Partition Lawsuit in Turkey

In daily life, the distribution of movable or immovable property owned by multiple individuals can lead to disputes. In such cases, the “Lawsuit for the Termination of Partnership” (Izale-i Şuyu), regulated by Article 688 of the Turkish Civil Code, comes into play. This lawsuit aims to divide the joint property among the partners through physical division or sale.

<h2>What is Partnership?</h2>

A partnership is a situation where more than one person has joint ownership rights over a property. This property can be movable or immovable. Partnerships can arise through inheritance, sale, or founding agreements.

<h2>What Does Shared Ownership in the Land Registry Mean?</h2>

Shared ownership means that more than one person owns specific shares of an immovable property. These shares determine each partner’s rights and responsibilities over the property. Shares in shared ownership can be equal or vary in proportion.

<h2>What is Joint Ownership?</h2>

Joint ownership refers to the joint ownership of the entire property by more than one person. Examples of joint ownership include inheritance partnerships, ordinary partnerships, general property partnerships within a marriage union, and family property partnerships. In joint ownership, each partner’s share is not specific, and each partner has rights over the entire property.

<h2>Conversion to Shared Ownership</h2>

The conversion of joint ownership to shared ownership is possible under the conditions prescribed by law. In an inheritance partnership, upon the request of one of the heirs, the magistrate judge invites the other heirs to notify their objections within a specified period. If there is no situation requiring the continuation of joint ownership and none of the heirs have filed a lawsuit for division within this period, the judge decides to convert joint ownership into shared ownership.

<h2>I Do Not Want to Sell My Share in the Lawsuit for Termination of Partnership</h2>

In a lawsuit for the termination of partnership, if one of the partners does not want to sell their share, the first option is the physical division of the property. If physical division is not possible, a decision is made for sale by auction. If all partners agree, the auction is conducted only among the partners. If one of the partners does not agree to the auction being conducted only among the partners, the sale is open to everyone.

<h2>How to Sell Undivided Inheritance?</h2>

An undivided inheritance can be sold through a lawsuit for the termination of partnership if the heirs cannot agree on the distribution. In this lawsuit, the judge can first decide on the physical division and distribution of the property. However, if physical division is not possible and especially if it is not feasible to divide the property without significant loss in value, a decision is made for sale by auction. The proceeds from the sale are distributed among the heirs according to their inheritance shares.

<h2>What is the Right of Preemption?</h2>

The right of preemption is the right of other partners in shared ownership to buy the share of a partner selling their share to a third party. The right of preemption aims to keep the immovable properties in shared ownership together and protect the partners’ rights.

<h2>Auctions in the Lawsuit for Termination of Partnership</h2>

Auctions in the lawsuit for the termination of partnership are conducted according to the provisions of the Enforcement and Bankruptcy Law and are carried out by public auction.

<h2>How is a House Sold through Foreclosure?</h2>

The sale of a house through foreclosure is a process initiated upon the request of the creditor when the debtor cannot pay their debt. In this process, the value of the immovable property is determined, and then it is put up for sale by auction. The person who makes the highest bid at the auction buys the property.

<h2>Costs of the Lawsuit for Termination of Partnership</h2>

The costs of the lawsuit for the termination of partnership, including legal expenses and attorney fees, are distributed among the parties in proportion to their shares. If the lawsuit is accepted, both parties are responsible for the legal expenses according to their shares. If the lawsuit is dismissed, only the plaintiff is responsible for the legal expenses.

<h2>Ordinary Partnership</h2>

An ordinary partnership is a contract where two or more persons undertake to combine their labor and property to achieve a common goal. In an ordinary partnership, the partners do not have specific shares, and each partner has rights over all the property included in the partnership. An ordinary partnership is an example of joint ownership.

<h2>Methods Used in the Lawsuit for Termination of Partnership (Izale-i Şüyu)</h2>

In the process of terminating partnerships, two main methods are frequently used within the framework of the lawsuit for the termination of partnership: Termination of Partnership by Physical Division and Termination of Partnership by Sale. These methods represent the legal solutions that partners can prefer when sharing their assets. In the first method, the asset is divided and distributed among the parties; in the second method, the asset is sold, and the proceeds are shared.

<h2>Termination of Partnership by Physical Division</h2>

Termination of partnership by physical division means dividing and distributing the property among the parties in the lawsuit for the termination of partnership. This method is preferred when the partners do not want a sale and the property is suitable for division. According to Article 699 of the Turkish Civil Code No. 4721, it is possible to divide the property by a judge’s decision. However, before this decision, the court conducts an investigation and obtains an expert report. The report examines the suitability of the property for division, taking into account zoning regulations.

<h2>Conditions for Physical Division</h2>

When the termination of partnership is requested, one of the partners can apply, and the consent of all partners is not required. However, for the application to be accepted, the property must be divisible. This method cannot be used for living animals or properties not suitable for division. Also, the division should not result in a significant loss of value and should not be costly.

<h2>Termination of Partnership by Sale</h2>

When the property cannot be divided, or the parties prefer a sale, the sale method is used. In this case, the judge appoints a sales officer, and the sales procedures are carried out according to the relevant legal regulations. The sale of immovable property is usually conducted by auction. However, with the consent of all shareholders, the sale can be conducted only among the partners.

<h2>Lawsuit for Termination of Partnership in Inheritance</h2>

A lawsuit for the termination of partnership can be filed for the distribution of properties acquired through inheritance. Article 642 of the Turkish Civil Code grants the heirs the right to demand the distribution of the inheritance at any time.

<h2>Points to Consider</h2>

In lawsuits for the termination of partnership filed in inheritance partnerships, it should be noted whether the heirs are obliged to continue the partnership by contract or law. In such cases, instead of rejecting the lawsuit, a decision should be made according to Article 642 of the Turkish Civil Code.

<h2>How to Terminate Partnership Among Heirs?</h2>

The termination of partnership among heirs is regulated in Article 642 of the Turkish Civil Code. According to this article, the heirs can share the estate among themselves by agreement. If an agreement cannot be reached, any heir can demand the physical distribution of the estate or its distribution through sale.

<h2>Determining the Sales Price (Valuation)</h2> <h3>How is Valuation Done in the Lawsuit for Termination of Partnership?</h3>

The valuation is usually done by an expert committee. The expert committee visits the location of the immovable property, examines its features, location, comparables, and market value. Based on these examinations, the expert committee prepares a report and determines the property’s value.

<h3>Can the Valuation in the Lawsuit for Termination of Partnership Be Objected to?</h3>

Yes, if the valuation determined by the expert committee is considered too high or too low, the partners can object to this valuation. The objection is made by submitting a petition to the case file. The court evaluates the objection and, if necessary, may request a new report from the expert committee.

<h2>Sales Method</h2> <h3>Methods of Conducting the Sale</h3>

If it is decided to terminate the partnership through sale in the lawsuit for the termination of partnership, the court decides how the sale will be conducted. There are two main methods of sale:

<h3>Public Auction:</h3>

The property is sold to the highest bidder at a public auction over a specified base price.

<h3>How is the Public Auction Conducted in the Lawsuit for Termination of Partnership?</h3>

After the court’s decision to sell and the finalization of this decision, the file is sent to the sales office for the execution of the sales procedures. Additionally, a valuation is provided by the sales office. This valuation is notified to the parties, and they can object to the valuation if they find it inappropriate. The starting bid in the auction is half of the value finalized during this valuation process.

<h3>Negotiation Method:</h3>

The property is sold through negotiation over a specified base price. In the negotiation method, a commission appointed by the court negotiates with potential buyers and sellers and sells the property to the highest bidder.

<h3>Example and Results of Counterclaims</h3>

A shareholder may file a counterclaim objecting to the sale decision. In the counterclaim, the grounds for the objection should be clearly and precisely stated. The court evaluates the counterclaim and may either approve or annul the sale decision.

<h3>Preventing the Sale: Precautions</h3>

In some cases, the sale process can be prevented for various reasons. For example, a shareholder may prevent the sale by objecting to the court decision, or technical issues may arise during the sale process.

<h3>Legal Procedures to Prevent the Sale</h3>

If the sale is prevented, the necessary legal procedures for the sale to take place must be carried out. These procedures may include initiating enforcement proceedings to implement the court decision or taking necessary steps to restart the sale process.

<h3>Sales Price and the Situation of No Buyer</h3> <h3>Sales Price:</h3> <h3>Post-Sale Deposit: Deposit Location</h3>

After the sale process is completed, the sales price is deposited into a court escrow account. This account is a designated account determined by the court, accessible to all parties involved in the sale process.

<h3>Collection and Distribution of the Sales Price</h3>

The sales price, according to the court’s decision, is distributed among the partners in proportion to their shares. The partners can collect the sales price from the court escrow account.

<h3>Situation of No Buyer:</h3> <h3>No Buyer: Measures to Be Taken</h3>

In some cases, there may be a problem of not finding a buyer for the sale process. In this case, the court may take one or more of the following measures:

Resale: The court may decide to put the property up for resale by lowering the sales price or changing the sales conditions.

Revaluation: The court may decide to conduct a revaluation to check if the property’s value is up-to-date.

Negotiation Method Sale: The court may decide to sell the property through negotiation.

Continuation of Partnership: In exceptional cases, the court may decide to continue the partnership.

<h2>Case Process and Procedure</h2>

Certain conditions must be met to file a lawsuit for the termination of partnership. These conditions form the basis of the lawsuit and ensure the proper conduct of the case.

<h3>Reasons for Filing the Lawsuit:</h3>

A lawsuit for the termination of partnership is a legal process in which one of the partners, or several partners together, files a lawsuit in court to demand the distribution of a jointly owned movable or immovable property when they cannot agree on the distribution of the property.

<h3>Conditions and Documents for Filing the Lawsuit:</h3>

Certain conditions must be met to file the lawsuit. For example, a partner or several partners together can file the lawsuit regardless of whether the property is subject to shared or joint ownership. The petition for the lawsuit should include the reasons for filing the lawsuit, detailed information about the property in question, and the identity information of the partners. Additionally, documents showing the partnership over the property whose termination is requested must be attached to the case file.

<h3>Time Issue: Statute of Limitations and Expected Duration:</h3>

In general, the lawsuit for the termination of partnership is not subject to a statute of limitations. However, in some cases, due to legal requirements or the continuous dedication of the property to a specific purpose, the right to file the lawsuit may be limited to ten years.

Under these conditions, the case file must be prepared, and the lawsuit process must be initiated. In this process, it has also become mandatory to use mediation. If the lawsuit is filed without resorting to mediation, it may be dismissed for lack of procedural requirements. Therefore, it is important to use mediation before filing the lawsuit.

<h2>Authorized and Competent Court in the Lawsuit for Termination of Partnership</h2>

The court authorized to hear the lawsuit for the termination of partnership is the Magistrate’s Court. Additionally, the competent court for cases related to immovable property is the Magistrate’s Court in the location of the property. If multiple properties are involved, this lawsuit can be filed in the Magistrate’s Court in the location of the relevant properties.

<h2>Case Petition and Preparation, Filing the Lawsuit, and Evaluation, Value Determination</h2> <h3>Case Petition and Preparation:</h3> <h3>How to Prepare the Petition</h3>

In the petition for the lawsuit for the termination of partnership, the essential elements of the lawsuit should be clearly and explicitly stated. The information that must be included in the petition is as follows:

<h3>Plaintiff and Defendant Information:</h3>

The identity information, addresses, and contact information of both parties must be written completely.

<h3>Information About the Property in Question:</h3>

The type, nature, and if any, the plot and parcel number of the property should be detailed.

<h3>Claims in the Lawsuit:</h3>

The plaintiff should clearly state whether they want the partnership to be terminated by sale or by physical division.

<h3>Evidence:</h3>

All evidence supporting the lawsuit (e.g., inheritance certificate, title deed) should be attached to the petition.

<h3>Signature:</h3>

The petition must be signed by the plaintiff. If the lawsuit is filed through a lawyer, a power of attorney must also be attached to the petition.

<h3>Example and Preparation Process of the Petition</h3>

When preparing the petition for the lawsuit for the termination of partnership, the following steps can be followed:

<h3>Determining the Competent Court:</h3>

The lawsuit can be filed in the court in the location of the property or the court in the plaintiff’s place of residence.

<h3>Format of the Petition:</h3>

The case petition should be prepared in the format determined by the relevant judiciary. The petition format can be obtained from the judiciary’s website or from lawyers.

<h3>Gathering the Necessary Documents:</h3>

It is important to prepare the documents (e.g., inheritance certificate, title deed) that will document the information included in the case petition in advance.

<h3>Writing the Case Petition:</h3>

All necessary information should be written in the petition completely and accurately.

<h3>Signature and Submission of the Petition:</h3>

After the petition is signed by the plaintiff, it is submitted to the competent court.

<h3>Filing the Lawsuit and Evaluation:</h3> <h3>Duration of the Case: Expected Duration</h3>

The duration of the lawsuit for the termination of partnership depends on the complexity of the case, the time required for gathering evidence, and the workload of the court. On average, the case is expected to be concluded within 6 months to 1 year.

<h3>Estimated Duration of the Case and Extension Situations</h3>

The duration of the case may be extended if additional procedures such as expert examination or investigation are required. Additionally, requests for extensions by the plaintiff or defendant may also cause the case to be prolonged.

<h3>Reasons for Rejection:</h3>

The reasons for rejecting the lawsuit for the termination of partnership may include:

<h3>Deficiency in the Case Petition:</h3>

If the necessary information is missing or incorrect in the petition, the lawsuit may be rejected.

<h3>Filing the Case in an Incompetent Court:</h3>

If the lawsuit is filed in an incompetent court, it may be rejected.

<h3>Lack of Legal Grounds:</h3>

If there is no legal reason requiring the termination of the partnership, the lawsuit may be rejected.

<h3>Reasons for Rejection and Objections</h3>

If the lawsuit is rejected, the plaintiff can appeal the decision within 15 days from the notification of the decision. In the objection petition, it should be explained on what grounds the rejection decision was based and why these grounds are incorrect.

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