Properties that have not been entered in the register and are for the most part held and used in fact are referred to in legal language as unregistered immovable property. The informal changing of hands of such properties, with possession being left to the other party, is a very widespread practice in our country. Since there is no official entry, however, serious problems can arise under headings such as whether the sale stands in law, how possession is to be proved, the outcome of cadastral operations and the conflict of ownership claims.
Among the situations most frequently encountered in practice are the transfer of the same place separately to different persons, boundary disputes with neighbouring parcels, and objections raised against cadastral determinations. Alongside these, the protection of factual control over the property against unlawful interference and the acquisition of ownership on the basis of long-standing use also carry particular weight.
In this briefing note we examine, with examples from practice, the ways in which unregistered properties are transferred, the conditions required for a transfer to take effect in law, the protection afforded to possession and the operation of acquisitive prescription.
The Concept of Unregistered Immovable Property
Properties that have not been entered in the land registry but which persons hold and benefit from in fact fall within the scope of this concept. Despite the absence of an official entry, factual control may be established over the property and the use may be maintained without interruption.
In areas where no cadastral operation has been carried out, or in certain places that have been used in fact since the past, claims of right founded on possession arise notwithstanding the absence of a land registry entry. The absence of an entry nevertheless creates significant legal difficulties both as regards establishing ownership and as regards the changing of hands of the property.
The Decisive Role of Possession
In these properties possession lies at the centre of the legal discussion. Possession means the establishment of factual control over a thing. In unregistered properties persons generally establish that control by cultivating the land, by erecting a structure upon it, by marking out its boundaries or by using the property in fact.
For this reason, in the disputes that arise, whether possession has continued without interruption, for how long the use has continued, who has established control over the property and the nature of the factual use come to the fore. Possession is also one of the fundamental building blocks as regards the acquisition of ownership through acquisitive prescription.
Points of Difference from Registered Property
In registered properties ownership is acquired by registration in the register; in unregistered properties no such entry exists. Correspondingly, while registered properties are transferred by official act at the land registry directorate, in unregistered ones the transfer generally takes place in the form of factual delivery and the transfer of possession.
A further difference lies in probative force. Whereas a land registry entry constitutes a strong presumption of ownership, in unregistered properties claims of right are for the most part founded on the facts of factual use and possession.
Because of this structural difference, claims of right advanced by more than one person over the same place, objections to cadastral determinations, boundary disputes and difficulties of proof arise more frequently in unregistered properties.
The Legal Position of Unregistered Properties
Even in the absence of an official entry, various claims founded on factual use and possession may be advanced over these properties. Particularly in places through which the cadastre has not passed, persons may establish factual control by cultivating the property for years, by keeping a structure upon it or by using it in other ways.
Not every unregistered property is subject to the same legal regime, however. The character of the property is decisive; different and stricter rules apply in respect of shores, pastures, forests and public property.
Assessment from the Standpoint of Ownership
The absence of a land registry entry does not lead to the conclusion that no one holds a right over the property. Possession and factual use continuing over a long period may, where the required conditions are present, provide the basis for the acquisition of ownership.
Even so, proof of ownership is far more laborious in these properties than in registered ones. Since there is no register entry to rely on, claims must be built upon the facts of factual use and possession.
Protection of Possession
In these properties possession lies at the focus of legal protection. A person who uses the property in fact and establishes control over it may, under certain conditions, benefit from the protection of the legal order.
In the face of unlawful interference directed at possession, claims for the prevention of interference and for the removal of the interference, claims for compensation for unjust occupation in return for the unlawful use, and recourse to the administrative application route under Act No. 3091 may arise.
Places Through Which the Cadastre Has Not Passed
In areas where no cadastral operation has been carried out, the official determination of ownership has not yet taken place, and factual use and possession accordingly acquire particular weight. Persons who have used the property for many years have the opportunity to advance a claim of right during the cadastral operation.
For this reason the cadastral process constitutes a critical stage in determining to whom ownership of an unregistered property will belong.
The Position as Regards Public Property
Not all unregistered properties are of such a character that they may be made the subject of private ownership. Certain properties under the sovereignty and disposal of the State are regarded as public property and cannot be brought into private ownership.
The fact that a property is unregistered does not therefore mean that ownership may be acquired through possession.
The Special Regime of Forests, Pastures and Shores
Shores, winter quarters, summer pastures, pastures and forests are among the public property under special protection. Even where there has been factual use of properties of this character extending over many years, private ownership cannot as a rule be acquired.
The provisions on acquisitive prescription do not apply to properties designated as forest or pasture; disputes concerning such places are nevertheless frequently brought before the courts in practice.
How Is the Transfer Carried Out?
Since there is no entry in the register, an official sale at the land registry directorate is not possible in respect of these properties. The changing of hands is therefore generally achieved in practice by factual delivery together with the transfer of possession.
Simple written documents, informal contracts of sale drawn up between the parties and the transfer of use are frequently resorted to. Since these transactions do not take the place of an official transfer of title, they carry the potential to give rise to disputes in the future.
Sale by Way of the Transfer of Possession
At the basis of the transfer lies the passing of possession to the other party. The transfer of possession means that factual control over the property is left to another person.
In practice this takes place in the form of the property being delivered in fact to the purchaser, the use being left to the transferee, and control over the property being passed to him.
Informal Contracts of Sale
Unregistered properties often change hands by means of informal contracts of sale prepared by the parties. Such contracts are generally drawn up in simple written form and set out the parties’ intention as to the sale together with the agreement on transfer.
An informal sale nevertheless does not carry the value of an official transfer of title. In practice this can lead to disputes with heirs, to boundary disputes with neighbouring properties and to the same place being sold to more than one person.
The Weight of Factual Delivery
Factual delivery is a decisive element in unregistered properties. Since there is no register entry, the use of and control over the property constitute the foundation of the claim of right.
Within this framework, the showing of the boundaries of the property, its delivery to the purchaser, the leaving of the use in fact and the passing of control to him are counted among the important items of evidence in practice.
Drawing Up a Written Document
Although no official formal requirement is sought as regards the transfer, drawing up a written document is of great importance in order to avoid a dispute later.
Setting down on paper such matters as the date on which delivery was made, how the property is used, where its boundaries run and what the sale price was makes proof easier in any dispute that may arise.
Is a Notarial Transaction Mandatory?
A transaction before a notary is not mandatory for the transfer of unregistered properties, since there is no registered property capable of being made the subject of an official transfer.
Even so, the parties may make a declaration or draw up a contract before a notary in order to document the relationship of sale. The fact that a transaction has been carried out before a notary does not, however, mean that ownership of the property has been officially transferred.
Conditions for the Validity of the Transfer
Even in the absence of an official land registry transaction, the transfer taking effect in law depends on certain conditions. Foremost among these are the parties’ intention to transfer, the passing of possession and the transfer of factual control to the transferee.
The great majority of the disputes arising in practice turn on the points of what the parties’ true intention was, whether factual delivery took place and who uses the property.
The Transferor’s Capacity as Possessor
For a transfer to be made, the transferor must have established factual control over the property, that is to say he must be in the position of possessor.
Transfers carried out by persons having no factual connection whatever with the property, who have established neither use nor control over it, are the source of serious disputes in practice.
Mutual Intention to Transfer
The validity of the transfer requires that the parties have a mutual intention as to the changing of hands of the property. It is required that agreement has been reached on the transfer of the use and of possession.
In practice that intention is established by reference to the state of the factual use, witness statements, the written documents drawn up and the informal contracts of sale.
Identifiability of the Property
The property that is the subject of the transfer must be determinate or at least capable of being determined. Serious disputes arise in respect of properties where it cannot be understood which area has been transferred or whose boundaries are uncertain.
It is therefore important that the area used be identified, that the location of the property be clearly stated and that its boundaries be shown.
The Passing of Factual Control to the Transferee
One of the most critical elements of the transfer is the passing of factual control to the purchaser. Since there is no official registration, whether the use and possession have genuinely changed hands becomes decisive.
The delivery of the property, the leaving of the use to the transferee and the passing of control to him are accepted as among the basic indications that the transfer has taken place.
Absence of Unlawfulness or Immorality
Whether the transfer may receive legal protection depends on the transaction not being contrary to law and morality. Transfers made over public property, forests, pastures and properties incapable of being made the subject of private ownership cannot benefit from that protection.
In the same way, transactions involving simulation (sham transactions), sales made with fraudulent intent and unlawful relationships of use are likewise a source of various disputes.
Means of Protecting Possession
Even in the absence of a register entry, factual control over the property is to a certain extent protected in law. Unlawful interference directed at the possession of a person who uses the property in fact may be removed by way of an action or by way of an administrative application.
Indeed, in disputes over unregistered properties it is for the most part not the provisions on ownership but the rules on the protection of possession that find application.
Interference Directed at Possession
The problem most frequently encountered is interference with the possession of the person who uses the property in fact. The property beginning to be used by someone else, the shifting of boundaries, the obstruction of the use and unauthorised entry onto the property are the principal forms such interference takes. In such cases recourse may be had to the legal remedies protecting possession.
Action for the Prevention of Interference
A person who uses the property in fact may bring an action for the prevention of interference in order to bring to an end unlawful interference directed at his possession.
The aim of this action is to protect factual control, to remove the obstacles standing in the way of the use and to halt the interference. This route is of great importance in practice, particularly where the factual use has continued for a long time.
Claims for Compensation for Unjust Occupation
Where the property is used unlawfully, the person holding the property in fact may, where certain conditions are present, claim compensation for unjust occupation.
Such compensation is in the nature of a payment for use arising from the unlawful use, and arises in particular where the property is used by third parties without authorisation.
Protection Under Act No. 3091
Possession may also be protected under the provisions of Act No. 3091 on the Prevention of Encroachments upon the Possession of Immovable Property.
Within the scope of this route, an application may be made to the administrative authorities for the prevention of unlawful interference, and where the conditions are met a decision may be given for the removal of the interference.
Because it offers an alternative to lengthy proceedings, this application route is frequently preferred in practice.
Proof of Possession
One of the most critical headings in these disputes is the proof of possession. Since there is no register entry, factual use and control are established by various items of evidence.
To that end, on-site examination and expert examination, photographs, the state of cultivation and use, electricity and water subscription records, tax records and witness statements are the types of evidence most frequently relied on in practice.
Acquisition of Ownership Through Acquisitive Prescription
Possession that is long-standing and conforms to the qualities required by law may in certain cases provide the basis for the acquisition of ownership. The provisions on acquisitive prescription are of particular importance for persons who have used, in the capacity of owner and for years, properties through which the cadastre has not passed or which have no land registry entry.
For ownership to be acquired by this route, however, the property must be of a character suitable for private ownership and the conditions required by law must be fulfilled together.
Extraordinary Acquisitive Prescription
The institution that finds the widest application in unregistered properties is extraordinary acquisitive prescription. Within the framework of Turkish Civil Code No. 4721, Art. 713, it may be possible to acquire, on certain conditions, properties whose owner cannot be determined or which have no entry in the land registry.
What is decisive here is that the property has been used as an owner would over many years and that possession has been maintained without interruption.
For the details of the subject, our study entitled Acquisition of Immovable Property Ownership Through Extraordinary Acquisitive Prescription may be consulted.
The Duration and Qualities of Possession
The acquisition of ownership by this route depends on possession continuing, for the prescribed period, without dispute and without interruption.
That the possession does not rest on the superior right of another, that it is open and continuous in character, that the factual control has not been interrupted and that it has been maintained in the capacity of owner are the principal qualities required. Proof that the factual use has continued for a long time is decisive in practice.
The Requirement of Good Faith
In the extraordinary acquisitive prescription applied to unregistered properties, a land registry entry and a requirement of good faith such as those found in ordinary prescription are as a rule not required.
At the same time, the nature of the possession, the manner of use and the particular circumstances of the case are separately assessed by the court.
Consequences of the Acquisition of Ownership
Where the required conditions come together, the possessor may acquire the right of ownership over the property. At this stage the entry of the property in the register arises and an ownership entry may be created in the person’s name.
For that result to follow, however, a registration based on a court decision must in most cases be carried out.
Relationship with the Action for Annulment of Title Deed and Registration
Ownership claims founded on acquisitive prescription are in practice generally advanced by means of actions for annulment of title deed and registration. In properties where the owner column has been left blank or which have no land registry entry, claims for registration founded on possession may be brought before the courts.
In these actions the on-site examination and expert examination, the cadastral records, the character of the property, the extent of the factual use and the duration of the possession constitute the decisive elements.
Independent Legal Assessment
What determines the outcome in disputes over unregistered properties is far less the existence of a piece of paper signed between the parties than the ability to document by whom and for how long the property has in fact been used. An informal deed of sale does not by itself confer ownership; it does, however, carry value as evidence showing the intention to transfer and that possession has changed hands. For this reason, beginning to create records that give concrete form to the use immediately after the transfer lays the foundation of any registration action brought later.
The second critical point is the character of the property. Since ownership cannot be acquired over a place designated as forest, pasture or public property no matter how long possession is maintained, determining the character of the property before bringing an action prevents a loss of time and expense. In a concrete file the following headings should be addressed as a priority:
- Investigating at the outset the cadastral position of the property and whether it is suitable for private ownership
- Establishing the duration of possession without interruption by means of tax records, utility subscriptions and witness statements
- Setting out clearly in writing, in the informal deed of sale, the price, the boundaries and the date of delivery
- Investigating whether there have been earlier transfers over the same property and verifying the chain
- Assessing, from the standpoint of time limits, the choice between the route under Act No. 3091 and the route of an action in the event of interference
- Advancing the claim of right in due time at the determination stage where a cadastral operation has begun
Independent Legal provides advisory services and conducts litigation at every stage of the process, from the structuring of transfer relationships concerning unregistered properties to the protection of possession and the conduct of registration actions founded on acquisitive prescription.