The Notary Public Law numbered 1512 has been amended by the amending law numbered 7413 which was published in the Official Gazette dated 28 June 2022 and numbered 31880 (the "Amending Law") to enter into force on 1 July 2023. Within the scope of the Amending Law, Turkish notaries have been authorised for the execution of real estate sales transaction.
Accordingly, the principles and procedures of such transactions have been regulated through a secondary legislation captioned, the Regulation on the Procedures and Principles applicable on the Real Estate Sales Agreements conducted by the Notaries which has been published in the Official Gazette dated 11 January 2023 numbered 32070 and entered into force on the same date (the "Regulation"). However, the Regulation will be applicable as of the date the establishment of the information system to be announced on the official website of the Ministry of Justice. As of date of this Monthly Updates such announcement has not been made yet.
This Monthly Updates aims to briefly explain the provisions of the Amending Law related to the real estate sale transactions to be conducted by the notaries and the Regulation and highlight the novelties introduced therein.
Powers Granted to Turkish Notaries
Pursuant to the Amending Law, execution of real estate sales agreements has been added to the duties of the notaries, in addition to the execution of option agreements for the sale of real estates (gayrimenkul satış vaadi sözleşmesi). With the Amending Law, real estate sales agreements can be executed before notaries as well as the land registry offices the latter being the sole authority up until now.
Applications
According to the Regulation, applications regarding real estate sales agreements shall be only made through e-appointment application of the Notary Union of Türkiye (the "Union") via using the e-government portal. The following documents shall be uploaded to the Turkish Notaries Union System (the "TNBBS") and the originals of such documents shall be submitted by the parties to the notary on the appointment date:
- identity;
- notification address;
- contact information of the parties;
- real estate tax value of the related real estate;
- sale price determined between parties; and
- Turkish Lira amount equivalent of the foreign currency stated in purchase certificate in transactions where foreign real persons are the buying party.
Additionally, during the application, the parties shall also choose the notary public's office before which the sales transaction is conducted.
Process of the Real Estate Sales
According to the Regulation, notaries shall issue an application form upon a real estate sales application considering all the restrictions on the real estate and observing the limitations, procedures and principles on other laws related to the real estate in question.
Then, a copy of the land register and the other documents shall be shared by the General Directorate of Land Registry and Cadastre with the notary executing the transaction through Land Registry and Cadastre Information System ("TAKBIS").
The real estate sales agreement shall be prepared once all the documents regarding the real estate are compiled and the right holder is determined. The notaries shall also check whether there is any obstacle for sale. Upon clarification, the notary public shall use the sample agreement prepared by the Union and registered in TNBBS.
The notary public shall notify the parties with a text message about process including the payment method, the date and time of the appointment for the execution of the agreement. As soon as the sales agreement is signed by the parties, the notary public shall register the agreement on the TAKBIS.
Furthermore, once the real estate agreement is registered on the TAKBIS, the land registry office shall register the real estate in the land registry. Therefore, although the procedure is made by the notary public, the notary public is not authorized to change the registrations in the land registry. The real estate sales agreement and other documents shall be transferred to the TNBBS by the notary public and are physically archived. Lastly, once the registry process is completed, the public notary shall give a copy of title deed to the buying party. However, the notary public will not be able to realize the sales if the right holder cannot be identified from the land register copy or the other documents or if there is a legal obstacle for the sale.
Fees and Expenses
According to the Regulation, title deed fees shall be collected by the notary public. However, real estate sales agreement prepared by the notary public shall be free of any stamp duty and other documents. On the other hand, notaries charge an additional the notary fee when the transaction is completed through them.
Pursuant to the Regulation, the notary fee cannot be less than TL 5oo and cannot be more than TL 4,000 depending on the value of the real estate. These fees shall be subject to annual adjustment to be effective from the beginning of the calendar year.
Liabilities of Notaries on the Real Estate Sales
With the Amending Law, the liabilities of notaries for the execution of real estate sales agreement have been regulated. Accordingly, notaries shall also be liable for damages related to the preparation of real estate sales agreement as the Directorate of Land Registry is. Moreover, in case any damages are indemnified by the State, the State shall recourse to the notary public which has prepared the agreement.
Conclusion
By the Amending Law, the real estate sales become easier for the parties to the transactions as there will be no requirement to realize the sale only before the relevant land registry where the property is located, and the parties will have quiet number of choices as there are quite number of notaries throughout the country. This will speed up and simplify the process.
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.