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December 21, 2023

Immovable Property Pledge in Turkish Law: Inception, Registration, and Termination

Introduction

The place and importance of the immovable property pledge in Turkish law draw attention as an indispensable element of economic relations. The immovable pledge is a type of security that enables creditors to establish a judgment on the immovable property owned by the debtor to guarantee their receivables and facilitate their collection. In this article, we will discuss the subject under main headings such as the inception, registration, and termination of the right of immovable property pledge under the Turkish Land Registry Law.

I. Inception of the Right of Immovable Property Pledge

The right of immovable property pledge is employed as a significant tool in Turkish law to regulate the financial relationships between creditors and debtors and secure debts. The immovable property pledge entails the establishment of a lien right on the immovable property owned by the debtor as security for the creditor’s receivable.

The inception process of the right of immovable property pledge occurs through mutual agreement and intent between the parties. This agreement is concluded through a contract, and it is completed when the debtor pledges the immovable property to the creditor. The parties are free to establish the lien right and execute this action through their will.

The inception of the right of immovable property pledge relies on the request of the creditor and the consent of the debtor. The debtor pledges the immovable property to secure and provide assurance for the creditor’s debt. Consequently, the creditor’s receivable is recognized as a legally acknowledged right on the immovable property.

An essential characteristic of the right of immovable property pledge is that the debtor retains ownership rights. In other words, the pledge of the immovable property does not affect the debtor’s ownership over the property. The debtor can still exercise their ownership rights on the pledged immovable property, while the lien right on the property remains as a priority security for the collection of the creditor’s debt.

For the valid and legal recognition of the right of immovable property pledge, it is crucial that the pledge agreement between the parties be in written form. The notarization of the agreement and the identification of the parties ensure the validity of the pledge transaction. Furthermore, the registration of the pledge agreement in the land registry is necessary. An unregistered immovable property pledge may not be effective against third parties and could jeopardize the creditor’s rights.

In conclusion, the inception of the right of immovable property pledge occurs as a transaction based on the will of the creditor and the debtor. During this process, the debtor pledges the immovable property with the consent of the creditor, and the right of immovable property pledge is established. The written agreement between the parties and the registration process in the land registry ensure the effective and legal utilization of the right of immovable property pledge.

II. Registration of the Right of Immovable Property Pledge

The registration of the right of immovable property pledge is a crucial step that ensures the legal security of the pledge transaction and its effectiveness against third parties. In Turkish law, for the immovable property pledge to be valid and protected, the pledge agreement must be registered in the land registry.

The registration process enables the right of immovable property pledge to be asserted against third parties. An unregistered immovable property pledge carries the risk of other creditors obtaining priority and the creditor losing their rights. Therefore, the registration process in the land registry is of great significance in protecting the right of immovable property pledge and securing the creditor’s rights.

To initiate the registration process, the parties must apply to the land registry office with the pledge agreement and necessary documents. The pledge agreement should have been notarized, and it must contain the identification information of the parties. After examining the adequacy and completeness of the required documents, the land registry office records the right of immovable property pledge in the land registry.

With the registration process, the right of immovable property pledge is officially recorded in the land registry, and the creditor’s lien right is established on the relevant immovable property. In this case, if the immovable property is sold or transferred, the creditor retains their lien right and secures their receivables.

Furthermore, obtaining an official document from the land registry office serves as evidence of the registration of the right of immovable property pledge. This document can be used to prove the creditor’s lien right against third parties in case of a sale or transfer of the immovable property.

In conclusion, the registration of the right of immovable property pledge ensures its legal security and the protection of the creditor’s rights. The notarization and registration of the pledge agreement in the land registry are crucial for the effective and valid use of the right of immovable property pledge. This way, while creditors secure their receivables, debtors also have the opportunity to secure their debts without compromising their ownership rights.

III. Termination of the Right of Immovable Property Pledge

The termination of the right of immovable property pledge can occur under various circumstances and conditions. In this process, the following reasons can be effective:

  1. Complete Payment of Debt: When the debtor fully pays the debt, the right of immovable property pledge automatically terminates. The creditor no longer needs the lien right.
  2. Waiver by the Creditor: The creditor may waive their lien right, thereby terminating the right of immovable property pledge. This occurs through a clear declaration of intent by the creditor.
  3. Expiration of the Pledge Period: If the right of immovable property pledge is established for a specified period, it terminates upon the expiration of that period.
  4. Agreement Between the Parties: The parties may agree to terminate or modify the immovable property pledge contract, resulting in the termination or alteration of the lien right.
  5. Cancellation of the Pledge: If the registration process is erroneous or legal requirements are not met, the concerned party may apply to the land registry office to request the cancellation of the lien right.

These reasons lead to the termination of the right of immovable property pledge, and the creditor’s rights over the pledge come to an end. Consequently, the lien right on the immovable property is lifted, and the debtor fully regains their ownership rights. It is essential for the parties to be cautious and follow all legal processes accurately during the transaction to ensure the proper termination of the immovable property pledge.

Conclusion

The immovable property pledge is an important legal tool used in Turkish law for securing and collecting creditors’ debts. References to decisions of the Court of Cassation concerning the inception, registration, and termination of the right of immovable property pledge under the Turkish Land Registry Law are crucial in understanding real-life scenarios and ensuring the effective use of the right of immovable property pledge. Likewise, during the preparation of immovable property pledge agreements, parties must exercise caution and seek expert legal advice.

The immovable property pledge provides assurance for creditors’ debts while safeguarding the debtor’s ownership rights. This process is realized through the registration of the pledge in the land registry, ensuring legal security against third parties. The decisions of the Court of Cassation serve as a guide for correctly conducting immovable property pledge transactions and using the right effectively.

However, the termination of the right of immovable property pledge is possible under various circumstances. The complete repayment of the debt by the debtor, the creditor’s waiver of the lien right, the expiration of the pledge period, or an agreement between the parties are some of the reasons that can lead to the termination of the right of immovable property pledge.

Therefore, parties must be cautious and diligent during the preparation of immovable property pledge transactions. Seeking expert legal advice will assist in ensuring the proper execution of the process and the protection of rights. The immovable property pledge holds a significant place in Turkish law regarding the regulation of financial relationships and securing debts, and its proper use establishes a solid foundation for relationships between parties.

Best regards,

Kılınç Law & Consulting

Authors

Kılınç Hukuk ve Danışmanlık

Kılınç Hukuk ve Danışmanlık