Construction Contract In Return For Flat In Turkey
CONSTRUCTION CONTRACT IN RETURN FOR FLAT
With the increase in the need for housing as a result of the rapid population growth, the Construction Contract for Flat, also known as the construction contract for the land share, has started to take place in Turkish Law. Construction contracts in return for flat are a type of contract that can be annotated to the land registry. Although this type of contract is not regulated in our laws, it has taken place in accordance with the principle of freedom of contract. We often come across this type of contract in daily life. This contract is also known as construction contract in return for land share and construction contract in return for real estate sales promise. In the construction contract in return for flat, the contractor (contractor) undertakes to construct separate independent sections in return for a certain amount of ownership to be given on the land owner’s land. It usually takes place between the land owner and the contractors. The owner of the land keeps some parts of the land for himself and transfers the other parts to the contractor or third parties and has independent sections built on this land. He transfers the independent sections corresponding to this land share to himself, thanks to the ownership to the extent he has allocated for himself.
According to this contract, the owner of the land transfers a certain share of the land to the contractor. The contractor undertakes to construct a building on this land and give a part of this building to the land owner. By making this contract, the land owner is obliged to transfer a certain percentage of his land to the contractor, while the contractor is under the obligation to carry out the construction. Therefore, when this contract is made, both parties will be indebted.
THE ELEMENTS OF CONSTRUCTION CONTRACT IN RETURN FOR FLAT
1.Agreement between land owner and contractor
2.The land need to be suitable for the construction of independent sections in the agreed amount
3.The land owner and the contractor must have the capacity to act, they must be competent to make a contract
HOW ARE THE CONSTRUCTION CONTRACTS IN RETURN FOR FLAT?
There are no legally prescribed form requirements for construction contracts in return for flat. Despite this, according to the provisions in the Turkish Notary Law and the Turkish Land Registry Law, real estate sales and promises should be made officially as a rule. For this reason, if you want to make a construction contract in return for flat, you must prepare this contract in accordance with the official form. Construction contracts in return for flat, which are not formally concluded, will be invalid. Based on an invalid contract, the parties cannot demand any performance from each other. However, if the parties have performed the elements of the contract voluntarily, they cannot later claim that this contract is invalid. Especially in practice, one of the parties prevents the valid execution of this contract by committing fraudulent behavior and gains benefit from it. Since this situation constitutes an abuse of right, it will not be protected legally and the contract will be valid as if it were valid.
WHAT ARE THE OBLIGATIONS OF THE LAND OWNER?
The land owner must deliver the land without any fault. In order for the contractor to start the construction, the land owner must deliver the land in question without any defects. There should not be any zoning barriers on the land and there should be no property rights belonging to third parties. The presence of tenants in the building can also be given as an example of a faulty situation. In case of defective goods, the contractor can avoid this responsibility by notifying the land owner.
The land owner must transfer the land share to the contractor. The land owner does not pay any fee in the construction contract in return for flat. Its responsibility to the contractor is to transfer the agreed land share to him.
WHAT ARE THE OBLIGATIONS OF THE CONTRACTOR
The contractor must complete the construction in question. The materials of this construction shall be fulfilled by the contractor unless otherwise agreed. The contractor should exercise due care in the selection of these materials. It should not produce artifacts below medium quality.
The contractor must carry out the construction with care. As a rule, the contractor should act in the interest of the land owner. It should be performed with loyalty and diligence, taking into account these interests.
The contractor must prepare the project in accordance with the zoning and obtain a license. The contractor must deliver the construction in question. The issue of under-performance is another problem that comes to the fore in daily life in terms of contracts in return for flat. In this case, it is possible that the parts that should be in the construction have never been made. Incomplete performance is not included in the liability arising from the defect. As a rule, the land owner is not obliged to accept the incomplete or incomplete work. However, in some cases, the Supreme Court has stated that this work should be accepted according to the nature of the deficiency in the work. The fact that this deficiency is tolerable is one of the criteria taken into account in this regard. We recommend that you seek legal advice for detailed information.
The contractor is under the obligation of guarantee against the defect.
If the construction does not meet the expectations of the land owner or does not meet the qualifications agreed in the contract, the contractor’s liability arises for the defect . The use of products other than the agreed materials also raises this debt. In this context, the obligation of inspection and notification must be fulfilled by the land owner. The defect must be reported to the contractor.
PENAL CONDITION IN CONSTRUCTION CONTRACTS IN RETURN FOR FLAT
Penal clause functions to guarantee the performance of the debt in Turkish Law. A penal clause is included in the construction contract in return for flat and if this penal clause is fulfilled, the injured party gains the right to receive the price determined as a penal clause. The fault of the other party does not matter. In practice, penal clauses are determined especially in case of not completing the construction on time between the parties. In this case, the penal clause must be paid without the need to prove anything. It should be noted that the existence of the penal clause depends on the validity of the original contract. If the construction contract in return for flat is an invalid contract, then the right to receive the agreed penal clause does not arise.
LUMP COMPENSATION IN CONSTRUCTION CONTRACTS FOR FLAT IN TURKISH LAW
In the event that the construction is not completed or is not built as agreed, the contractor may be requested to compensate the land owner for the damage suffered. A certain amount of compensation is awarded to compensate for this damage. Lump sum compensation is independent of the penal clause. With this compensation, the parties agree and determine a certain amount in advance as compensation for possible damages. As a rule, the lump sum compensation agreement is made before the damage occurs and is not dependent on any form. Lump-sum compensation usually comes into question in cases of late delivery.
TRANSFER OF CONSTRUCTION CONTRACT FOR FLAT IN TURKISH LAW
It is legally possible to transfer the construction contract in return for flat to others in practice. By transferring this contract to the new contractor, the contractor transfers all the rights and obligations he has against the land owner to the new contractor. However, the consent of the land owner is required for this transaction. It is a legal requirement that the land owner approves this issue before or afterward. However, the transfer must be done formally.
TERMINATION OF CONSTRUCTION CONTRACT FOR FLAT
Termination of the construction contract in return for flat is also legally possible. As a rule, the termination process terminates the debt relationship between the parties in a forward-looking manner. However, the rights and obligations that existed before the termination will remain in existence. In order to exercise the right of termination, a notice of termination must first be made. The level of completion of the construction is of great importance in this regard. The land owner can terminate the contract by paying all the damages and expenses of the contractor. This termination process does not have to be based on a just cause. This issue is also called termination in return for compensation in the doctrine. In addition, there is the fact of just termination. In this context, if the parties do not fulfill their obligations to each other, the contract may be terminated. This termination can also be made by agreement of the parties. The parties can cancel the debt by making a release between them. Otherwise, a court decision is needed.
ADAPTATION OF CONSTRUCTION CONTRACT FOR FLAT
After the parties make the construction contract in return for flat, unforeseen situations may arise in the ordinary course of life and this may make it difficult for the parties to fulfill their debts. In practice, especially the changing economic conditions show this point quite clearly. If the unexpected changes that occur after the conclusion of the contract make this contract intolerable, the aggrieved party may demand the adaptation of the contract. If an extraordinary situation that did not exist at the time of the conclusion of the contract arises due to reasons not originating from the debtor and changes the demand for performance to his detriment in a way that goes against the rules of good faith, the adaptation of the contract to the new conditions may be requested. However, for this, the victim must have either never fulfilled his debt or performed it by preserving his rights arising from excessive difficulty in performance. In practice, it is generally observed that contractors want adaptation due to economic problems and natural disasters that have occurred in the region.
CONSTRUCTION CONTRACTS AND REGISTRATION FORCING CASE FOR FLOOR
If the parties do not fulfill their obligations to each other on time and as required, legal responsibilities will arise. As a rule, the contractor or land owner who violates his debt will default to the debtor and will provide some optional rights to the other party. One of these rights is not to force registration. The contractor may force the landlord to transfer the ownership with a lawsuit, also known as a conscription to the registration, or the land owner may demand the transfer of the independent sections allocated to him on the completed construction by the contractor, with a lawsuit to force registration.
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