Tuzla \/ Istanbul | 2M Law Firm | Law No. 6306 and Implementing Regulation

Introduction: “I have an apartment with an enforcement lien, can I not enter the urban transformation process?”

We encounter this question every day. Homeowners whose apartments have an enforcement lien or a provisional attachment order registered on them either remain silent, believing they cannot participate in the process; or opposing neighbors try to sabotage the process by saying, “your apartment has a lien, they can’t make you sign.”

Both situations are legally incorrect.

Rights such as mortgages, provisional attachments, enforcement liens, and usufruct rights on the share subject to sale do not prevent the sale; these rights continue on the sale price, and the price is blocked, and creditors are notified. 2mhukuk

In this article, we examine the legal fate of an apartment burdened with an execution lien during the urban transformation process — within the framework of legal provisions, implementation regulations, and current judicial precedents — with concrete questions and answers.

1. The Basic Rule of Law: Attachment Cannot Prevent

Article 6/1 of Law No. 6306 contains a clear provision that closes the discussion on the matter:

“Any annotation that restricts or prohibits real and personal rights, and the right of assignment, found in the registry of these immovables, continues on the shares. The specified rights and annotations, in the land registry; do not constitute an impediment to the execution of transactions related to consolidation, subdivision, area correction, partition, creation, abandonment, registration, establishment of floor easement, and condominium ownership, and the consent of the owners and interested parties is not required for these transactions.”

The conclusion drawn from this provision is indisputable: Even if your land registry record shows an execution lien, a precautionary attachment, a court injunction, or any combination thereof —

An urban transformation decision can be made,

Demolition can be carried out,

A contract can be signed with the contractor,

Title deed transfer can be made,

Floor easement and condominium ownership can be established.

For all these transactions, the approval of the enforcement office, the court, or the creditor is not required.

2. The Concept of an “Attached Apartment”: Which Situations Fall Under This Scope?In everyday language, an “attached apartment” covers several different legal situations. In all of them, the rule is the same:

Execution lien: An attachment recorded in the land registry by the enforcement office upon the creditor’s request. The debtor cannot make a sale; however, transactions within the scope of urban transformation are an exception to this prohibition.

Provisional attachment: A temporary measure placed on real estate by a court order before a lawsuit is filed. It prevents the transfer of the real estate; however, urban transformation processes cannot be stopped.

Annotation of attachment: An annotation recorded in the declarations section of the land registry, announcing a sale. Its existence does not prevent the process; the buyer is considered to have acquired the real estate along with this annotation.

Decision of sale under Article 134 of the EBL: If the enforcement office has decided to sell but the sale has not yet taken place, the 6306 process may supersede this sale. This point requires particular attention.

3. Steps for an Attached Apartment in the Process

Decision-making meeting: If you secure a simple majority, the structure in question can enter the urban transformation process, even if it is attached or mortgaged; the mortgage or attachment will continue on the newly constructed building under urban transformation. The owner of the attached apartment can attend the meeting, cast a vote, and be involved in the decision.

Contract phase: Contrary to what is often asked, the existence of restrictive registrations such as attachments, mortgages, etc., on the real estate does not prevent the execution of a contract. In the contract, the details of all owners and holders of limited real rights must be included, even if they do not participate in signing.

Demolition phase: Attachments on the real estate cannot prevent demolition. After the building is demolished, floor easement and condominium ownership are ex officio cancelled without requiring consent; the real estate is registered as land in the name of its owners, proportional to their shares.

Attachment rights at the land plot stage: Attachments and annotations in the registry continue precisely on the land share. However, their continuation does not impede operations such as consolidation, parcelling, or the establishment of floor easement.

In the new building: When floor easement is established for the new building, the attachment is transferred solely and exclusively to the independent unit that the indebted owner will receive. Other floor owners are not affected by this burden; they receive their new apartments with clear title.

4. Attached Owner Who Does Not Participate: What Happens During the Auction Process?The land share of an attached apartment owner who does not participate in the process or attend the meeting may be forcibly put up for sale. In this case, the law is extremely clear:

Art. 6/1 of the Law: “Rights such as mortgage, precautionary attachment, attachment, and usufruct on shares to be sold by public auction continue over the sale price after the sale. After the sale, rights and annotations in the title deed record are ex officio cancelled by the title deed directorate upon the Presidency’s request.“

Art. 15/A-5 of the Regulation: “The existence of rights such as mortgage, precautionary attachment, attachment, and usufruct on the share to be sold does not constitute an impediment to the sale. The mentioned rights continue over the sale price after the sale. After the sale, the bank account where the sale price is deposited is blocked to prevent payment to the owner, and the situation is reported to the creditor of rights such as mortgage, attachment, and usufruct, or to the relevant enforcement directorate or court.“

In other words, after the immovable property is sold, the enforcement office collects its receivable not from the title deed, but from the blocked sale price. This process is carried out according to the provisions of enforcement law and the Civil Code; the Presidency is obliged to make notifications ex officio.

5. Does the Attached Apartment Owner Have the Right to Rent Assistance and Other Support?

Rent assistance: Yes. Applications for rent assistance are made entirely independent of encumbrances on the title deed. The documents required for the application are the eviction certificate, ID, and bank IBAN; the existence of an attachment does not affect the application. However, attention should be paid to the 1-year forfeiture period that starts from the eviction.

“Half from Us” grant: Yes. The grant is given per independent unit; an attachment on the property does not eliminate the right to the grant. Since the grant is set off against the construction cost for the contractor, a direct cash payment is not involved; therefore, it is not possible for the enforcement office to seize it.

Interest-subsidized loan: An attachment on the property does not technically constitute an obstacle to a loan application. However, banks may not provide a loan to the owner of an attached property due to their internal policies; this is at the bank’s discretion.

Rent assistance and interest subsidy cannot be used simultaneously (Reg. Art. 16/7). The owner of the attached apartment must also make this choice; both supports cannot be received together.

6. After Transfer to the Contractor: Can the Owner’s Creditor Place an Attachment?

Law Art. 6/10 provides for two different layers of protection in this regard:

Protection against the contractor’s creditors: After the title deed is transferred to the contractor, and until the condominium ownership is established, no attachment or precautionary measure can be applied to these properties due to the contractor’s debts to third parties, except for material and labor receivables related to that construction work.

Owner’s own creditor: This is outside the scope of protection. Foreclosures arising from the owner’s own debts will pass to the new independent section the owner is to receive, even if the title deed has been transferred to the contractor; there is no special protection mechanism for these foreclosures.

6-month time limit: If the floor easement is not established within 6 months from the start of construction, the foreclosure protection ends. It is critically important that this period is stipulated as a binding obligation for the contractor in the contract.

7. Frequently Asked Questions

“I have an enforcement file, can I attend the meeting?” Yes. Being subject to enforcement proceedings does not negate the right to attend and vote at the meeting.

“I don’t want my flat to be sold; can I use the foreclosure against me as a shield?” No. Foreclosure does not prevent an auction sale. The law does not provide for the suspension of the process on this ground.

“Can my creditor object to the sale?” Since anyone whose interest is affected by the sale can file a cancellation lawsuit, holders of real rights such as easements and mortgages on the property, as well as those with rights like foreclosure, will also have the legal standing to sue. However, this lawsuit will not produce a result unless a stay of execution is requested to stop the sale.

“What happens if the enforcement office sells the property during an urban transformation decision?” The sale of the property through enforcement proceedings can proceed in parallel with the urban transformation process. However, if the title deed transfer under scope 6306 has taken place before the enforcement sale, the new buyer is deemed to have acquired it with the foreclosure; the foreclosure passes to the new buyer’s independent section. This scenario creates serious legal complexity and is extremely difficult to manage without the support of an expert lawyer.

“Can my rent assistance funds be seized by enforcement?” Once rent assistance is deposited into a bank account, it can theoretically be seized within the framework of general attachment rules. Therefore, it is recommended to open a separate account for rent assistance and keep it separate from accounts under enforcement proceedings.

8. Practical Risk Map for an Apartment Under Enforcement During Urban Transformation

Why is Expert Lawyer Support Necessary?

Knowing that an apartment subject to enforcement proceedings does not legally pose an obstacle in the urban transformation process is not enough on its own. As 2M Hukuk Law Firm, in the urban transformation consultancy processes we conduct in Tuzla and the Anatolian side of Istanbul, we clearly see this: the rights granted to you by law can become practically unusable if the right step is not taken at the right time.

Struggling with land registry offices is real. Although Law No. 6306 stipulates that consent will not be sought, some land registry offices in Istanbul request the creditor’s approval for properties with enforcement liens. This stance is clearly contrary to the law; however, the process can be stalled without counter-correspondence. An experienced lawyer in Istanbul urban transformation consultancy can instantly draft a legally sound objection letter to quickly overcome this obstacle.

The overlap of enforcement sale and urban transformation process is the most critical risk. If the urban transformation process is simultaneously progressing for a property where the enforcement office has decided to sell, but the sale has not yet taken place — which of these two processes will conclude first profoundly affects the rights of both the owner and the creditor. As a Tuzla lawyer, active legal representation is essential in such overlaps to manage both processes coordinately, establish the correct timing, and prioritize the process that favors the client.

Fair market value assessment is of existential importance for the creditor. If the sale price of an apartment subject to enforcement proceedings, when put up for auction, is determined to be below its real value, it leads to significant financial loss for both the owner and the enforcement creditor. The objection period for the appraisal report is 30 days, and if this period is missed, the right is forfeited. Within the scope of Istanbul urban transformation consultancy conducted by 2M Hukuk Law Firm, an independent CMB appraisal report can be prepared to make an effective objection to the commission’s valuation.

The blocking and payment process requires follow-up. After the public auction is completed, blocking the sale price and notifying the enforcement office is theoretically automatic; however, in practice, it is a long process requiring coordination among the Urban Transformation Directorate, the land registry office, and the enforcement office. If not followed up, the creditor may not receive payment for months, and the owner faces unnecessary legal problems.

Rent assistance can be prevented from being subject to seizure. Once rent assistance is transferred to a bank account, it becomes subject to general seizure rules. Therefore, legal guidance should be sought from the beginning of the process to ensure proper account separation before application, to prevent the application timing from conflicting with the seizure process, and to avoid missing the 1-year forfeiture period that starts from eviction. 2M Hukuk Avukatlık Ofisi, providing services in Tuzla and the Anatolian side of Istanbul, manages rent assistance applications in parallel with contractor agreements and enforcement proceedings.

The risk of precautionary attachment is overlooked during the contract phase. After a construction-for-land-share agreement is signed with the contractor and the title deed is transferred, if the 6-month attachment protection window under Article K.6/10 is not included in the contract as an obligation, the contractor’s own creditors may levy an attachment on the construction. In Istanbul urban transformation consultancy processes, properly incorporating this article into the contract constitutes one of the most fundamental safeguards for landowners.

In conclusion; to fully benefit from urban transformation rights as the owner of an apartment subject to enforcement proceedings, to manage conflicting processes with creditors in the correct order, and to be under simultaneous legal assurance on the title deed, enforcement, and transformation fronts, you can benefit from 2M Hukuk Avukatlık Ofisi’s Istanbul urban transformation consultancy service. Our Tuzla-based office manages urban transformation processes from start to finish in all districts on Istanbul’s Anatolian side — including Pendik, Kartal, Maltepe, Kadıköy, Ümraniye, and Gebze.