Right and obligations regarding real estate acquisitions of foreign real and legal persons in country lands have been subjected to changing and progressing legal arrangements in historical process. In certain times of the history, many states have brought arrangements which restrict real estate acquisitions but within the effect of globalization and free market economy, those restrictions have been tried to come down to minimum level with certain principles. The fundamental tenets of real estate acquisitions of foreign persons are “reciprocity principle” and “reconcilation of legal restrictions”
Reciprocity is a principle has been applied between at least two states and it entitles the same or similar rights to contracting states’s citizens. According to reciprocity principle which has also been applied in Turkish law system, the condition in real estate acquisitions of foreign persons in Turkey is to give the judical and actual rights to Turkish citizens in the countries of those certain foreigners.
Reconcilation of legal restrictions principle can be expressed as; the restrictions that applied to acquisitions of foreign persons can only occure according to that certain country’s legal restrictions within the acknowledge of different features from each other. About the legal restrictions of real estate acquisition of foreign real and legal persons in Turkish Law; most noted arrangements are The Law of Prohibited Military Zones and Security Zones numbered 2565 and The Law of Marque numbered 1062.
On the other hand, alternative fundamental arrangements about real estate acquisitions of foreign real and legal persons in Turkey has been brought within the Title Deed Law numbered 2644 and dated 22.12.1934 and Article 35 and 36 of Title Deed Law numbered 2644. The arrangements of the Title Deed Law which presented an innovated nature at the enforcement date time started to be amended into not fulfilling the needs and finally within the Law number of 5782 and 03.07.2008 dated amendments, it has taken its existing form. Intended for the last form of these arrangements; the implementation details for Memorandum of Ministry of Public Works and Settlement dated 17.07.2008 and numbered 2008/12 and Article 35 and 36 of the Title Deed Law have been determined.
There are three fundamental titles in Turkish legislation according to the scope and features of real estate acquisitions of foreign persons. Those are;
1. Regulations regarding foreign real persons
2. Regulations regarding corporations which have been established in foreign countries with their own state laws and legal personality
3. Regulations regarding companies which have been established or associated by foreign enterprisers in Turkey with legal personality
1. Regulations regarding foreign real persons
According to Article 35 of Title Deed Law numbered 2644, foreign real persons can buy real estates that are specified and registered as work place or residence on construction plan or piecemeal plan, establish a substantive and imprescriptible restricted real right. However, in order to be implemented the article, the principle of reciprocity and articles that make restrictions need to be realized.
1.1 Principle of reciprocity:
According to the article 35 of Title Deed Law, the country of foreign real person whom wants to acquire a real estate in Turkey should give the judical and actual rights of real estate acquisitions to Turkish citizens.
1.2.Real estate should specified as a work place or residence on construction plans.
According to Article 35 of Title Deed Law, the real estate that wants to be acquired by a foreign real person in Turkey should be within the compass of a constraction plan. Furthermore, the constraction plan of the real estate’s area should be registered to related land office. Apart from that, the real estate should be allocated to a work place or a residence. Therefore, according to the article 35 of the Title Deed Law, there is not an option for a foreign real person to acquire an agricultural estate.
1.3. The condition that acreage of a foreign real person’s acquired real estates and substantive and imprescriptible restricted real rights in Turkey can not be more than 2,5 hectare.
Within this regulation, a restriction that is based on quantity per person on real estate acquisitions of foreign persons have been imposed
1.4. The condition that a foreign person can acquire a real estate and substantive and imprescriptible real rights within the boundaries of central district and districts, on condition that the acreage of total fields inside of the construction plan and piecemeal plan can not be more than ten percent.
The another reason of restrictions in regulations regarding the acreage is to prevent foreign persons to acquire real estate densely in certain districts. According to Article 35 paragraph 7 of Title Deed Law, foreign persons can acquire real estate and substantive and imprescriptible real rights in the borders of central district and districts on condition that the acreage of total fields inside of the construction plan and piecemeal plan can not be more than ten percent. Council of ministers of foreigner’s central district and districts has the authority to determine the %10 to a lower percentage considering the importance of substructure, economy, energy, environment, culture, agriculture and security of central district and districts.
There are arrangements in Turkish regulations to restrict foreigners from acquiring certain real estates because of their qualifications. In this context, according to Article 35 paragraph 7 of Title Deed Law; Council of Ministers has the authority to determine the areas that are unpermitted to acquisitions of real estate and restricted real rights by foreign real persons. Those are: the areas that need to be protected by reason of watering, agriculture, mine, archeological sites, religion and cultural features; sensitive areas and strategical areas that need to be protected by reason of being special environmental areas within flora and fauna features; circumstances that require public weal and safety of country.
There are certain mechanisms that require restrictions regarding acquisition of real estate by reason of the circumstances that require national security and public benefit. The mechanisms that require restrictions and control of acquisition of real estate by foreigners regarding public benefit and national security; Beside Title Deed Law, Law of Prohibited Military Zones and Safety Zones numbered 2565 and Law of Marque numbered 1062 have regulated distinctively.
2. Regulations regarding corporations which have been established in foreign countries with their own state laws and legal personality
The companies of which all their partners or capital is foreign however have been established in Turkey are not juridically acknowledged as foreign companies and they are liable to Turkish company status and proceedings. Therefore, as it has been explained expressly in the law, the foreign company has been defined as, corporations which have been established in foreign countries with their own state laws and legal personality.
Regulations regarding real estate acquisitions of corporations with legal personalities which have been established in foreign countries based on their law system have been regulated in the Article 36 paragraph 2 of Title Deed Law. According to this regulation; Foreign corporations with legal personality based on the country law that they have been established can only acquire real estate and restricted real rights in Turkey within the scope of special law provisions. The following regulations regarding on this matter are the examples of commonly used exemptions: Article 8 of Tourism Promotion Law numbered 2634, Article 12 and 87 of Petroleum Law numbered 6326, Article 3 of Industrial Zone Law numbered 4737, Article 14 of Privatisation Law numbered 4046, Article 5 of the Law on Promotion of Cultural Investments and Initiatives.
3. Regulations regarding companies which have been established or associated by foreign enterprisers in Turkey with legal personality
Real estate acquisition of companies with foreign investor status has been reformulated within the amendment on the Title Deed Law dated 03.07.2008 and numbered 5782. According to the regulation, companies with legal personalities that have been established or associated by foreign investors in Turkey can acquire real estate or restricted real rights on condition “to conduct only the subject of activities at the Articles Of Association.” Enforcement procedures and principles of this article have been regulated within the by-law of acquisitions of companies with foreign capitals of Ministry of Public Works and Settlement which has published on the official gazette dated 06.10.2010 and numbered 27721. The by-law proposes that the process concerning real estate and/or restricted real rights acquisitions of foreign companies in Turkey has occured by Governorates. The procedure is run by Governorates briefly as follows;.
After the application of acqusition of real estate, Governorates demand to inform within 15 days that whether the real estate is inside the military exclusion zone or not by sending writ to the Head of General Staff or the authorised commanders.In case there is no reply within this term,it will be transacted by deciding that stated real estate is not inside of the mentioned areas
Moreover Governorates demand to inform within 15 days that whether the real estate is inside the exclusion safety zone or not by sending writ to the Provincial Police Office or Provincial Gendarme Commander. In case there is no reply within this term,it will be transacted by deciding that stated real estate is not inside of the mentioned areas
In case the conclusion of application is positive or it is assumed as positive, a written information is given to the Land Office and to the company for registration transactions by Governorates. In case of demand, the related writing delivered to the company authoriser by hand.
When the consequence of application is negative, the reason of transaction, the legal action shall be taken against the transaction and its duration are informed to company by Governorates.
The legal amendments made in accordance with the adjustment process of European Union regulations in Turkey; have displayed positive consequences about the acquisition of real estate of foreigners in our country and facilitated to the process of acquisition of real estate by foreigners in Turkey.
