Is Sale Under Joint Ownership Invalid? Can Heirs Sell Their Share?

Upon the death of the deceased, joint ownership (co-ownership) arises over the immovable properties passing to the heirs. Under this regime, heirs do not have independent shares, and each heir exercises their right jointly over the entire property. According to the established jurisprudence of the Court of Cassation, as long as joint ownership continues, unilateral sale, transfer of share, or promise to sell to third parties is legally invalid.

This article examines disposition restrictions in joint ownership, exceptions among heirs, the consequences of transition to co-ownership, and prohibitions specific to agricultural lands, in a practice-oriented manner in light of current Court of Cassation decisions.

1. Joint Ownership (Co-ownership) Principles and Disposition Restrictions

According to Court of Cassation jurisprudence, as a rule, the provisions of “joint ownership” apply to immovable properties that pass to heirs upon the death of the deceased. Under this ownership regime, heirs do not have defined independent shares, and the right extends to the entire property (8. Civil Chamber-2015/6736 K).

Prohibition of Unilateral Disposition: As long as co-ownership continues, the sale of the immovable property or their own share unilaterally to third parties by one or more of the heirs is legally invalid (8. HD-2013/9033 , 8. HD-2015/6736 ). Unanimous decision of all co-owners is mandatory for disposition transactions (8. HD-2015/6736 ).

Succession Transfer Process: The registration process for the transfer of immovable properties in the name of the heirs by way of inheritance is carried out without indicating the heirs’ shares, by merely listing their names and specifying the status of joint ownership (İçtihatları Birleştirme BGK-1984/2-1985/5 K). At this stage, there is no independent share that any co-owner can dispose of unilaterally.

Promise to Sell to Third Parties: Unless co-ownership is converted into shared ownership, contracts for the promise to sell made to persons outside the estate cannot be fulfilled (executed) (14. HD-2011/1111 K, 7. HD-2021/6443 K).

2. Transfer of Shares Among Heirs and Exceptions

Even if co-ownership continues, certain exceptions are recognized for transactions among the heirs themselves:

Assignment Among Heirs: According to the Civil Code, before the division of the inheritance, it is possible to assign the right of inheritance in an immovable property included in the estate to “another heir”. For these types of contracts to be valid, they do not need to cover all rights in the estate, and these contracts can enable transactions in the land registry without disturbing the joint ownership status (Unification of Jurisprudence General Assembly Decision – 1984/2-1985/5 K).

Form Requirement: For inheritance share transfer agreements made among heirs to be valid, they must be in writing (14th Civil Chamber – 2016/11258 , 8th Civil Chamber – 2016/7927 K). These contracts are valid without the consent of other heirs (8th Civil Chamber – 2010/7080 K).

Judicial Claim: An heir can only request registration in their own name, proportionate to their inheritance share, with the cancellation of the land registry record; however, they cannot request registration in the name of other heirs (8th Civil Chamber – 2011/6909 K, 8th Civil Chamber – 2012/10927 .

3. Transition to Co-ownership and Independent Selling Authority

If the joint ownership among heirs is converted into co-ownership (shared ownership), the disposal authority of each heir changes:

Independent Right of Disposal: In co-ownership, each co-owner can dispose of their share as they wish, independently of the others, sell their share, or transfer it (16th Civil Chamber – 2016/17495, 14th Civil Chamber – 2011/3436).

Sale After Registration: It has been determined that when immovable property is transferred as co-ownership (shared ownership) in proportion to inheritance shares, heirs can sell these shares to third parties, and these transactions are consistently recorded in the land registry (1. HD-2014/16986, 1. HD-2012/16288).

Effect of Transformation: After the transformation of joint ownership into co-ownership, previously made “inheritance share transfer agreements” become invalid; as the provisions of co-ownership are now fundamental (8. HD-2014/14915 

4. Special Restrictions Regarding Agricultural Lands

A special regime has been foreseen for agricultural lands of indivisible size:

If co-ownership exists in such lands, the lands cannot be subdivided, and shares cannot be sold or transferred to third parties (14. HD-2012/15180). In this case, it is legally prohibited for heirs to sell their shares independently.

5. Information Obtained from Secondary Sources and Application Examples

The following points have been compiled from secondary sources that provide additional context when information in decision texts is limited:

Secondary Source (5. HD-2024/6655 ; 20. HD-2019/2259 ): In practice, it is observed that heirs first carry out transfer transactions, then perform share sales among themselves, and these sales are recorded in the land registry.

Secondary Source (HGK-2022/718 ): It is understood that after heirs transfer the immovable property as co-ownership (e.g., with 1/4 shares), they can transfer shares by giving power of attorney to each other, and these transfers can be for a consideration or gratuitous (donation).

Secondary Source (Ruling-21.05.2013): While the title deed fee is accrued integrally in the name of all owners in sales made during the phase of joint ownership; after transitioning to co-ownership, fees are collected separately for each shareholder’s share in subsequent sales.

Secondary Source (1st Civil Chamber-2025/2512): It has been stated that heirs’ applications for independent registration of their shares in the title deed, in cases where there is no external or legal partition, can be subject to dispute due to claims such as de facto partition or donation, and require detailed examination by the court.

Secondary Source (14th Civil Chamber-2016/10907): While the sale of a general share is possible in co-ownership, it has been emphasized that the consent of the other co-owners may be required for the sale of a specific physical section (a concrete part) of the immovable property.

Frequently Asked Questions

Elbirliği mülkiyetinde bir mirasçı kendi payını tek başına satabilir mi?

Hayır. Elbirliği mülkiyetinde bağımsız pay kavramı bulunmaz. Bu nedenle mirasçılardan birinin tek başına yaptığı satış veya satış vaadi kesin hükümsüzdür. Tasarruf için tüm mirasçıların oybirliği gerekir.

Mirasçılar kendi aralarında pay devri yapabilir mi?

Evet, sadece mirasçılar arasında olmak kaydıyla mümkündür. Miras payı devri sözleşmesi yazılı şekilde yapılmalı ve bu işlem elbirliği mülkiyetini sona erdirmez. Üçüncü kişilere yapılan devirler ise geçersizdir.

Paylı mülkiyete geçilirse mirasçı payını serbestçe satabilir mi?

Evet. Elbirliği mülkiyeti paylı (müşterek) mülkiyete dönüştürüldüğünde, her paydaş kendi payı üzerinde bağımsız tasarruf yetkisi kazanır ve payını üçüncü kişilere satabilir.

Why is Expert Lawyer Support Necessary?

Transactions made on inherited immovable properties can lead to consequences that are difficult to reverse, such as absolute nullity, invalid sales, title deed cancellation and registration lawsuits, and fee and tax disputes. Specifically:

Confusion of joint ownership with co-ownership,

Invalid promises to sell made to third parties,

Violation of indivisibility and transfer prohibitions in agricultural lands,

The execution of share transfer agreements at the wrong stage leads to significant loss of rights in practice.

2M Hukuk Law Office, in the field of inheritance and real estate law;

The transformation of joint ownership into co-ownership,

Among heirs share transfer and partition agreements,

Title deed cancellation and registration lawsuits,

Regarding pre-sale legal risk analysis issues, it provides its clients with preventive and results-oriented legal support.