Acquisition of Foreign Legator’s Immovable Property Located in Turkey and Obtaining Certificate of Inheritance 30 October 2015
The purpose of this study is explaining how to acquire immovable property located in Turkey after foreign owner is deceased, whether recognition of will is possible or not, provisions about whether obtaining certificate of inheritance is requirement and related decisions of Supreme Court.
A. Recognition/Nonrecognition of Will or Certificate of Inheritance Which Are Obtained From Foreign Country
Turkish courts have exclusive jurisdiction for dispute resolutions about immovable property according to The Turkish International Private and Procedural Law (“IPPL”) numbered 5718 and Turkish Civil Code numbered 4721. Therefore, if certificate of inheritance is obtained from relevant institutions and organizations in accordance with laws of foreign country, it is impossible that such certificate can be recognizable intended for transition of immovable property. According to decision of 2nd Civil Chamber of Supreme Court dated 12.07.2002 and numbered E. 2002/8254 K. 2002/9339, certificate of inheritance which is submitted for recognition does not have the qualifications of court decree and also because Turkish courts have exclusive jurisdiction about immovable property, it shall not be recognized on the purpose of showing the transition of immovable.
In addition, as an example, Turkish courts also have exclusive international jurisdiction about tutelage affairs. The decision made by foreign courts which is about tutelage shall not be subject of recognition and enforcement in Turkish courts decisions. (IPPL Art. 38 and 42) (Supreme Court Assembly of Civil Chambers “SCACC”: d. 18.11.2009, E. 2009/2-557, K. 2009/527; Assembly of Civil Chambers “ACC”: d. 08.07.2009, E. 2009/2-280, K. 2009/326)
Besides, 2nd Civil Chamber of Supreme Court mentioned under the decision which is numbered E. 2007/4898 K. 2007/8730 and dated 24.05.2007, “foreign document, which is subject of jurisdiction and submitted for recognition, is about authorization of someone who is responsible for opening and fulfillment of will. This document shall not be regarded as a court decree, it is about administrative disposal. Request shall be refused.”
In this way, because subject of this study is transition of immovable property located in Turkey, it should be specifically indicated that Turkish courts have exclusive jurisdiction about this issue. Therefore, in the light of aforementioned Supreme Court decisions, certificate of inheritance obtained from foreign country or will prepared in accordance with law of foreign country shall not be recognized by Turkish courts. In other words, these documents shall not be enough to transition by inheritance of immovable property located in Turkey.
B. Transition of Immovable Property and Obtaining Certificate of Inheritance
Article 20 of IPPL numbered 5718 regulates that “The national law of the deceased shall govern inheritance. Turkish law shall apply to immovable property located in Turkey. Provisions relating to the reasons of opening, acquisition and distribution of succession shall be governed by the law of the state where the estate is located.” in parallel with Article 22 of abrogated IPPL numbered 2675.
Pursuant to abovementioned provision, it is indisputable fact that Turkish law will apply to immovable property. In addition to explanations in section A of this study, because Turkish law will apply to immovable property and also certificate of inheritance obtained from foreign court or will shall not be recognized, we are of the opinion that certificate of inheritance shall be obtained in accordance with Turkish laws.
7th Civil Chamber of Supreme Court mentioned under the decision which is numbered E. 2012/7173 K. 2013/366 and dated 23.1.2013, “Turkish Court, which is authorized to give certificate of inheritance, can prepare certificate of inheritance for foreign legator’s heritage which is subject to foreign law. There is no regulation inhibits this opportunity.”. Thus, certificate of inheritance can be obtained from Turkish courts.
In respect of aforementioned decision of 7th Civil Chamber of Supreme Court decided to dismissal of charges on the basis of legator and heirs are not citizens of Turkey, they are USA citizens and the national law of the deceased shall govern inheritance. According to the Court of First Instance, after the recognition of certificate of inheritance obtained from USA Courts, this certificate can be considered as evidence in accordance with Turkish laws.
As is seen, in related decision, foreigners filed a lawsuit before Turkish courts in order to obtain certificate of inheritance. Nevertheless, Court of First Instance decided that certificate of inheritance obtained from USA Courts can be accepted as an evidence after the recognition this certificate by Turkish Courts. However, 7th Civil Chamber of Supreme Court reversed the judgement regarding that Turkish law shall be applied to immovable property. According to 7th Civil Chamber of Supreme Court, procedures that shall be applied by the court are as follows:
- Court should give time for alleged heirs in order to submit court decree or registers of persons that is duly prepared by USA Courts or Civil Registry Offices and that shows family bond between husband/wife, children and the legator.
- Court should ask plaintiff that certificate of inheritance is requested whether for movable goods or immovable property or both.
- Turkish law shall apply to immovable property. Legator’s national law should be determined (IPPL numbered 2675, Art. 2) with the help of plaintiff in respect to movable goods.
- It should be investigated that whether reciprocity principle is applicable for USA which is nationality of legator in respect of acquisition of heritage.
- Two different certificates of inheritance might be prepared for movables and immovables in the light of evidences.
Abovementioned subclause “4” is based on Article 35 of Land Registry Law numbered 2644. However, herein this article is changed by the Code numbered 6302 which entered into force in 18 May 2012. Accordingly, reciprocity principle is abolished for foreign real entities’ acquisition of immovable property in our country. In this direction, citizen of countries that are identified by Council of Ministers can acquire immovables located in our country in certain circumstances.
Attendantly, because reciprocity principle is left out, immovable property located in Turkey can be acquired by inheritance in some special conditions (For instance, three hundred decares cannot be exceeded). (For detailed information, you can visit our website: “Publications” – Article headed “Purchase of Immovable Property by Foreign Natural Person in Turkey”)
On the other hand, 3rd Civil Chamber of Supreme Court made a disputable decision in its decision dated 29.03.2011 and numbered E. 2010/14495 K. 2011/5129. According to this decision;
“Turkish law shall govern immovable property located in Turkey. In the present case, defendant who is son of legator is appointed as guardian for all assets by will. Assets of legator contain immovables located in Turkey. In that case, will shall be prepared in accordance with the procedure in Turkish Law for validity of immovable property will. Official will is prepared by officials in presence of two witnesses. However, the will in dispute is not prepared according to this form. Assets of legator contain immovables located in Turkey. And so, the will of immovable property will shall be set according to the procedure in Turkish law in order to say that this will is valid.”
Hence, the decision of 3rd Civil Chamber of Supreme Court extends the application of Turkish law to immovable property. In our estimation, however, this decision is not proper. Besides, there is a counter decision of 2nd Civil Chamber of Supreme Court dated 06.11.2008 and numbered E. 2008/13740 K. 2008/14696. According to this proper decision;
“The national law of deceased shall govern inheritance. Turkish law shall apply to immovable property located in Turkey. Reasons of opening of the succession, devolution of an inheritance and partition of inheritance shall be governed by law of country where heritage is located in. Heirless heritage located in Turkey escheats to the government. Article 7 shall apply to the form of testamentary dispositions. Testamentary dispositions which are executed in accordance with national law of deceased shall also be valid. The legal competency to execute a testamentary disposition is governed by the national law of the executing person at the time of execution (IPPL Art. 20).”
Due to these reasons, it is clear that will which is prepared according to national law of deceased is valid. Despite this, related will is not singly enough in order to transition of immovables; it can be considered as an evidence for certificate of inheritance that will be obtained.
C. Conclusion
Pursuant to aforementioned explanations and decisions of Supreme Court; because condition of reciprocity is abolished, it is possible that foreign citizens of presently 183 countries (As we mentioned in our previous articles, these countries shall not be officially expressed because of the confidentiality policy) can acquire immovable property by inheritance.
Nonetheless, because Turkish Courts have exclusive jurisdiction about immovable property, recognition of will or certificate of inheritance which are obtained from foreign courts shall not be possible. In our opinion, related will is not solely enough for transition of immovable property; there should be application to Turkish Courts in order to obtain certificate of inheritance which includes transition of immovables.
Actions to be taken in order to transition of immovable property are as follows:
a. Court decree or registers of persons which show family bond between legator and alleged heirs who are husband/wife and children of legator shall be acquired. These documents shall be obtained from their national courts or Civil Registry Offices.
b. Certificate of inheritance for immovable property shall be requested by applying to Civil Court of Peace.
c. After the obtaining of certificate of inheritance, required transactions shall be finished in Directorate of Land Registry.
Türkçe Versiyonu İçin
