One of the most common problems in real estate law and in construction contracts in return for land share (arsa payı karşılığı inşaat sözleşmesi) is that consumers who buy a home from the contractor (developer) under an ordinary written contract are wronged at the title deed transfer stage. How consumers can protect their rights when the contractor unjustly or collusively transfers to third parties the independent unit it had assigned to the consumer is being shaped by court decisions.
The judgment of the 6th Civil Chamber of the Court of Cassation (Yargıtay) numbered 2025/2811 E., 2026/1813 K. and dated 30.04.2026 is a precedent concerning actions for cancellation of title deed and registration based on personal rights under construction contracts in return for land share, and the limits of third parties’ claims of good faith.
Summary of the Facts
The claimant consumer bought a flat from the contractor company in a building constructed under a construction contract in return for land share. The chronology in the file is as follows:
- 09.09.2013: The claimant opened a natural gas subscription for the independent unit in dispute.
- November 2013: The property was physically handed over to the claimant.
- December 2013: The claimant and his family moved into the home and registered their change of address.
- 17.12.2013: Construction servitude (kat irtifakı) was established on the property.
- 28.01.2014: Acting as attorney-in-fact, the contractor transferred at the land registry the flat it had assigned to the claimant to the defendant third party. On the same date, several flats in the same building were transferred to the same person.
- 02.05.2014: The claimant learned that the home had been sold to a third party.
The claimant filed an action for cancellation of title deed and registration, arguing that the fact that the transfers were made on the same date and far below the property’s real value, together with the close commercial relationship between the buyer and the contractor, created a presumption of collusion (muvazaa), and that the buyer knew on the transfer date that the claimant was living in the property and was acting in bad faith.
The court of first instance upheld the claim, the Regional Court of Appeal dismissed the appeals on the merits, and the 6th Civil Chamber of the Court of Cassation affirmed the judgment.
Key Legal Principles
1. Buying a Property That Is Actually Occupied Is Contrary to the Ordinary Course of Life
In their assessment, the courts relied on the facts that the consumer had moved into the property before the title deed transfer, had initiated official formalities such as the natural gas subscription and the change-of-address registration, and that the buyer had admitted in his police statement that the claimant was living in the property on the date of purchase.
Key sentence of the judgment: “Buying an independent unit in which third parties are living in the capacity of owners is contrary to the ordinary course of life.”
This finding shows that the buyer failed to fulfil the duty of enquiry expected of a prudent person and therefore cannot claim good faith.
2. A Third Party Acting in Bad Faith Is Not Protected
Under the Turkish Civil Code (TMK), the acquisitions of third parties who rely in good faith on an entry in the land register are, as a rule, protected. However, the claim of good faith is not heard from persons who have a commercial or organic link with the contractor, who know the actual situation of the property and who are party to a collusive transaction.
In the case at hand, the court assessed together the relationship between the parties arising from the power of attorney and the construction contract in return for land share, the fact that the transfers were made on the same day and for a low price, and the buyer’s knowledge of the actual use of the property, and held that the sale was intended to put the asset beyond reach; it ordered the cancellation of the title deed entry and registration in the name of the true right holder.
3. Attention to the Appeal Deadline Where a Lawyer Withdraws (Resigns)
The judgment also addressed an extremely important point of procedural law:
- Under Art. 81 of the Code of Civil Procedure (HMK), for the dismissal or resignation of a lawyer to have effect vis-à-vis the court and the opposing party, the declaration must be notified by petition or entered in the minutes.
- Under HMK Art. 82, the mandate of a resigning lawyer continues for two weeks from service of the resignation on the client (15 days under the Attorneys’ Act).
- Under HMK Art. 361/1, the time limit for an appeal to the Court of Cassation is two weeks from service. An appeal petition filed out of time is rejected under Art. 352/1-c by reference from HMK Art. 366.
As the Chamber emphasised, re-serving the judgment on the party in person or on a new lawyer after the lawyer’s withdrawal does not grant any additional right as regards the appeal deadline. In the case at hand, the judgment was served on the first lawyer on 30.06.2025, and since the appeal petition was submitted on 22.07.2025, it was rejected as out of time.
Legal Assessment and Conclusion
For consumers who buy property from a contractor under an ordinary written contract (promise to sell, assignment agreement, etc.), physically taking possession of the property and establishing a presumption of use is of great importance for legal protection. Dated official documents such as natural gas, electricity and water subscriptions and change-of-address registrations are strong evidence for proving the buyer’s bad faith in subsequent transfers.
When examining the position of third parties who claim to have acted in good faith at the land registry, the criteria of actual use, close commercial relations between the parties, the transfer price and the ordinary course of life are assessed together.
In actions for cancellation of title deed and registration arising from construction contracts in return for land share, in order to avoid any loss of rights and, in particular, not to miss procedural deadlines when there are changes in the lawyer’s mandate, it is advisable to seek professional legal advice from a lawyer.
Source
Court of Cassation 6th Civil Chamber, judgment 2025/2811 E., 2026/1813 K., dated 30.04.2026
Court of First Instance: Şanlıurfa 1st Consumer Court, 2015/873 E., 2021/826 K.
Appeal (istinaf): Gaziantep Regional Court of Appeal, 1st Civil Chamber, 2022/270 E., 2025/789 K.
Download the full text of the judgment as a PDF (in Turkish)
Legal Notice: This text has been prepared for general information purposes only and does not constitute legal advice. sophoshukuk.com makes no referral, guarantee or promise of outcome. Each case must be assessed on its own particular circumstances; for your specific dispute, please obtain professional advice from a lawyer.