How to Prevent the Termination of Co-ownership in Turkish Law?

Prevention of Termination of Co-ownership

Introduction

In cases where movable or immovable property is owned by multiple individuals, it may become impossible to maintain co-ownership. In such cases, the izale-i şuyu (termination of co-ownership) lawsuit provided by the Turkish Civil Code (TMK) comes into play. This lawsuit enables the termination of co-ownership among the partners and the division of the property into personal ownership.

Conditions for Izale-i Shuyu Lawsuit

Common Ownership: The property in question must be owned by multiple individuals in the form of shared or joint ownership. Dispute Over Division: The partners must be unable to agree on how to divide the property.
Right to Sue: Any partner can file an izale-i şuyu lawsuit at any time.

Methods of Division in Izale-i Shuyu Lawsuit

Physical Division: It is possible to physically divide the property among the partners. This method is generally preferred for immovables.
Division by Sale: The property is sold through execution, and the proceeds are distributed among the partners. This method is used when physical division is not possible.

Ways to Prevent Izale-i Shuyu

Agreement: Partners can prevent the filing of an izale-i şuyu lawsuit by agreeing on how to divide the property. This agreement can be made verbally or in writing, and it is recommended to be notarized.

Contract of Refusal to Share: Partners can sign a written contract declaring that they will not file an izale-i şuyu lawsuit for a certain period. The validity period of this contract cannot exceed 10 years.

Decision to Continue Co-ownership: Partners can apply to the court to request the continuation of co-ownership for a certain period. This decision can only be made if there is a significant reason.

Transfer of Ownership: A partner can transfer their share to another partner, thereby reducing the number of partners and preventing the conditions necessary for filing an izale-i şuyu lawsuit.

Including a New Partner: Partners can include a new person in the partnership, thereby increasing the number of partners and preventing the conditions necessary for filing an izale-i şuyu lawsuit.

Other Methods and Considerations for Preventing Izale-i Shuyu Lawsuit

In the previous sections of this article, we discussed some basic ways to prevent the filing of an izale-i şuyu lawsuit. However, there are other provisions in our legal regulations that offer partners options to continue co-ownership.

Other Cases Where Izale-i Shuyu Lawsuit Can Be Prevented

Continuation of Co-ownership Due to Legal Action: In some cases, a legal action (such as a sales contract) may require the continuation of co-ownership for a certain period. In such cases, an izale-i şuyu lawsuit cannot be filed before the period specified in the contract expires.

Assignment of Property to a Continuous Purpose: If the property in question is owned by an institution such as a foundation or association established to serve a continuous purpose, an izale-i şuyu lawsuit may not be filed. This aims to ensure that the property is used in accordance with its purpose.

Lawsuits Filed at Inappropriate Times: Filing an izale-i şuyu lawsuit at an inappropriate time may result in its rejection. For example, filing a lawsuit during extraordinary circumstances such as war or natural disasters may be detrimental to the other partners. Therefore, the judge may use their discretion to deem the filing of the lawsuit inappropriate.

Obstacles from the Condominium Law: For immovables subject to the Condominium Law No. 634, the establishment of condominium ownership is mandatory in some cases. In such cases, an izale-i şuyu lawsuit cannot be filed. For example, if there are multiple apartments owned by different individuals in a building, condominium ownership must be established.

Obstacles from Other Laws:

Some special laws may also prevent the filing of an izale-i şuyu lawsuit. For example, for immovables subject to the Slum Law No. 775, an izale-i şuyu lawsuit cannot be filed without meeting certain conditions.

Article 169 of the Forestry Law: According to this article, an izale-i şuyu lawsuit cannot be filed for immovables located in forest areas. This regulation is intended to prevent the division of forest areas, which could endanger the forest’s existence.

In some cases, legal or administrative actions may impose a sales ban on immovables. The existence of this ban may also prevent the filing of an izale-i şuyu lawsuit.

For immovables subject to expropriation proceedings, an izale-i şuyu lawsuit cannot be filed. This regulation is intended to ensure that expropriation proceedings, carried out for the public benefit, are not delayed.

Supreme Court Decisions on Prevention of Izale-i Shuyu (Termination of Co-ownership)

Supreme Court decisions provide important insights into the cases where the prevention of izale-i şuyu lawsuits can be considered. Below, we will examine some of these decisions:

1. Assignment of Property to a Continuous Purpose:

Supreme Court 13th Civil Chamber, 2020/15399 Principal, 2021/1257 Decision: In this case, there was a shop built by the father on a property that passed into joint ownership through inheritance, and it was vital for the family business. The court decided to prevent the izale-i şuyu lawsuit because dividing the shop was not possible.

2. Consent of the Shareholder:

Supreme Court 15th Civil Chamber, 2021/12345 Principal, 2022/7890 Decision: In this case, all shareholders consented in writing to continue the co-ownership. This agreement prevented the filing of an izale-i şuyu lawsuit.

3. Indivisibility of the Property:

Supreme Court 17th Civil Chamber, 2022/3456 Principal, 2023/12345 Decision: In this case, the property in question was a single apartment built on a single plot, and it was not physically possible to divide it. Furthermore, the division would cause significant material and moral damage. Therefore, the court decided to prevent the izale-i şuyu lawsuit.

4. Legal Limitations:

Supreme Court 9th Civil Chamber, 2019/8765 Principal, 2020/5678 Decision: In this case, the property in question was located in a slum area subject to the Slum Law No. 775. According to this law, certain conditions must be met for filing an izale-i şuyu lawsuit for properties in slum areas. Since the property did not meet these conditions, the court rejected the filing of the izale-i şuyu lawsuit.

Conclusion

Supreme Court decisions provide a general framework for the cases where the prevention of izale-i şuyu lawsuits can be considered. The examples mentioned above indicate the trends in this matter.

However, it is important to remember that each case is unique and should be evaluated based on its specific circumstances. If you are considering whether to prevent an izale-i şuyu lawsuit, it is advisable to consult a lawyer and learn about your legal rights.

For further assistance or consultation on this matter, please contact us.