1. General Principles and Validity Conditions of the Contract
Real estate brokerage (agency) agreements are not considered valid unless made in writing, pursuant to Article 520 of the Turkish Code of Obligations (TCO) no. 6098. As emphasized in the decision of İzmir 1st Civil Court of Commerce dated 21.12.2021, numbered 2021/460 E. and 2021/1180 K. if there is no written agreement between the parties, it is not possible for the real estate agent to be entitled to a commission fee, even if the sale has been realized. Similarly, in the decision of the 13th Civil Chamber of the Court of Cassation dated 07.11.2018, numbered 2016/2169 E. and 2018/10388 K. it was stated that if the real estate sales contract is not made in an official form (at the land registry office or in the presence of a notary public), the main contract would be invalid, and consequently, the penalty clauses in the brokerage agreement would also be deemed invalid.
2. Entitlement to Fee Upon Completion of Sale
As a rule, the broker only earns a fee if the main contract (sale) is concluded as a result of their activity (TBK art. 521/1).
Direct Sale: In the event of a sale, the real estate agent is entitled to a fee based on the rate agreed in the contract (usually 2% + VAT) (Supreme Court 13th Civil Chamber, 02.04.2014, 2013/30830 E., 2014/9955 K.).
Circumvention of the Real Estate Agent (Exclusion): Even if the buyer purchases the property shown by the real estate agent by circumventing the agent, the right to a fee arises. In the decision of the Supreme Court General Assembly of Civil Chambers dated 24.05.2022, numbered 2020/339 E. and 2022/723 K., it was stated that when a sale is made by circumventing the real estate agent, the penalty clause in the contract (e.g., twice the normal commission) is binding.
Sale to Relatives: Even if the property is sold to a first-degree relative or an in-law of the person to whom the property was shown, a causal link is deemed to have been established, and the fee is earned (Antalya 1st Commercial Court of First Instance, 29.12.2025, 2024/435 E., 2025/949 K.).
3. Entitlement to Fee in Case of Non-Completion of Sale
Even if the sale does not materialize, the real estate agent may demand certain fees, provided there is a contrary provision in the contract:
Withdrawal and Forfeiture: If it has been stipulated in the contract that “the withdrawing party will pay the commission”, the real estate agent is entitled to the fee as long as they fulfill their performance (showing the property, bringing the parties together). In the decision of the 13th Civil Chamber of the Supreme Court of Appeals, dated 13.02.2013, numbered 2012/22850 E. and 2013/3301 K., it was stated that if the buyer withdraws, they are obliged to pay their share of 2% brokerage fee.
Distinction Between Commission Fee vs. Penal Clause: In Supreme Court of Appeals decisions, while the share to be paid solely by the withdrawing party is accepted as a “brokerage fee”, demanding the share that the other party (seller) should pay from the withdrawing party is qualified as a “penal clause”. In this case, if the debtor is not a merchant, the judge must reduce (discount) the penal clause they deem excessive, in accordance with Article 182/last of the TCO (Turkish Code of Obligations). (Supreme Court of Appeals 13th Civil Chamber, 28.11.2017, 2015/36617 E., 2017/11665 K.).
Service Fee and Expenses: According to Article 521/last of the TCO, if stipulated in the contract, the expenses incurred by the real estate agent (appraisal, transportation, etc.) must be paid even if the sale does not materialize. However, if there is no provision in the contract, these expenses cannot be claimed. (Istanbul 5th Civil Court of Commerce, 18.02.2026, 2023/866 E., 2026/179 K.).
4. Exceptional Cases Where the Right to Fee Does Not Arise
Loan Rejection: If the failure of the sale to materialize is not due to the buyer’s fault but due to the bank’s refusal to grant a loan, and if this situation is excluded in the contract, the real estate agent cannot claim a fee. (Supreme Court of Appeals 13th Civil Chamber, 27.01.2016, 2015/35290 E., 2016/1961 K.).
Agent’s Fault: In cases where the real estate agent personally prevented the formation of the contract or acted contrary to their duty of loyalty, a fee cannot be claimed (Court of Cassation 13th Civil Chamber, 04.12.2013, 2013/15350 E., 2013/30200 K.).
Termination of Contract: In cases where the parties implicitly terminated the contract by returning the deposit and the real estate agent did not object to this, the right to commission does not arise (Court of Cassation 13th Civil Chamber, 20.02.2020, 2017/9867 E., 2020/2483 K.).
5. Secondary Sources and Procedural Assessments
The following points are included as secondary context in the presented case summaries:
Competent Court: While Consumer Courts are competent in disputes between real estate agents and consumers (Regional Court of Justice Erzurum 3rd Civil Chamber, 31.10.2024, 2022/1697 E. ), in cases where the parties are not merchants and the transaction does not have a commercial nature, Courts of First Instance (Civil) are competent (Kayseri 1st Commercial Court of First Instance, 27.09.2023, 2023/283 E. ).
Burden of Proof: In promissory notes given in exchange for a deposit, if the reason for the note’s issuance is not specified, the burden of proof rests with the party claiming not to be indebted (Bakırköy 3rd Commercial Court of First Instance, 23.11.2018, 2018/168 E. ).
Indirect Sale: If the immovable property is registered in the name of the buyer’s relatives, such as their daughter-in-law, after being shown by the real estate agent, it does not eliminate the agent’s right to a fee (Court of Cassation 13th Civil Chamber, 21.06.2012, 2012/13128 E. ).
In conclusion; the real estate agent can claim the commission specified in the contract when the sale occurs; however, if the sale does not occur, they can only demand a fee or penalty clause if there is an explicit provision in the contract stating that a fee will be paid in case of “withdrawal/cancellation” and if they are not at fault.
Emlakçı sözleşmesi yazılı değilse komisyon ödemek gerekir mi?
Hayır. Taşınmaz simsarlığı (emlakçılık) sözleşmesi yazılı yapılmadıkça geçerli değildir. Bu durumda satış gerçekleşse bile emlakçı komisyon talep edemez.
Evi almaktan vazgeçersem emlakçıya ücret öder miyim?
Eğer sözleşmede “vazgeçen taraf komisyon öder” şeklinde açık bir hüküm varsa ve emlakçı edimini yerine getirmişse, belirli bir komisyon veya cayma bedeli ödenmesi gerekebilir.
Kredi çıkmazsa veya satış gerçekleşmezse komisyon ödenir mi?
Her durumda değil. Eğer satışın gerçekleşmemesi alıcının kusurundan değilse (örneğin kredi reddi) ve bu durum sözleşmede istisna olarak düzenlenmişse, emlakçı komisyon talep edemez.
Why is Expert Lawyer Support Necessary?
Among the most frequently disputed issues in real estate purchase and sale processes are deposit refunds, withdrawal compensation, and real estate agent commission. Whether the contract is valid, under what conditions a fee will arise, and whether the deposit will be refunded depend entirely on the details of the specific case.
Therefore, working with an Istanbul real estate lawyer or a Tuzla real estate lawyer is of great importance for the correct analysis of the process. Especially within the scope of withdrawal compensation and deposit consultancy;
Identification of invalid contracts
Examination of the legal basis of the real estate agent’s commission
Recovery of unduly paid deposits
Procedures such as the cancellation or reduction of penalty clauses require expertise.
At this point, working with an experienced 2M Hukuk Law Office prevents loss of rights and ensures the process progresses quickly. Furthermore, for local support, working with a Tuzla purchase and sale lawyer, Pendik lawyer, Kurtköy lawyer, or Bayramoğlu lawyer ensures the process is effectively followed up on-site.
The correct answer to frequently searched questions on Google, such as “can a deposit be refunded?”, “when is the real estate agent’s commission paid?”, or “is the withdrawal penalty valid?”, is only possible with a legal assessment of the specific case.
