Do Neighbors Have the Pre-emption Right in the Sale of Agricultural Lands? 16 January 2019

Legal pre-emption right which is granted to the land owners whose land borders the agricultural lands with the amendments on Soil Protection and Land Use Law no. 5403 (“Law no. 5043”) has a lot of features parallel to the regulations of the Turkish Civil Code (“Civil Code”) in terms of the method and conditions of use of the right in conjunction with its unique characteristic. In practice, it is seen that this regulation which was enacted by the legislator to ensure public interest in an attempt to prevent agricultural lands from losing its functionality and entirety by dividing, creates great problems for the owners.

Indeed, it is seen in practice that the regulation brought for ensuring the entirety of agricultural lands, makes difficult to find buyers who intend to invest externally in agricultural lands due to the pre-emption right granted to neighbor landlords; potential investors avoid investing in agricultural lands because of the existence of the pre-emption right in order not to face the possible trial process; aforesaid situation causes to decrease the value of the agricultural lands; neighbor landlords do not purchase agricultural lands for a long time with the expectation of low price. Under these circumstances, it not possible to say that the regulation enacted for ensuring public interest by protecting the entirety of the agricultural lands, has achieved its purposes at this point.

In accordance with the amendment on Law no. 5043, what is the pre-emption right is granted to the land owners whose land borders the agricultural lands, how is this right claimed?

I.   What is the preemption right?

The pre-emption right is divided into two types as legal and contractual pre-emption rights.  Legal pre-emption right expresses the right which is granted to the joint-owner to buy the share of other joint-owner if the other joint-owner sold his share as a whole or partially to a third party. Not only the pre-emption right regulated in TMK but also a number of legal pre-emption rights are granted by other regulations. One of them is the legal pre-emption right granted to neighbor landlords with the amendments on Law no. 5403 in 2014.

While the first subparagraph of Article 8/I of the Law no.5403 regulates the pre-emption right granted to members of the family property partnership or family property partnership with profit share in case of the transfer of a commodity by the members to the third parties; the second subparagraph regulates the legal pre-emption right granted to neighbor landlords of the agricultural lands.

In the second paragraph of the aforementioned provision, the pre-emption right on agricultural lands is regulated as follows:

“The land owners whose land borders the agricultural lands have the pre-emption right in case of the sale of an agricultural land. If the agricultural land is sold to one of the land owners whose land borders the agricultural lands, other cross borders cannot claim the pre-emption right. If several land owners would like to use their pre-emption right at the same time, the judge shall decide to transfer the ownership of the agricultural land subject to the pre-emption right to the owner of the land constituting an agricultural entirety.”

II. Who can use the pre-emption right for the agricultural land which I bought?

It is stated in the provision that in the event of the sale of agricultural land to the third parties, a pre-emption right is granted to the land owners whose land borders the agricultural land subject to sale. Therefore, firstly, the lands should border each other. In order to benefit from the pre-emption right, the land which borders the agricultural land subject to the sale should also have the characteristic of an agricultural land.

On the other hand, in case that there are several land owners whose land borders the agricultural land sold to the third parties, it will be decided to transfer of the ownership to the owner of the land constitute an agricultural entirety. Issues such as the type of agricultural activity are taken into consideration in the determination of agricultural entirety. However, if the agricultural land is sold to either of the land owners bordering the agricultural land, other land owners cannot use their pre-emption right.

III. Use of the preemption right and time limitation

In accordance with the reference of Article 8/i of Law no.5403 to the Civil Code, under Article 733 of the Civil Code, the pre-emption right can be used by filling a lawsuit. The owner of the pre-emption right is obliged to deposit the pre-emption price in the period and to the place that are decided by judge before the decision of the registration of the share in favor of him. The pre-emption price consists of the sale price stated in the title deed and total of fees and expenses paid by defendant (buyer).

There are two kinds of period for the use of the pre-emption right:

• If the sale transaction is notified to the owners having a pre-emption right through the notary by the buyer, the case of pre-emption must be filled within three months after the notification of sale.
• If the sale transaction is not notified to the owners having a pre-emption right through the notary, the case of pre-emption must be filled within 2 years from the date of sale in any case.

After this period the pre-emption right holder cannot use its pre-emption right.

On the other hand, it is necessary to state that the pre-emption right can only be exercised in case of sale of immovable property subject of the pre-emption right, entirely or partially to the third parties. The sale transaction leads the pre-emption right. The land owner whose land borders the agricultural land subject to the sale cannot exercise his pre-emption right in case of the transfer of the immovable property to the third parties by the sale of compulsory enforcement, allocation to the heirs, barter and donation. At this point, it has great importance to determine whether in question legal transactions such as barter or donation are concluded collusively to prevent the use of the pre-emption right or not.

IV. Waiver of the pre-emption right

Pursuant to Article 733/2 of the Civil Code, the waiver of the pre-emption right is required to be made in official form required by law and annotated to the land registry. In this case, a complete waiver of the pre-emption right is only possible in official form concluded before the directorate of land registry. On the other hand in case the right owner is waiving its right in a particular sale, it is sufficient to declare the waiver will in written. The waiver of the right in a particular sale can be given before or after the transfer. The holder of the pre-emption right who waived his right in a particular sale can exercise his pre-emption right in case of resale of the immovable property.

 Türkçe Versiyonu İçin

http://www.kasaroglu.av.tr/tr/Tarimsal-Arazilerin-Satiminda-Komsu-Maliklerin-Onalim-Hakki-Var-Midir