a Sales Permit?

After obtaining a sales permit, the sale is usually conducted through a public auction under the supervision of the guardianship authorities. The auction is conducted in the presence of the guardian and the appointed official. The auction is finalized with the approval of the guardianship authorities, and the approval must be given within ten days from the auction date. The sale price must be paid by the buyer within ten days after the auction is approved​​.

How is the Sale Price Determined and Used?

The sale price is determined based on the market valuations and the value of the real estate determined by appraisal experts. The sale price is determined considering the auction conditions and market conditions and is deposited in a national bank designated by the guardianship authorities​​.

How Should the Proceeds from the Sale be Used for the Benefit of the Ward?

The proceeds from the sale should be used for the ward’s care, health needs, education, and other essential needs. The guardianship authorities may provide instructions on how these proceeds should be utilized to ensure the most beneficial use for the ward​​.

What Should the Guardian Pay Attention to During the Sale Process?

During the sale process, the guardian should pay attention to the following:

Continuously reviewing the suitability of the sale for the ward’s benefit,
Ensuring that the auction process is conducted fairly and transparently,
Ensuring that the buyers have sufficient financial capacity and will meet the auction conditions,
Ensuring timely reporting of the auction results to the guardianship authorities​​.

What Reports Must the Guardian Submit After the Sale Process?

After the sale process is completed, the guardian must submit an account report to the guardianship authorities, detailing the sale, the proceeds obtained, and how these proceeds will be used. This report is important to document the transparency of the process and its suitability for the ward’s benefit​​.

How are the Ward’s Rights Protected in the Event of a Sale of Real Estate?

The ward’s rights are protected by conducting the sale process under the supervision of the guardianship authorities and ensuring that every step is carried out in accordance with legal procedures. The sale process is organized to protect the ward’s interests and is closely monitored by the guardian and the guardianship authorities. The sale permit is granted only if it is determined that the sale is in the ward’s best interest, and the sale conditions are determined fairly​​.

Can the Ward Object to the Sale Decision?

Yes, the ward can object to the sale decision. Objections are made to the guardianship authorities, and the legal route is open if necessary. If the ward believes that the guardian’s decisions are against their interests, they can notify the guardianship authorities and file an objection​​.

What Can Be Done if the Sale Process Harms the Ward?

If the sale process harms the ward, the ward or other interested parties acting on their behalf can file a lawsuit for compensation. Additionally, an investigation may be initiated against the guardian, and if the guardian is found to be at fault, they may be removed from their position. If a sale is made contrary to the ward’s interests, a lawsuit can be filed for the annulment of the sale​​.

What Can the Ward Do if the Guardian Acts in Bad Faith?

If the guardian acts in bad faith and harms the ward’s interests, the ward or their relatives can apply to the guardianship authorities to report the situation and request an investigation against the guardian. Furthermore, legal actions can be initiated for the change of guardian or against the guardian​​.

Can a Lawsuit be Filed for the Annulment of the Sale in Favor of the Ward?

Yes, a lawsuit can be filed for the annulment of the sale in favor of the ward. If the sale process has been conducted in a manner detrimental to the ward’s interests or if there are irregularities, a lawsuit can be filed with the guardianship authorities or the relevant civil courts for the annulment of the sale. This lawsuit can be successful if it is determined that the sale was not in the ward’s best interests​​.

What Should Be Done if a Problem Arises During or After the Sale Process?

If any problem arises, the guardian should immediately report the situation to the guardianship authorities. Depending on the nature of the problem, legal remedies can be sought, or the guardianship authorities may provide instructions for resolution. If the problem arises from misconduct by the guardian, the guardian may be held legally responsible and removed from their position​​.

Can Alternative Methods (Renting, Mortgaging, etc.) Be Considered Instead of Selling the Real Estate?

Yes, alternative methods can be considered instead of selling the real estate. Other options that may be more suitable for the ward’s benefit include renting out the property, mortgaging it, or establishing other real rights. These decisions are also subject to the permission of the guardianship authorities and should be made with the ward’s interests in mind. Using the property to generate income can be a less definitive financial decision than a sale and provide continuous income for the ward​​.

How Are the Maintenance and Repair Costs of the Real Estate Covered?

The maintenance and repair costs of the real estate are covered by the ward’s assets. The guardian can obtain permission from the guardianship authorities for these expenses and must ensure proper budget use. Maintenance and repair costs are necessary to maintain and increase the value of the real estate and are evaluated within the framework of preserving the ward’s assets​​.

What Happens If There Are Tax Debts on the Ward’s Real Estate?

If there are tax debts on the ward’s real estate, these debts are also paid from the ward’s assets. The guardian is responsible for managing tax payments timely and accurately. The management of tax debts is evaluated within the scope of the financial transactions carried out by the guardian on behalf of the ward and is supervised by the guardianship authorities​​.

How is the Transfer of the Ward’s Real Estate Through Inheritance Handled?

In the event of the ward’s death, the real estate passes to the heirs according to the rules of inheritance law. The guardian may be responsible for managing the inheritance process, which also requires the supervision and approval of the guardianship authorities. Inheritance processes are carried out in accordance with the ward’s will or statutory inheritance provisions​​.

What Happens in the Case of Expropriation of the Ward’s Real Estate?

In the event of the expropriation of the ward’s real estate, the expropriation compensation must be managed in a manner that benefits the ward. The compensation can be used for the ward’s other needs or invested, subject to the approval of the guardianship authorities. The expropriation process is closely monitored by the guardian and the guardianship authorities, and necessary steps are taken to protect the ward’s legal rights​​.

What Do Court of Cassation Decisions Say About This Issue?

The decisions of the Court of Cassation emphasize that transactions involving the sale of real estate and guardianship must be conducted in a manner beneficial to the ward. The court evaluates whether the transactions carried out by the guardian are in the ward’s interest and may impose legal sanctions on the guardian for any misconduct or fault. Specifically, if the guardian mismanages the ward’s assets, the Court of Cassation may decide to remove the guardian​​.

For legal advice on the guardian’s sale of real estate, please contact us.