Lawsuit for Sale Permission and Guardianship in Turkish Law

LAWSUIT FOR SALE PERMISSION AND GUARDIANSHIP

The lawsuit for sale permission refers to the process of obtaining permission from the guardianship authority. This lawsuit occurs in cases where there is a guardianship relationship. The property of the person under guardianship is generally managed by their guardian. In some cases, it may be necessary to sell these properties as part of the natural course of life. In this case, the guardian must obtain permission from the guardianship authority for the sale.

WHAT IS GUARDIANSHIP?

In our law, individuals are placed under guardianship either out of necessity or upon request by a court decision. A guardian is appointed for the person to be placed under guardianship, and this guardian, as a rule, manages the assets of the person under guardianship and protects their personal rights. You can also read our other article on ”guardianship (restriction)”.

Persons who can be placed under guardianship:

– Minors not under custody (under 18 years old)
– Those restricted due to mental weakness or mental illnesses that arise later
– Those who need constant assistance for their protection and care
– Those who pose a danger to the safety of others
– Those who receive a prison sentence of 1 year or more
– Those who voluntarily request to be placed under guardianship
– Those restricted due to wastefulness, alcoholism or drug addiction, and bad lifestyle
– Those who cause the risk of impoverishment of themselves or their families due to mismanagement

To issue a guardianship decision, an application is made to the Civil Court of Peace. The court of the place where the person to be placed under guardianship resides is also competent.

MANAGEMENT OF THE PROPERTY OF THE PERSON UNDER GUARDIANSHIP

The guardian must manage the property of the person under guardianship with care. In this context, they must keep a simple ledger and store valuable items. The guardian can perform some actions independently, but for some actions, they need to obtain permission from the relevant authority.

Some of the actions that require the guardian to obtain permission from the guardianship authority:

– Buying and selling of immovable properties, mortgaging them, and establishing another real right on them
– Buying, selling, transferring, and mortgaging movable or other rights and values outside the needs of ordinary management and operation
– Lending and borrowing
– Undertaking a bill of exchange
– Making lease agreements for products for one year or more and immovable properties for three years or more
– Engaging in an art or profession on behalf of the person under guardianship
– Filing a lawsuit, making a settlement, arbitration, and concordat on behalf of the person under guardianship
– Declaring insolvency
– Placing the person under guardianship in an educational, care, or health institution

SALE OF THE PROPERTY OF THE PERSON UNDER GUARDIANSHIP

The property of persons under guardianship can be sold by their guardian through a public auction. However, the guardian cannot decide this on their own. The guardian is obliged to obtain permission from the guardianship authority to sell the said property. It should be noted that the guardian cannot sell every property. The legislator has ruled that items that hold special value for the person under guardianship or their family cannot be sold unless there is a necessity.

MOVABLE PROPERTY

Movable properties that are not considered valuable according to the interest of the person under guardianship can be sold through a public auction. However, the permission of the guardianship authority is required in this regard. In some cases, the judge may decide that this property can be sold by negotiation instead of a public auction.

The said property can only be sold with the decision of the guardianship authority. The guardianship authority will also decide whether the sale will be by public auction or negotiation. Although the public auction method is generally foreseen, the negotiation method can be used exceptionally.

IMMOVABLE PROPERTY

Like movable properties, immovable properties can only be sold with the permission of the guardianship authority. This sale must be carried out for the benefit of the person under guardianship. For example, it must be necessary to sell the immovable property for the person’s education, healthcare expenses, or care. The property of the person under guardianship cannot be sold for the guardian’s personal needs. This process is carried out through a public auction. The guardianship authority assigns a person for this. The auction is held in the presence of the assigned person and the guardian. The auction result is approved by the guardianship authority. This approval decision is generally given within ten days from the auction date, and the sale is completed.

ACTIONS TAKEN WITHOUT PERMISSION

If the guardian performs certain actions that legally require the permission of the guardianship authority without obtaining this permission, some legal consequences will arise. As a rule, an action taken without permission is just like an action taken by the person under guardianship without anyone’s permission. In this context, the sale of property without permission will not generally create a debt for the person under guardianship. The third party will be bound by this action. The person under guardianship will return the rights and receivables they have gained.

LAWSUIT FOR SALE PERMISSION

We mentioned that the guardian must obtain permission from the guardianship authority to sell the movable and immovable properties. The guardian must present to the court which properties they want to sell and for what reason, along with evidence. The Civil Court of Peace will evaluate this request. The court will ensure that this sale is appropriate and that the sale process does not harm the person under guardianship. Therefore, you need to present your sale reason and evidence effectively. You can request legal information from our expert lawyers for detailed information.

If the court deems the sale appropriate based on the specifics of the case, it may permit the sale of the property entirely or partially. If partial permission is given, the property in question will be sold to the extent needed, while in case of complete permission, the entire property will be disposed of.

As a rule, the lawsuit should be filed in the Civil Court of Peace of the place where the person to be placed under guardianship resides. Otherwise, the legal process will be prolonged.

HOW IS A PUBLIC AUCTION CONDUCTED?

In the public auction conducted by the person appointed by the court and the guardian, the property is transferred and delivered to the highest bidder. However, this must first be approved by the court. Then the sale price must be deposited into a national bank within ten days from the auction date. Movable properties are generally delivered to the buyer after the full payment of the sale price. For the transfer of immovable properties to the buyer, a memorandum is written to the Land Registry Office by the court.

HOW IS A NEGOTIATION CONDUCTED?

The court may exceptionally permit the sale of the property by negotiation. If the court permits, it also determines how, under what conditions, and where the sale will be conducted. At least three interested parties are invited to the auction to be conducted by negotiation, and the sale is made to the highest bidder. The price must be deposited into a national bank within ten days.

For more detailed information on the subject, you can contact us.

EXAMPLES OF SALE PERMISSION LAWSUIT AND GUARDIANSHIP DECISIONS

“With the decision numbered 2020/289, a guardian was appointed, and since a guardianship annotation was processed on the immovable properties registered in the name of the defendant in the relevant guardianship file, the sale of the immovable properties registered in the name of the restricted person cannot be made without the permission of the guardianship authority pursuant to Article 462 of the Turkish Civil Code. Therefore, the requests to place an injunction on the immovable properties and vehicle of the restricted person are rejected, and regarding the request for an injunction on rental incomes, since the guardianship authority has made a decision in the guardianship file regarding the deposit of rental incomes into the restricted person’s account, the request to place an injunction on the account where the rental incomes are collected is rejected…”

(12th Civil Chamber 2022/419E. , 2022/454K.)

With the decision of restriction, the place of residence of the restricted person will now be where the deciding authority is located. The person under guardianship cannot change their place of residence without the permission of the guardianship authority. There is no permission from the guardianship authority regarding the change of the restricted person’s place of residence, and the restricted person is in prison as a convict. Article 22 of the Turkish Civil Code also states that the change of the convict’s prison does not change their place of residence. In this case, the dispute should be seen and concluded in the Civil Court of Peace of … .

(17th Civil Chamber 2010/8844 E. , 2010/7988 K.)

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