Where a person recorded in the land registry under their own name holds an immovable property in good faith and as though owner for a sufficiently long period, the legal order no longer leaves that factual situation open to argument. The institution known as ordinary acquisitive prescription comes into play at precisely that point and, in cases where the registry entry and actual control coincide, renders ownership final by operation of law. The basis of the rule is Article 712 of the Turkish Civil Code No. 4721, and the institution is counted among the exceptional routes to the acquisition of ownership of immovable property.
As a rule, ownership of an immovable is acquired by a registration resting on a valid legal ground. The legislature has not, however, held that rule to be absolute; it has accepted that in certain situations ownership may also be obtained on grounds arising directly from the statute. Ordinary acquisitive prescription is the most typical manifestation of that acceptance.
Below we address, in a systematic order, the legal character of the institution, each of the conditions required, and the consequences to which the acquisition of ownership gives rise.
What Does Ordinary Acquisitive Prescription Mean?
The route to acquisition in question denotes the legal finality of the right of ownership where the person appearing in the land registry in the capacity of owner continues their possession of the immovable in good faith and without interruption for a specified period. Two elements are joined together here: the entry in the registry and the control actually established over the immovable. Once the prescribed period is complete, the position of ownership that emerges becomes closed to objections raised from outside.
The function of the institution is twofold. On the one hand the possessor who believes their right to be valid is protected; on the other, stability is secured in the law of immovable property by preventing relations of ownership from remaining in suspense indefinitely.
The Rule in Turkish Civil Code Art. 712
The statutory framework of the institution is drawn in Turkish Civil Code No. 4721 Art. 712. Under that provision, where a person appearing as owner in the land registry has held the immovable in their possession in good faith and without interruption for ten years, that ownership comes under the protection of the law and takes up a position that cannot be called into question against claims advanced by third parties.
The thinking behind the rule is plain: if registry entries that are treated as valid by their outward appearance have not been challenged over a long period, those entries ought to acquire finality. The principle of reliance on the land registry is thereby reinforced, and legal relations concerning the immovable are placed on a foreseeable footing.
The Points Distinguishing Ordinary from Extraordinary Prescription
In Turkish law the acquisition of immovable property by prescription is subject to a twofold distinction. In ordinary acquisitive prescription the basis is an entry existing in the registry, and the possessor’s good faith is indispensably required. Extraordinary acquisitive prescription, by contrast, arises where there is no title deed record at all or where the existing record carries no legal value; correspondingly, the period of possession has also been set longer.
The differences between the two routes are gathered first and foremost in the period, in the existence of a title deed record and in the condition of good faith; beyond that, their fields of application and the consequences to which they give rise likewise diverge. Determining accurately which of the two types comes into play in the particular dispute directly affects the answer to the question whether ownership has been acquired.
For the other dimension of the subject, the study entitled Acquisition of Ownership of Immovable Property by Extraordinary Acquisitive Prescription may be consulted.
The Conditions Required for the Acquisition of Ownership
Under Turkish Civil Code No. 4721 Art. 712, the finality of ownership depends on the elements prescribed by the statute being present together without exception. Those elements are decisive both as regards the protection of reliance on the registry and as regards the capacity of possession to produce legal consequences.
The Existence of a Valid Entry in the Registry
The first matter required is that the immovable be registered in the land registry in the name of a person. The entry must be treated as valid in point of outward appearance, that is to say the person in the position of owner must be identifiable in the registry.
The subtlety here is this: it is not compulsory for the entry to be legally faultless. Indeed, entries bearing the character of an unlawful registration may likewise, under certain conditions, form the basis of this route to acquisition. Where, by contrast, there is no title deed record at all — that is, where unregistered immovables are in question — the provisions governing extraordinary acquisitive prescription, and no longer the ordinary form, apply.
It must further be underlined that the immovable must, by its nature, be capable of being held in private ownership. There can be no question of acquiring by this route immovables that cannot be made the subject of private ownership.
The Registration Being Devoid of a Valid Legal Ground
We have noted that the person who is to acquire ownership must appear as owner in the land registry. In practice the greater part of these registrations are entries behind which no valid legal ground lies and which accordingly bear an unlawful character.
For an unlawful registration to be spoken of, the legal ground requiring the transfer must either be wholly absent or be invalid. The creation of an entry in a person’s name in the absence of a valid contract for the sale of immovable property, or the effecting of a registration in reliance on a contract of sale concluded without compliance with the official form, may be given as examples of that situation; in both cases the entry is defective as regards its legal ground.
The practical function of ordinary acquisitive prescription becomes clear at precisely this point: the institution operates as a mechanism that renders registrations defective from birth legally protected upon the lapse of a specified period. The person appearing as owner in the land registry becomes the owner of the immovable, provided that they also satisfy the other conditions required by Turkish Civil Code No. 4721 Art. 712.
The Possessor Acting in Good Faith
One of the most decisive conditions of the institution is good faith. Good faith means that the possessor regards their dealing with the immovable as lawful and that this belief is defensible by objective criteria. The provision of Turkish Civil Code No. 4721 Art. 3 also comes into play in that assessment.
It is sufficient that good faith be present at the moment possession begins; its subsequently falling away does not prevent the period from running. By contrast, there can be no question of a person who was in bad faith from the very outset acquiring ownership by this route. In practice, simulated (sham) transactions, striking disproportion in the price, and knowledge of the true holder of the right are the principal criteria indicating that good faith is absent.
Possession in the Capacity of Owner
For possession to be treated as apt for this route to acquisition, it is required that the person conduct themselves as owner over the immovable. That is to say, the possessor must actually use the immovable, take the benefit of its fruits and actually exercise the power of disposal over it.
Conduct such as the cultivating and harvesting of the land, the letting of the immovable, the erection of a building upon it, or the payment of tax debts is accepted as an indication of possession in the capacity of owner. Use arising out of a lease relationship, or possession maintained on behalf of another (derivative possession), by contrast, does not suffice to satisfy that condition.
Possession Suffering Neither Interruption nor Contest
Possession must continue throughout the period both without interruption and without contest. Whereas absence of interruption denotes the continuation of actual control without a break, absence of contest denotes that no serious legal objection to, or interference with, the possession has been made during that period.
The immovable changing hands, actual control coming to an end, or the true holder of the right bringing an action are among the events capable of interrupting the process. For that reason the sound completion of prescription depends on the continuity of possession.
The Completion of the Ten-Year Period
The period prescribed by the statute for ordinary acquisitive prescription is 10 years. Where that period expires without interruption and the other conditions are likewise present, the right of ownership becomes final in law.
The starting point of the period is the moment at which possession was obtained in the capacity of owner and in good faith. If possession is interrupted within the period, or one of the conditions falls away, prescription begins to run afresh. Calculating the period correctly is one of the headings that generates the greatest number of disputes in practice.
The Consequences to Which the Acquisition of Ownership Gives Rise
Obtaining ownership by this route does not consist merely in the acquisition of a right; it means at the same time that the existing title deed record is legally protected and that the relation of ownership becomes final. For that reason the moment at which the right arises, the character borne by the registration, and whether the acquisition may be asserted against third parties must be assessed under separate headings.
The Moment at Which the Right Arises
The right of ownership is acquired upon the materialisation of all the conditions enumerated in the statute. That possession maintained in good faith and in the capacity of owner completes ten years without interruption is sufficient for the right to become final in law.
The acquisition is accordingly not tied to any court judgment or to any administrative act. At the moment the period expires, ownership is treated as acquired by operation of law.
Registration Being Declaratory, Not Constitutive, in Character
In this route to acquisition the registration in the land registry is, as a rule, declaratory (notifying) in character. For the act giving rise to the right is not the registration but the expiry of the period.
The consequence of that is as follows: even if, notwithstanding that the conditions have materialised, no correction has yet been made in the registry, ownership has been acquired in law. The registration to be effected subsequently serves only the function of reflecting in the registry a legal position that already exists.
Assertion Against Third Parties
Where ownership is acquired by this route, the right obtained may also be asserted against third parties. Once the period has expired, claims of ownership raised by the former owner or by third parties will not be entertained.
That said, where the necessary correction has not been made in the registry, the provisions protecting third parties acting in good faith may come into play. For that reason, even though ownership has been acquired, a failure to update the title deed record may in certain situations give rise to a risk of losing the right.
The Effect of the Acquisition in Point of Time
As a rule the acquisition obtained by this route produces prospective effect. The right of ownership becomes final from the moment the period expires and takes effect for the time thereafter.
On the other hand, since claims of ownership relating to the past period likewise become incapable of being entertained once the period is complete, the acquisition is accepted as producing indirectly retrospective consequences. In that respect the institution both confers a right for the future and takes on the function of winding up disputes coming from the past.
The Independent Legal Assessment
In practice, ordinary acquisitive prescription most often confronts us on the defence side of actions for annulment of title deed and registration. In an action brought in reliance on an unlawful registration, if the respondent is able to demonstrate that the ten-year period has expired and that their possession in good faith has continued without interruption, the defect in the registry no longer produces any consequence. For that reason the fate of the file is most often tied to proof of the moment at which the period began and of good faith.
Whichever side of the dispute one finds oneself on, the preparation of evidence must be devised from the very outset. Witness statements establishing the character of the possession, tax records, lease agreements and building documents are frequently more decisive than the title deed record itself.
In a particular file the following headings in particular should be addressed as a matter of priority:
- Verifying from the outset whether the immovable is legally capable of being held in private ownership
- Distinguishing by documentary evidence whether the possession was maintained in an original or a derivative character
- Establishing the date on which the ten-year period began and any grounds of interruption
- Measuring the risk created for third parties by a position not reflected in the registry after the date of acquisition
- Characterising correctly whether ordinary or extraordinary prescription is to apply
Independent Legal provides advisory and litigation services throughout the whole of the process in disputes over annulment of title deed and registration, from the devising of prescription defences through to the completion of the registration procedure.