Ownership of immovable property changes hands in dependence upon the registration in the land registry. That mechanism of security is built upon the assumption that the documents relied on as the basis of the transaction are genuine. When that assumption collapses — that is, when the transfer is effected by means of a forged power of attorney, a forged identity document or an imitated signature — a deep disconnection arises between the entry appearing in the registry and the legal reality.
In such a situation the course open to the true owner is to seek the annulment of the title deed record together with the re-entry of the immovable in their own name. For since a transaction resting on a forged document is devoid of a legally valid declaration of intention, the registration attached to it is treated as an unlawful registration and carries no power to transfer ownership.
In this briefing note we address the forms in which a forged document appears, the legal bases of the action, its parties, the regime of time limits, the problem of proof, and the consequences to which the judgment to be given will give rise.
The Action for Annulment of Title Deed and Registration Founded on a Forged Document
The type of action brought where the transfer of an immovable has been carried out with documents that do not correspond to the truth, and which seeks the deletion of the entry in the registry and the re-entry of the immovable in the name of the true holder of the right, is known in practice as an action for annulment of title deed and registration founded on a forged document.
In files of this kind the title deed transaction is treated as void from the outset, since no legally valid declaration of intention lies behind it. Registrations made in reliance on a forged document bear the character of an unlawful registration within the meaning of the Turkish Civil Code No. 4721.
The Concept of a Forged Document
A forged document is a document drawn up in a manner that does not correspond to the truth, or created unlawfully in the name of another. That characterisation extends to three separate manifestations: the document may have been fabricated from beginning to end; a document whose original is genuine may have been altered subsequently; or the document may have been prepared by persons who have no authority to draw it up.
Documents of that kind relied on as the basis of a title deed transaction bring down the legal foundation of the transaction and give rise to the consequence that the registration made is treated as invalid.
In Which Situations Is a Title Deed Transaction Treated as Invalid?
For a title deed transaction to be valid it must rest both on the true intention of the person carrying out the transaction and on lawful documents. Where a forged document is used, both of those conditions fail to be satisfied and the transaction is therefore invalid.
The principal manifestations giving rise to invalidity in practice are as follows: the imitation of the owner’s signature, the carrying out of the transaction with a forged identity document in place of the true owner, the effecting of a sale by means of a forged power of attorney, and the submission of documents contrary to the truth to the Land Registry Directorate.
The Legal Consequence of a Sale Made with a Forged Document
Sales resting on a forged document are void from the outset, since they are devoid of a valid declaration of intention. A transaction of that kind does not bring about a valid transfer of ownership.
In consequence, judgment may be given for the annulment of the title deed record together with the registration of the immovable in the name of the true holder of the right.
The Relationship Between the Criminal Dimension and the Civil Action
The use of a forged document may constitute the offence of forgery of official documents for the purposes of the Turkish Penal Code No. 5237. A single act accordingly produces separate consequences both in the field of criminal law and in that of private law.
The two processes are nonetheless independent of one another. That a criminal action has been brought does not block the way to an action for annulment of title deed. The civil judge makes their own assessment, drawing on the evidence in the investigation or prosecution file.
In Which Situations Does a Forged Document Come into Question?
Forgery in title deed transactions arises for the most part by way of the identity or the authority of representation of third parties being presented in a manner contrary to the truth. The entry that arises as a result of such transactions of sale or transfer, which rest on no true intention, is characterised as an unlawful registration.
The principal situations in which actions of this kind come into question in practice are addressed below.
A Sale Carried Out Using a Forged Power of Attorney
One of the most frequently encountered scenarios is the sale of the immovable to third parties by means of a forged power of attorney drawn up as though it belonged to the owner. The transfer is completed without the true owner’s knowledge or consent.
Transactions of sale established in that way are invalid in law; the registration made in dependence on the transaction may likewise be annulled.
A Transfer Effected with a Forged Identity Document
In some cases another person, using a forged identity document, carries out the title deed transaction in place of the true owner. The obtaining of identity particulars, or the use of persons holding similar identity particulars, is among the typical causes of disputes of this kind.
Since transactions carried out by that route cannot be treated as the act of the owner, they acquire no validity in law.
The Owner’s Signature Being Forged
The imitation of the owner’s signature on the documents used in the title deed transaction likewise falls within the scope of forgery. The genuineness of the signature is in files of this kind generally elucidated by examination by a court-appointed expert.
If it emerges that the signature does not belong to the owner, the sale is treated as invalid and the annulment of the entry may be ordered.
The Submission of Forged Documents to the Land Registry Directorate
The falsity of the documents relied on as the basis of the transaction likewise gives rise to invalidity. The submission of a forged certificate of inheritance, a civil registry record extract contrary to the truth, or a fabricated instrument of authority is assessed within that scope.
Since they are devoid of any legal foundation, registrations established in reliance on such documents bear the character of an unlawful registration.
A Transfer Made by a Person Without Power of Disposal
The sale of an immovable by a person who holds no power of disposal over it may likewise be addressed under this heading. By way of example, where a person whose relationship of agency has come to an end, or a person who was never authorised at all, transfers the immovable, the transaction is invalid.
The registration made as a result of such a transaction does not bring about a valid transfer of ownership in law.
Registration Founded on a Forged Court Judgment or Official Letter
Examples are also encountered in which a forged court judgment, fabricated enforcement documents or an official letter contrary to the truth are used in order to effect the transfer. Registrations resting on such documents, which are not valid in law, are likewise invalid.
In that eventuality judgment may be given for the deletion of the entry in the registry and the re-registration of the immovable in the name of the true owner.
The Legal Basis of the Action
Title deed transactions conducted by means of a forged document are treated as unlawful registrations, since they do not rest on a valid declaration of intention. The entries in question may accordingly be removed by judicial process at the instance of the true holder of the right.
The legal foundation of the action is constituted first and foremost by the provisions of the Turkish Civil Code No. 4721 and, alongside them, by the principle of reliance on the land registry together with the fundamental rules on the protection of the right of ownership.
Turkish Civil Code Art. 1025 on Unlawful Registration
Article 1025 of the Turkish Civil Code No. 4721 affords the holder of a right the opportunity to sue for the correction of the registry where a right in rem has been registered unlawfully:
Turkish Civil Code No. 4721 Art. 1025
"Where a right in rem has been registered unlawfully, or a registration has been unlawfully deleted or altered, the person whose right in rem is thereby impaired may sue for the correction of the land registry."
Title deed transactions established by means of a forged document also fall within the scope of that provision. Registrations created by way of an imitated signature, a forged identity document or a fabricated power of attorney may accordingly be removed by an action for annulment and registration brought by the true holder of the right.
The Principle of Reliance on the Land Registry and Its Limits
The principle of reliance on the land registry aims to protect persons acting in good faith who acquire a right in reliance on the entry in the registry. The principle is not, however, absolute, and it is not applied without limit in transactions resting on forgery.
Where the person taking over the immovable knows that the transaction rests on a forged document, or is in a position in which they could know of the position, they are not treated as acting in good faith; in that event the annulment of the entry becomes possible. Where, by contrast, the immovable has subsequently passed to a third party acting in good faith, that person’s ownership may be protected.
In that second eventuality the annulment of the title deed may not take place, and the claim of the true holder of the right is directed instead towards a claim for damages.
The Offence of Forgery of Official Documents and Its Link with Private Law
The use of a forged document is treated as an offence in the Turkish Penal Code No. 5237 as forgery of official documents. One and the same event therefore produces consequences in two separate branches of law.
Even so, the criminal proceedings and the action for annulment of title deed run independently of one another. The judgment of the criminal court does not bind the civil court; it may nonetheless be assessed as important evidence.
The Protection of the Right of Ownership
Ownership is among the fundamental rights secured by the Constitution and by statute. By reason of that guarantee the true owner may seek by judicial process the return of an immovable taken out of their hands by the use of a forged document.
The correction of entries created unlawfully and the protection of the ownership of the true holder of the right are among the fundamental purposes of the legal order.
The Parties to the Action
In these actions the accurate identification of the parties is important if the proceedings are to be conducted soundly. As a rule the capacity of claimant belongs to the true owner of the immovable or to their heirs, and the capacity of respondent to the person who took over the immovable by means of the forged document or to the person who subsequently became owner.
In files where the immovable has been transferred to more than one person or has changed hands repeatedly, establishing standing correctly may directly affect the outcome.
The Capacity of Claimant
The action may be brought by the persons whose right of ownership has been impaired by reason of the transaction carried out using a forged document.
Among the persons who may be claimants are the true owner of the immovable, their heirs should the owner die, the guardian or trustee as regards persons under guardianship or trusteeship, statutory representatives, and other interested persons who have a legal interest deserving of protection in the resolution of the dispute.
Where the owner has died, the action is conducted by the heirs; as regards persons under guardianship, the action must as a rule be pursued through the guardian or trustee.
The Persons Against Whom the Claim Is to Be Directed
The claim is as a rule directed against the person who took over the immovable in reliance on the forged document. If the immovable has subsequently been passed on to others, the claim must be directed against the last owner or against those holding a right over the immovable.
Within that framework the action may be brought against the person who took the first transfer, the person who used the forged document, owners and third parties who subsequently took over the immovable, and also those holding a right in rem over the immovable.
Situations Calling for Compulsory Joinder of Parties
In certain situations it is compulsory that the action be directed against several persons together. The immovable being the subject of co-ownership in shares, its having been transferred to more than one person, or a right in rem having been established over it may be given as examples of that situation.
In the situations enumerated the action must be brought against all those concerned; otherwise a judgment of dismissal on procedural grounds may be given.
Limitation and Time Limits
In actions for annulment of title deed and registration founded on a forged document, no statute of limitations or preclusive period applies as a rule. The reason for that is that title deed transactions carried out with a forged document do not rest on a valid intention and are for that reason treated as unlawful registrations.
The Rule: The Absence of Any Time Limit
Since title deed transactions resting on a forged document are treated as invalid in law, no limitation period is prescribed for the annulment of the entry arising from those transactions. The true owner or their heirs may bring an action even if they learned of the forgery only after the passage of years.
That a long time has passed since the transaction, that the immovable has for years been in the use of the person who took it over, or that the holder of the right has not brought an action until now, does not on its own give rise to a dismissal.
The Effect of the Offence of Forgery on the Time Limits
The use of a forged document forms the subject of a criminal investigation in a great many cases and is examined within the framework of the provisions on forgery of official documents. The existence of an investigation, or of a criminal action already brought, constitutes no obstacle to the bringing of an action for annulment of title deed.
On the other hand, the records of statements, expert reports and similar evidence gathered during the investigation may constitute a powerful source for the purposes of the civil action. For that reason the criminal file most often directly affects the outcome of the action for annulment of title deed.
The Proceedings
Actions for annulment of title deed and registration founded on a forged document are heard within a particular procedural framework, since they arise out of rights in rem over immovable property.
The Courts with Subject-Matter and Territorial Jurisdiction
In these disputes subject-matter jurisdiction belongs to the Civil Court of First Instance.
As to territorial jurisdiction, the action must be brought before the court of the place where the immovable is situated. The jurisdiction in question is exclusive in character and cannot be altered by agreement of the parties. The place in which the file is to be opened is accordingly the Civil Court of First Instance of the place where the immovable is situated.
Application for an Interim Injunction
One of the most critical matters in these files is preventing the immovable in dispute from being passed on to third parties while the proceedings continue. It is for that reason of importance that an application for an interim injunction be raised in the statement of claim or in the course of the proceedings.
Where the claimant establishes the merits of their case on a prima facie basis, the court may order that an annotation prohibiting sale and transfer be entered on the land registry. That measure is an instrument of protection which prevents an action that has been won from remaining without effect in fact.
Proof and Evidence
The claimant is obliged to prove that the title deed transaction rested on a forged document. The real element determining the outcome is for that reason the quality and the sufficiency of the evidence submitted.
The principal evidence relied on in practice is as follows:
- Camera footage and other technical records
- The criminal investigation file and the evidence within it
- The statements of persons who witnessed the events
- The title deed transaction file and the official documents
- Signature and handwriting examinations
- Forensic medicine reports or the opinions of court-appointed experts
Assessing that evidence together, the court determines the falsity of the document and the legal validity of the transaction.
Court Fees and Litigation Costs
These actions are as a rule subject to an ad valorem court fee; when the action is brought, the fee calculated on the basis of the value of the immovable must be paid.
Throughout the proceedings items such as the fees of court-appointed experts, the outlays made for the on-site examination, costs relating to witnesses and the expenses of service may arise. As a rule these amounts are placed at the end of the action on the losing party.
Attorney Fees
At the end of the proceedings, an attorney fee recoverable from the opposing side is adjudged in favour of the successful party on the basis of the Minimum Attorney Fee Tariff. Since the action is subject to an ad valorem court fee, the fee too is calculated on a proportional basis.
Alongside that, the attorney fee arising out of the contract between the client and the lawyer may separately come into question.
Appellate Remedies
Recourse may be had to the appellate remedies against the judgments given. The judgment of the court of first instance may be taken to appeal within the period of 2 weeks running from its service.
The decision given at the end of the appeal may in turn be taken to appeal on points of law if it exceeds the monetary threshold prescribed by the statute.
The Outcomes of the Action
If the court establishes that the title deed transaction rested on a forged document, it decides that the transfer is invalid in law. Upon that finding the entry created unlawfully is deleted and the immovable is registered anew in the name of the true holder of the right.
The outcome of the action is not, however, always confined to the annulment of the entry. Where the immovable has passed to third parties and persons acting in good faith must be protected, it is also possible for damages to be awarded in place of annulment.
Annulment of the Title Deed Record
Once it is understood that the transfer rested on a forged document, the sale made is treated as invalid in law and the entry created upon that transaction is annulled.
With the deletion of the entry, the transfer of ownership that took place unlawfully is removed.
Registration in the Name of the True Owner
Where a judgment of annulment is given, the court orders the re-registration of the immovable in the name of the true holder of the right. The immovable thereby returns to the owner it had before the forged transaction was carried out.
If the true owner is no longer living, the registration is made in the name of the heirs and in proportion to their shares in the estate.
The Claim for Damages
In some files the annulment of the entry is not possible. Particularly where the immovable has passed to a third party who acted in good faith in reliance on the registry, a claim for damages in place of annulment comes into question.
In that event the true holder of the right may claim as damages the value of the immovable, the loss they have suffered and the loss arising from being deprived of its use.
Criminal Liability Coming into Question
The person who uses a forged document also commits, in most cases, the offence of forgery of official documents under the Turkish Penal Code No. 5237. Title deed transactions resting on forgery are for that reason not confined to the field of private law; they also produce consequences as regards criminal law.
In that eventuality the public prosecutor’s office may commence an investigation, a public prosecution may be brought against those responsible, and the court may impose a sentence of imprisonment or a judicial fine.
That a criminal action has been brought does not block the way to the action for annulment of title deed and registration; the two processes may be conducted independently of one another.
Related Topics
The other headings connected with the subject are as follows:
- The Action for Annulment of Title Deed and Registration on the Ground of Unlawful Registration
- The Action for Annulment of Title Deed and Registration on the Ground of Abuse of the Power of Agency
- The Action for Annulment of Title Deed and Registration Founded on a Fiduciary Transaction
- The Action for Annulment of Title Deed and Registration on the Ground of Lack of Capacity
- What Is an Action for Annulment of Title Deed and Registration? In Which Situations Is It Brought?
- The Offence of Forgery of Official Documents
The Independent Legal Assessment
In files of forgery the legal consequence is most often plain: where there is no valid intention, there is no transfer either. The real difficulty in practice arises not in the characterisation but in the proof and in the timing. The immovable changing hands in the time that passes until the falsity of the document is established by examination by a court-appointed expert may remove the proprietary consequence of the action altogether.
For that reason speed is, in an allegation of forgery, often more decisive than depth of evidence. In proceedings conducted without an annotation prohibiting transfer being entered on the title deed record, the judgment obtained frequently turns into no more than a claim for damages.
In devising a strategy in a particular file, the following headings should be addressed as a matter of priority:
- Seeking an interim injunction simultaneously with the statement of claim and having an annotation prohibiting transfer entered on the record
- Obtaining the title deed transaction file in full from the directorate and examining the whole of the underlying documentation
- Preparing from the outset documents suitable for comparison for the purposes of the signature and handwriting examination
- Following the criminal investigation running in parallel and bringing the reports produced there into the civil file
- Scanning the chain of transfers and assessing in advance the position of subsequent owners as regards good faith
- Raising the claim for damages in the alternative against the possibility that the proprietary claim cannot be satisfied
Independent Legal provides advisory and litigation services throughout the whole of the process in disputes arising out of transfers of immovable property resting on forged documents, from the preparation of evidence through to the enforcement of the judgment of registration.