Partition Action (İzale-i Şüyu), Mandatory Mediation and Court Proceedings

(The information in this article also applies to foreign nationals who own real estate in Türkiye.)

A field inherited from a relative, a flat you bought jointly with your sibling, or a plot of land registered in shares with your spouse… One of the most common legal problems in Türkiye is that the parties simply cannot agree over a property owned by more than one person.

Perhaps you want to sell and the other co-owner does not. Perhaps everyone says "let me take my share", but no agreement can be reached on how to divide it. In this article we explain in plain language how disputes arising from co-ownership are resolved, the mandatory mediation introduced in recent years, and the questions most frequently asked in practice.

What Exactly Does "Partition" (Ortaklığın Giderilmesi) Mean?

In legal terminology it is also known as izale-i şüyu. It refers to ending the state of "co-ownership" in which more than one person holds rights over a property. In other words, it is the process by which the joint ownership is dissolved and each person separately receives what falls to their share.

There are two basic types of co-ownership:

• Ownership in shares (paylı mülkiyet): Where specific shares such as "1/2 share" or "1/4 share" are recorded on the title deed (for example, a flat you bought jointly with your sibling).
• Joint ownership (elbirliği mülkiyeti, i.e. co-ownership among heirs): Where, following a person's death, all the heirs own the property together without their shares being separated (for example, a plot of land left by your father that has not yet been divided).

In short: If you want the property to be sold, divided or shared in some way but cannot settle this among yourselves with the other co-owners, the concept that comes into play is "partition" (ortaklığın giderilmesi).

I Cannot Agree with the Other Co-owners. Can I File a Lawsuit Straight Away?

This is where the most surprising recent change lies: since 1 September 2023, you cannot file a lawsuit directly in partition disputes.

With the statutory amendment (Law No. 7445), disputes concerning the division of movable and immovable property and the partition of co-owned property have been brought within the scope of "mediation as a precondition to filing suit". This means that you must apply to a mediator before going to court.

If you skip this step and apply directly to the court, the court will not examine the merits of your case; it will dismiss it on procedural grounds for "lack of a procedural precondition". In other words, your file will be turned away at the outset without its content being examined.

Practical warning: If no agreement is reached in mediation, you must attach the "final report" issued by the mediator to your statement of claim. A lawsuit filed without this report will also be dismissed.

What Can I Agree On in Mediation?

Mediation is an amicable method in which the parties meet with the assistance of a specialist and produce their own solution. When a partition is at issue, the following options are usually on the table:

1. Division in kind (physical division)
If the property can actually be divided, it is shared so that each co-owner receives a specific part, and each becomes the sole owner of their own part. However, legal limits such as zoning legislation and minimum size rules for agricultural land may prevent this kind of division.

2. Division by sale
The parties may agree that the property will be sold and the proceeds divided in proportion to their shares. This sale may take place by public auction or by negotiation (sale to a specific person at a specific price).

An important nuance: According to a decision of a Regional Court of Appeal, a sale "by court auction" cannot be decided in mediation; only the court can order this. However, the parties may agree among themselves on a public auction or a sale to a specific person. Since the courts hold differing views on this matter, we recommend that you always assess with a lawyer whether the method you choose is suitable for your particular situation.

We Reached Agreement in Mediation. Will This Agreement Document Work at the Land Registry?

This is the critical point. The parties reach agreement and sign an "agreement document". However, where real estate is concerned, this document alone is not sufficient to carry out a transaction at the land registry.

For this document to be valid and enforceable, it is mandatory to obtain an "annotation of enforceability" (icra edilebilirlik şerhi) from the civil court of peace. This annotation is a document by which the court confirms that "this agreement is suitable for mediation and enforceable".

At this stage the court examines the content of the agreement, whether it is suitable for mediation and enforcement, and whether the statutory restrictions concerning the property have been complied with. This review was introduced so that none of the parties suffers a loss of rights.

Good news: Under the new provision (Law No. 7531), once the annotation of enforceability has been obtained, one of the parties may apply directly to the land registry office and request registration. The land registry can carry out the transaction without drawing up a separate official deed. This has made the process considerably easier.

From Which Court Should I Obtain the Annotation of Enforceability?

In partition disputes concerning real estate, the civil court of peace where the property is located has jurisdiction and competence. This is a mandatory jurisdiction rule; you cannot apply to a court in another place.

Where there is more than one property, there are views that an application may be made to the court of the place where any one of the properties is located. For this reason, if properties in more than one province are involved, it is important to obtain professional support in order to determine the correct place of application.

This is one of the issues causing the most concern in practice and, to be honest, it is also the most controversial point legally.

Particularly in division in kind, it is possible for one party to refuse to give the declaration required for registration at the land registry. In this case, enforcing the agreement document directly may not always work smoothly, because requesting registration is an act in the nature of a "declaration of intent", and compelling its performance poses particular difficulties under Turkish law.

Our recommendation: When the agreement document is being prepared, it is very important to set out how and when each obligation is to be performed in the finest detail, clearly and leaving no room for doubt. A well-prepared agreement document prevents most future problems from the outset.

We Could Not Agree in Mediation. How Does the Court Process Work?

Mediation does not always end in agreement; particularly where there are many parties (for example, dozens of heirs) or the parties cannot be reached, the process often ends in "no agreement". At this point the mediator issues a "final report of no agreement" and the way to court is opened.

The lawsuit is filed at the civil court of peace where the property is located, and the final report of no agreement must be attached to the statement of claim. An important feature of the lawsuit is this: in a partition action there is no winning or losing party; everyone is in the position of both claimant and defendant, because the outcome affects all co-owners in the same way.

The court process usually goes through the following steps:

• Joinder of parties: Everyone who holds a share on the title deed (in joint ownership, all the heirs) must be included in the case. The merits of the case cannot be decided with a party missing. If a co-owner dies during the proceedings, their heirs join the case.
• On-site inspection and expert examination: Through a court-appointed expert, the court examines whether the property can be divided in kind (physically), whether there would be a loss of value, and its zoning status.
• Decision: The court first considers the possibility of division in kind. If division in kind is not possible or would cause a serious loss of value, it orders that the property be sold and the proceeds divided in proportion to the shares (partition by sale).

If the Court Orders the Sale of the Property, How Is It Sold?

Since in practice properties often cannot be physically divided in a fair manner, partition is most frequently achieved by sale. This sale is not an ordinary property sale; it proceeds under the supervision of the court, following the steps laid down by law:

• Sales officer: After the court decision becomes final, a sales officer is appointed to conduct the sale. The sale is carried out by public auction in accordance with the provisions of the Enforcement and Bankruptcy Law.
• Valuation: The current value of the property is determined by a court-appointed expert, and this value becomes final.
• Announcement: The sale is announced, stating its date, place and time. For high-value properties, it is important that the announcement reaches a wide audience so that the property is sold at its true value.
• Public auction: As a rule, anyone can take part in the auction; if they wish, the co-owners themselves may also bid and purchase the whole property. The parties may also agree that the auction be held only among the co-owners.
• Distribution of the proceeds: The money obtained from the sale is deposited into an account; first the sale expenses and any encumbrances such as mortgages or attachments are deducted, and the remaining amount is distributed to the co-owners in proportion to their shares on the title deed.

Mind the deadline: There is a 10-year period (as accepted in practice) from the date the partition decision becomes final within which to request the sale. If the sale is not requested within this period, the decision may lose its effect and the process may have to start again.

This is where the most practical difference between mediation and litigation becomes clear: in mediation, the parties can agree on a sale to a specific person at a specific price and prevent a family heirloom from going to "an outside buyer". In a court sale, however, the property goes to the highest bidder at the auction. In other words, being able to reach agreement is often more advantageous both financially and emotionally.

I Am a Foreign National with Property in Türkiye. Do These Rules Apply to Me Too?

The short answer is yes. The rules on partition and mandatory mediation apply in exactly the same way to foreign nationals who are co-owners of a property in Türkiye.

The legal basis for this is clear: the Mediation Law applies to private law disputes over which the parties can freely dispose, "including those involving a foreign element". The division of ownership of real estate also falls within this scope. Therefore, even if one or all of the parties are foreign, the obligation to apply to mediation before filing a lawsuit concerning a property in Türkiye does not fall away.

Moreover, in cases concerning real estate in Türkiye, the Turkish court of the place where the property is located has mandatory jurisdiction. So it makes no difference whether you live in Germany, the United Kingdom or the Gulf countries; for a plot of land or a flat in Türkiye, the process takes place in Türkiye under Turkish law. Although the national law of the deceased may apply to the substance of the inheritance in certain inheritance matters (Article 20 of the Turkish Code on Private International and Procedural Law (MÖHUK)), matters concerning rights in rem over the property and the title deed are subject to Turkish law.

Practical Consequences for Foreign Clients

• Even if you cannot be physically present in Türkiye, you can conduct the mediation and the lawsuit through a lawyer in Türkiye. However, your lawyer's power of attorney must include a special authority to settle in mediation, enter into agreements and transfer real estate. For powers of attorney issued abroad to be valid in Türkiye, additional formalities such as notarial/consular certification and an apostille may be required.
• Partition by sale is the most practical solution for most foreign clients: the property is sold, the amount corresponding to your share is transferred to your account, and you do not have to deal with the issue of registering the property to a foreign national at all. When transferring the proceeds abroad, you must comply with foreign exchange and tax legislation.

Our note: Since a significant proportion of our clients live abroad or are foreign nationals, we are experienced in managing these processes remotely, by power of attorney and without a language barrier.

Quick Answers: Other Questions You May Have

Can I take part in mediation without a lawyer?
Yes, you can; however, real estate law is a technical and unforgiving field. Many legal restrictions, such as zoning, agricultural land, inheritance and condominium ownership, affect the validity of the agreement document. A poorly structured agreement may prevent you from obtaining the annotation from the court or lead to a loss of rights in the future.

Is the agreement valid if one of the heirs does not take part in the process?
No. Both in ownership in shares and in co-ownership among heirs, division requires the unanimous agreement of all co-owners/heirs. An agreement made without everyone's participation is not valid.

Does a mediation agreement automatically make me the owner of the property?
No. As a rule, ownership of real estate can only be acquired by registration at the land registry. An agreement document bearing an annotation of enforceability is a document on which registration can be based; but ownership does not change hands until the registration has been carried out.

I live abroad. Can I conduct the process without coming to Türkiye?
Yes. Both mediation and the lawsuit can be conducted through a duly authorised lawyer. Your power of attorney must contain special authority for mediation, settlement and transfer of real estate and, if issued abroad, must bear the proper certification/apostille.

With the changes in mandatory mediation and land registry practice in recent years, the partition process has both become easier and acquired new technical subtleties. Taking the right steps in the right order prevents the loss of both time and money.

To request a consultation: You can contact our firm for an assessment specific to your situation. Every case is unique; this article is for general information purposes only and does not constitute legal advice.

This article has been prepared for the information of our clients on the basis of current academic studies and court decisions on partition, the annotation of enforceability in mediation and the limits of the right to demand partition.