The title deed (tapu) record of an immovable property is an official and strong document showing who holds rights over that property; however, this record may not always reflect the true legal situation. Where the record was created through fraud, through a transaction with a person lacking legal capacity, through a sham contract or through an administrative error, the legal remedy that comes into play is the action for cancellation of title and registration (tapu iptali ve tescil davası). This action seeks the cancellation of an incorrect or wrongful title deed record and the re-registration of the property in the name of the true right holder.
In a region such as Alanya, where real estate activity and interest from foreign investors are high, the accuracy of title deed records is of particular importance for both Turkish and foreign property owners. In this article we look at the cases in which an action for cancellation of title and registration may be brought, how the process generally works and the points to watch out for, focusing in detail on this specific type of action.
What Is an Action for Cancellation of Title and Registration?
In Turkish law, the land registry (tapu sicili) is a system designed to show rights over immovable property in a public and reliable way. Under the principle of reliance on the land register, the person shown in the register is, as a rule, accepted as the right holder. However, if the record was created contrary to the true legal situation, the true right holder may ask the court to correct it. The action concerning this claim is referred to in practice as an “action for cancellation of title and registration”.
As the name suggests, two elements are combined: the cancellation of the existing, incorrect or wrongful record and the re-registration of the property in the name of the true right holder. When the court upholds the claim, it usually both cancels the old record and orders the new registration in a single judgment; this is why the action is referred to not simply as an “action for cancellation” but as an “action for cancellation and registration”.
In Which Cases Can an Action for Cancellation of Title and Registration Be Brought?
In practice, the situations giving rise to an action for cancellation of title and registration are quite varied. The most common general categories are set out below; since every file has its own facts and evidential position, whether a particular property falls into one of these categories and whether bringing an action is appropriate should be assessed together with a lawyer.
Transfers Made Through Fraud (Deception)
Where a person causes another to transfer his or her property by deliberately misleading them or persuading them with untrue statements, this is treated as fraud. A seller knowingly giving false information about the nature, legal status or price of the property, or concealing an important fact, may constitute fraud capable of invalidating the transfer.
Lack of Capacity (Lack of Capacity of Discernment)
If the person carrying out the transfer at the land registry lacked capacity of discernment at the time of the transaction due to mental illness, mental weakness, age-related cognitive decline or a similar reason, the transfer may be regarded as legally invalid. In such cases, establishing the person’s state of health on the date of the transaction is of great importance and usually relies on medical records and expert examination.
Simulation (Sham Transaction) and Simulation by the Deceased (Muris Muvazaası)
Transfers that do not correspond to the parties’ true intentions and are made merely to create an apparent transaction fall within the scope of simulation (muvazaa). The most common type in practice is where a person, in order to deprive an heir of his or her inheritance rights, transfers a property to another heir or to a third party by presenting it as a sale although it was in fact a gift; this is called “simulation by the deceased” (muris muvazaası). In such cases, the aim is to show, through witness statements, payment records and other evidence, that the real purpose (a gift) does not match the apparent transaction (a sale).
Abuse of a Power of Attorney
It is common for a property owner to authorise an attorney-in-fact to carry out transactions on his or her behalf; acting through a power of attorney is especially widespread among property owners living abroad and foreign investors. However, if the attorney-in-fact exceeds the authority granted or transfers the property to himself or herself or to someone else contrary to the principal’s interests, the cancellation of that transfer may be sought. In such files, the scope of the power of attorney and whether the attorney-in-fact exceeded his or her authority lie at the centre of the case.
Transfers in Breach of a Family Home Annotation
The Turkish Civil Code (TMK) gives special protection to the home in which the spouses live together; for a disposition such as a sale or mortgage of this home, the consent of the other spouse is required regardless of which spouse it is registered to. A transfer made without this consent may be cancelled by the other spouse through court action. This protection becomes particularly important in attempts to hide assets before or during divorce proceedings.
Cadastral and Land Registry Errors
Administrative problems such as the boundaries, surface area or nature of the property having been determined incorrectly during cadastral work, technical measurement errors, registration in the wrong person’s name or duplicate records may also give rise to an action for cancellation of title and registration. In such actions, technical experts (survey engineers) usually become involved and the true boundaries of the property are determined by an on-site inspection.
How Does the Process of an Action for Cancellation of Title and Registration Work?
The course of an action for cancellation of title and registration may differ depending on the legal ground relied on and the nature of the property; nevertheless, the general outline of the process can be summarised as follows.
Competent Court and Jurisdiction
Actions for cancellation of title and registration are, as a rule, brought before the court of the place where the property is located; if the property is within the boundaries of Alanya, the case is heard by the local civil court of first instance (asliye hukuk mahkemesi). Since the competent court may vary depending on the legal ground on which the action is based (for example, claims based on inheritance, family law or general tort may be subject to different assessments), the question of subject-matter and territorial jurisdiction should be clearly determined before the action is filed.
The Importance of a Request for an Interim Injunction
Actions for cancellation of title and registration can take a long time and require expert examination. If, while the case is pending, the defendant sells the property to a third party or creates a right such as a mortgage over it, it may become practically difficult to recover the property even if you win the case. To prevent this risk, an interim injunction (ihtiyati tedbir) may be requested on the title deed record together with or before the action; the injunction prevents the property from being transferred or any new right from being created over it until the case is concluded.
Expert Examination and Gathering of Evidence
Depending on the nature of the case, the court may rely on a wide range of evidence such as medical records (in claims of lack of capacity), land registry and cadastral records, reports of mapping/technical experts, witness statements or financial records. Expert reports may become one of the decisive elements of the judgment, particularly in files involving cadastral errors or requiring valuation.
What Documents and Evidence Are Needed in the Action?
Although it varies according to the specific features of the file, the following documents and information are generally important when preparing an action for cancellation of title and registration:
- The current title deed record of the property and a copy of the title deed,
- The contract, power of attorney or other official documents on which the disputed transfer is based,
- Supporting evidence depending on the legal ground alleged (for example, medical records in a claim of lack of capacity, payment receipts or witness details in a claim of simulation),
- Correspondence between the parties (if any),
- In claims of cadastral error, the previous measurement and registration records of the property.
Gathering the documents completely and in an orderly manner helps both the proceedings to progress more smoothly and urgent requests such as an interim injunction to be assessed more quickly.
The Importance of Title Deed Security for Foreign Investors in Alanya
Alanya has for many years remained a real estate region attracting strong interest from foreign investors. This makes title deed security in property purchases even more critical for foreign investors than for local buyers, because foreign buyers often do not live permanently in Türkiye and therefore carry out transactions through an attorney-in-fact, are less familiar with local practice and the language, and have more limited means of researching the legal history of the property on their own before purchase.
For this reason, it is very important for foreign investors to have the title deed record of the property, any annotations and mortgages on it, its zoning status and, if any, past transfer transactions reviewed by a lawyer before purchase. Although such a preliminary review does not completely eliminate the risk of facing an action for cancellation of title and registration in the future, it ensures that known risks are identified and assessed at the purchase stage.
Cancellation of Title in Properties Passed On by Inheritance
The action for cancellation of title and registration frequently arises not only in sale transactions but also in properties passed on by inheritance. Simulation by the deceased is the most typical example; however, in other situations as well, such as where one of the heirs has the property registered in his or her own name or in the name of a third party without the consent or knowledge of the other heirs, the other heirs may bring an action for cancellation of title and registration. Readers who have lost a relative owning property in Türkiye and are looking for general information on the inheritance process may also read our article on the inheritance rights of foreigners in Türkiye; that article covers the general framework of the certificate of inheritance and the transfer of title at the land registry.
Conclusion
The action for cancellation of title and registration is an important legal remedy that brings an incorrect or wrongfully created title deed record into line with the true legal situation; however, it is a technical type of action requiring different evidence, time limits and strategies depending on the ground relied on. If you have doubts or a dispute concerning the title deed record of a property in Alanya, obtaining legal assistance at an early stage of the process is important both for preventing loss of rights and for ensuring that urgent requests such as an interim injunction are assessed in time.
Frequently Asked Questions
Who can bring an action for cancellation of title and registration?
This action may be brought by persons who claim that the title deed record is contrary to the true legal situation and who have a legal interest in the matter; such a person may be the true owner of the property, an heir, the principal under a power of attorney, or a spouse whose consent was not obtained, as in the case of a family home annotation. Who has the right to bring the action in a specific case should be assessed according to the legal ground relied on.
Is there a time limit for bringing an action for cancellation of title?
Depending on the legal ground relied on, a limitation period or a time limit for the exercise of a right (forfeiture period) may apply in some cases. Since these periods may vary according to legislation and the nature of the specific case, it is advisable to consult a lawyer as soon as possible to avoid losing any rights.
What happens if the property is sold while the case is pending?
Against this risk, an interim injunction may be requested on the title deed record together with the action. If an injunction is granted, the property cannot be transferred to third parties and no new right can be created over it until the case is concluded.
If I win an action for cancellation of title, can the costs be recovered from the other party?
The general rule on court costs and attorney’s fees is that the losing party bears these costs. However, since current fees and costs, and the extent to which they can be recovered from the other party, may vary according to the file and the legislation, a lawyer should be consulted for specific information on this matter.
Do actions based on cadastral error proceed in the same way as actions based on fraud or simulation?
No. As the legal ground relied on changes, the required evidence, the type of expert and the litigation strategy also change. In cadastral errors, a technical expert examination usually comes to the fore, whereas in claims of fraud or simulation, witness statements and financial records may be more decisive.
Can a property owner living abroad pursue this action without coming to Türkiye?
Yes. Even if the property owner is not in Türkiye, he or she can have the proceedings conducted by authorising a lawyer in Türkiye through an apostilled power of attorney. This is a method frequently used, especially by property owners living abroad and foreign investors.
This article has been prepared for general information purposes and does not constitute a legal opinion specific to any particular case. If there is a dispute concerning your title deed record, we recommend that you consult a lawyer for up-to-date information specific to your file.
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.