While property right is set forth in the Second Part of the constitution regulating the fundamental rights and freedoms, the limitations imposed on those rights and freedoms are regulated in general by the article 13 of the Constitution. The status of foreign citizens in this regard is regulated by a separate provision. Accordingly, we see that the fundamental rights and freedoms of foreign citizens are limited by the various laws in accordance with international law. Consequently, the rights of the foreign citizens on immovable properties must be evaluated taking into consideration the entire relevant legislation.
1. A) CAPACITY OF THE INHERITOR OF FOREIGN CITIZENSHIP TO ACQUIRE OWNERSHIP TO IMMOVABLE PROPERTY AND HIS CAPACITY TO INHERIT
The regulations of the Turkish law on the acquisition of ownership to immovable property by foreign citizens through inheritance are generally parallel to the acquisition of ownership to immovable property through the transactions made between the living persons. If there is any element of foreignness concerning the relevant process with regard to an incident of death, the provisions of International Private and Civil Procedure Law (IPCPL) must be applied concerning that process pursuant to the article 1 of IPCPL. Pursuant to the article 20 of IPCPL the inheritance is subjected to the national law of the deceased person. Consequently, if the deceased person is a foreign citizen, the inheritance shall be subjected to his/her national law. However, there is an exception to this rule which is related to the immovable property located in Turkey. Pursuant to the article 20, Paragraph 1 c. 2, Turkish law shall apply for the inherited properties located in Turkey. The cases which are excluded from the scope of the applicable law are specified by the article 20 Paragraph 2 of IPCPL. Accordingly, the provisions concerning the reasons for opening, acquisition and partition of the inheritance is subjected to the law of the country where the court of probate is located. In that case the institution of inheritance specified in the paragraph 1 for which the national law of the deceased person shall apply and in addition to that, for which Turkish law shall apply in respect of the immovable property located in Turkey is that part of the inheritance which is generally evaluated as inheritance rights and the transfer of inheritance outside the scope of the reasons for opening, acquisition and partition of the ’’inheritance’’. It is accepted that the capacity to inherit is under this scope.
The capacity to inherit has been regulated by the article 577 of the Turkish Civil Law under the heading of capacity to inherit, capacity to have rights. Pursuant to the article 577 of Turkish Civil Code everyone other than those who have no capacity to inherit may be the beneficiary of inheritance and will. Departing from that article it has been accepted that the capacity to inherit depends on three conditions. These conditions are to be alive at the moment of the death of the legator, having the capacity to inherit and non-existence of one of the reasons for disinheritance. In the Turkish law in general foreignness is, as a rule, not one of the factors removing the capacity to inherit. Beginning from the year 1934, the Land Registry Law has been the basic source regulating the inheritance rights of the foreign citizens on the immovable property. For that reason, the effect of foreignness on the capacity to inherit comes out by understanding the provisions of the Land Registry Law. According to the Turkish doctrine and the opinion underlying the decisions of the Court of Cassation the limitations set forth in the Land Registry Law are limitations imposed on the capacity to inherit.
A-1) ACQUISITION OF OWNERSHIP ON IMMOVABLE PROPERTY BY FOREIGN REAL PERSONS IN TURKEY THROUGH INHERITANCE
The limitations set forth in the Land Registry Law have been evaluated as limitations directed at the inheritance right and the criteria which shall serve as a basis for determining the countries whose citizens may acquire immovable property in Turkey were determined under the scope of the Article 35 of Land Registry Law No. 2644. As seen above, the law limits the amount of the immovable property that may be acquired through inheritance in two ways, namely as a percentage in terms of surface area across the district and in terms of amount across the country, thus authorizing the President to determine the countries whose citizens may acquire immovable property in Turkey through inheritance. Under this scope, according to the statement set forth in the law the President shall determine the countries the citizens of which may acquire immovable property in Turkey taking into consideration the bilateral relationships between Turkey and other countries and Turkey’s interests. In addition to this territorial limitation the acquisition of immovable property by the foreign citizens is also subject to a regional limitation. In deed the acquisition of immovable property by foreign real persons in Turkey requires obtaining the permission of the military authorities in advance pursuant to the Law on Military Zones and Security Zones No. 2565. If the relevant region is a Military prohibited military zone or security zone it is impossible for foreign citizens to acquire immovable property there.
The article 36, paragraph 6 of the Land Registry Law No. 2644 sets forth that the immovable property acquired by foreign real persons through inheritance contrary to the limitations set forth in the Paragraph 1 shall be liquidated by them within the period of time not exceeding one year as granted by the Ministry of Finance and that, if such liquidation does not take place within that period of time, the immovable property shall be liquidated and the proceeds obtained through that transaction shall be paid to the beneficiary. In this respect, the paragraph 6 of the article 36 of Land Registry Law guarantees that the persons, who do not meet the relevant conditions in this direction, are not indeed deprived of their legal inheritance rights or their rights arising from testamentary disposition even though they are not entitled to acquire the ownership to immovable property
As a result it may be accepted that the foreign citizens have the same status as the Turkish citizens in terms of the acquisition of ownership on immovable property through inheritance, that however this right has been limited by the Land Registry Law and other relevant legislation in conformity with the fundamental rights and freedoms of foreign citizens, the principle of equality and international law and consequently that it is fundamental for the foreign citizens to acquire the ownership on immovable property, but the limitation of that right is an exception.
A-2) ACQUISITION OF OWNERSHIP ON IMMOVABLE PROPERTY IN TURKEY BY FOREIGN LEGAL PERSONS THROUGH INHERITANCE
In Turkish law legal persons are eligible to all rights and obligations except limitations imposed by human specific factors including age, gender, and affinity, pursuant to the article 48 of Turkish Civil Code. Consequently, legal persons are eligible for the acquisition of immovable property through legal inheritance. However, they may acquire immovable property in Turkey through testamentary disposition.
Pursuant to the paragraph 2 of the article 35 of Land Registry Law, foreign legal persons are not allowed to acquire real estate of whatever nature in Turkey. However, if permitted by special laws, they may, as an exception, acquire real estate through inheritance within the possibilities granted and limits imposed by the provisions of the special law.
B) ACQUISITION OF THE IMMOVABLE PROPERTY IN TURKEY BELONGING TO THE FOREIGN LEGATOR AND CERTIFICATE OF INHERITANCE
With regard to the manner in which the immovable property belonging to the foreign citizen in Turkey shall be acquired after his/her death, Turkish Courts shall have sole jurisdiction regarding the immovable property pursuant to the provisions of the article 20 of International Private and Civil Procedure Law No. 5718. For that reason, even if the certificate of inheritance or will received from the foreign court and issued in a legally valid manner in terms of the national law of the deceased person shall nonetheless not be sufficient on its own for the transfer of the ownership of the relevant immovable property. For that reason, the necessity to apply to Turkish Courts in order to obtain a certificate of inheritance comprising, among others, the transfer of immovable property is also supported by the decisions of the Court of Cassation. The following steps must be followed for this purpose: obtaining the writs or vital records duly issued by the courts or civil registry offices of the respective foreign country of which they are the citizens, testifying the genetic tie between the legator and the persons who are claimed to be his spouse and children, applying to the Civil Court of the Peace to request the issuance of a certificate of inheritance and then completing the necessary procedures at the Land Registry Office and consequently take over the immovable property in Turkey belonging to the legator of foreign citizenship through inheritance.
For further information and inquiries please contact:
Berfin GÖLCÜK – [email protected]
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