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Real Estate Sales Agreements: What Has Changed After The Significant Amendments In The Law No. 1512 On Public Notary? – Real Estate



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  1. Introduction

A real estate sales agreement is an agreement that is executed
by and between the buyer and seller for the acquisition of real
estate and is regulated under the Turkish Code of Obligations No.
6098 (“Law No. 6098”). By executing
the real estate sales agreement, the seller promises to transfer
the real estate and the buyer promises to pay the sale price of the
real estate. Pursuant to the Article 237 of Law No. 6098, real
estate sales agreements are subject to the official form
requirement. In order to fulfill this requirement, the real estate
sales agreements used to be only executed before the land
registrars since Article 26 of Land Registry Law No. 2644
(“Law No. 2644”) specifically
authorizes land registrars to execute the real estate sales
agreements.

Law No. 7413 on the Amendments to the Law on Judges and Public
Prosecutors and Certain Laws (“Amendment
Law
”) published in Official Gazette dated 28 June
2022 and numbered 31880, introduces important amendments to Law No.
1512 on Public Notary (“Law No. 1512”)
and authorizes public notaries to execute real estate sales
agreements. Before the amendment, the authority of public notaries
to execute real estate sales agreements used to be an issue of
conflict since there was no specific regulation authorizing the
public notaries for the execution of the real estate sales
agreements. Moreover, different chambers of the Court of Cassation
had different judgments with regard to the authority of public
notaries for the execution of real estate sales agreements. The
Amendment Law ended the conflict on whether public notaries are
authorized to execute real estate sales agreements. 

  1. General Conditions of Real Estate Sale Agreements
    before the Amendment

As explained above, before the Amendment Law, there was a
conflict on whether the public notaries are authorized to execute
real estate sales agreements. Even though the public notaries used
not to be authorized to execution of real estate sales agreements
in accordance with Law No. 1512, they were authorized to execute
real estate presales agreements.

In order to fulfill the official form requirement that is
indicated in Article 237 of Law No. 6098, the buyer and the seller
used to execute the agreement before the land registry because Law
No. 2644 has a specific regulation authorizing the land registrars
to execute real estate sales agreements. On the other hand, the
authority of public notaries for the execution of real estate sales
agreements used to be an issue of conflict. Since Law No. 1512 had
not authorized the public notaries to execute real estate sales
agreements, there used to be an opinion indicating that only land
registrars were authorized for execution.

  1. General Conditions of Real Estate Sale Agreements after
    the Amendment

As we explained above, real estate sales agreements are subject
to the official form requirement. With the amendments made to the
Article 60 of the Law No. 1512, the duties of the public notaries
have been revised and the public notaries have been authorized to
the execution of real estate sales agreements in addition to the
execution of preliminary agreements for the real estate sales.
Pursuant to the amended Article 60 of Law No. 1512, the real estate
sales agreements can be executed before the notary publics as well
as the land registry offices.

Once the application for the sale of real estate is made by the
parties, the public notary will issue an application document. The
General Directorate of Land Registry and Cadaster will share the
title deed record and other relevant documents with the public
notary via the land registry information system. The public notary
will review and examine whether the submitted documents are
complete. If the submitted documents are not complete, the public
notary will request the missing records and documents from the
relevant land registry office through the land registry information
system. The land registry office will provide the requested records
and documents to the public notary. Also, the public notary will
also determine the identity of the right holder, and whether there
is a legal situation preventing sale of the real estate. If the
public notary determines that there is no legal obstacle preventing
the sale of the real estate, the public notary will prepare the
real estate sales agreement for execution. Following the execution
of the real estate sales agreement by the parties, the public
notary will submit the real estate sales agreement and relevant
documents to the land registry information system for registration
and will archive them physically. Once the real estate sales
agreement is recorded to the land registry information system, it
will be registered to the respective land registry by the land
registry office.

In addition to the above, according to the amendment made to
Article 162 of Law No. 1512, public notaries are also held
responsible for the damages arising from the preparation of the
real estate sales agreements.

In accordance with the Law No. 1512, the real estate sales
agreements executed by the public notaries will be exempted from
stamp tax and the papers issued for these transactions will also be
exempted from valuable paper fee. For the real estate sales
agreement to be executed by the public notaries, only the title
deed fee will be charged in line with the subparagraph (a) of
paragraph (20) of the section titled “I-Title deed
transactions” of the tariff numbered (4) attached to the Law
on Fees numbered 492. In addition to the title deed fee, the notary
fee shown in the fee schedule, as long as it is not less than TRY
500 and not more than TRY 4,000 depending on the value of the real
estate and the service fee to be registered as revenue to the
Revolving Fund Management of General Directorate of Land Registry
and Cadaster will be charged as a result of sale of the real estate
by the public notary.

The Ministry of Justice will regulate the details of this
practice by a communique to be issued. Pursuant to Article 14 of
the Amendment Law, the regulation authorizing public notaries to
execute real estate sales agreements will enter into force when the
completion of the installation of the land registry information
system is announced on the Ministry of Justice’s website until
1 January 2023.

  1. Conclusion

The regulation authorizing public notaries to execute real
estate sales agreements aims to end the long-debated issue on
whether the public notaries are authorized to execute real estate
sales agreements and conclude transactions of sale of real estate
in an easier and faster manner by authorizing the public notaries.
The details of this practice will be determined by the Ministry of
Justice once the Ministry of Treasury and Finance and Ministry of
Environment, Urbanization and Climate Change provide their opinion
on this matter.

The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.

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