1. Requirement of Official Form and Invalidity in Immovable Property Sale Contracts
As consistently emphasized in judicial decisions, contracts for the sale of registered immovables must be made in official form (Turkish Civil Code art. 706, Turkish Code of Obligations art. 237, Title Deed Law art. 26, Notary Law art. 60). Contracts drawn up without complying with this rule, referred to as “ordinary written” or “external” contracts, are legally invalid. An invalid contract does not create any rights or obligations for the parties.
The 13th Civil Chamber of the Court of Cassation, in its decision dated 22.01.2015, numbered 2014/14864 E. and 2015/913 K. clearly stated that real estate purchase and sale contracts not made in official form are null and void.
The 3rd Civil Chamber of the Court of Cassation, in its decision dated 15.03.2021, numbered 2020/11102 E. and 2021/2709 K. ruled that due to the invalidity of contracts made without complying with the official form, the parties may demand the return of what they have given, in accordance with the provisions on unjust enrichment.
2. Withdrawal Penalty and the Legal Status of the Down Payment
Stipulations agreed upon in connection with an invalid principal contract, such as withdrawal penalties, contractual penalties, or earnest money (deposit), are considered “ancillary clauses” and become null and void with the invalidity of the principal contract. In this context, even if the contract contains provisions stating that “the deposit will not be refunded in case of withdrawal” or “a withdrawal penalty will be paid,” these provisions do not bind the parties unless the contract is executed in a formal manner.
The 13th Civil Chamber of the Court of Cassation, in its decision dated 09.11.2015, numbered 2014/39722 E. and 2015/32292 K., stated that a withdrawal penalty cannot be claimed based on an invalid contract, and the paid amount can be requested back according to unjust enrichment rules.
The 3rd Civil Chamber of the Istanbul Regional Court of Justice, in its judgment dated 24.09.2020, numbered 2018/1295 E. and 2020/966 K., emphasized that the contractual penalty (withdrawal penalty), which is an ancillary to the principal claim, cannot be demanded due to an invalid contract.
The 13th Civil Chamber of the Court of Cassation, in its decision dated 29.09.2014, numbered 2014/6100 E. and 2014/29645 K., stated that a contractual provision regarding the non-refundability of earnest money paid to a real estate agent does not bind the parties due to the invalidity of the contract, and that a refund is possible.
3. Payments Made to the Real Estate Agent (Broker) and Commission Fee
Contracts made with a real estate agent are considered “real estate brokerage” (agency). In some cases, it is debated whether the real estate agent is entitled to their service fee even if the sale does not materialize.
The 13th Civil Chamber of the Supreme Court, in its decision dated 19.03.2013, numbered 2013/301 E. and 2013/6796 K.; stated that regarding the return of the down payment given to the real estate agent, it should also be examined whether the real estate agent is entitled to the brokerage fee.
Istanbul 18th Civil Court of Commerce, in its decision dated 23.09.2019, numbered 2016/716 E. and 2019/772 K.; ruled that even if the buyer withdraws, the real estate agent might be entitled to the commission fee based on the provision in the contract, and therefore, the down payment might not be returned.
Bakırköy 4th Civil Court of Commerce, in its decision dated 31.05.2021, numbered 2020/56 E. and 2021/529 K.; assessed that in cases where the real estate agent fulfilled their performance and the buyer unjustly withdrew, the withdrawal fee might not be refundable.
4. Liability in Request for Refund
In a request for the return of the paid down payment or withdrawal fee, who the money was paid to and the parties to the contract are important.
The 13th Civil Chamber of the Supreme Court, in its decision dated 07.11.2012, numbered 2011/21113 E. and 2012/25067 K.; confirmed that money paid to a real estate agent can be reclaimed under the provisions of unjust enrichment due to the invalidity of the sale.
The 3rd Civil Chamber of the Supreme Court, in its decision dated 10.11.2016, numbered 2015/16368 E. and 2016/12689 K.; stated that even if the down payment was made to the real estate agent, the seller could also be held responsible for the return of this amount due to an invalid contract.
5. Secondary Source Assessments
The decisions presented as secondary sources provide additional context regarding the fate of withdrawal clauses in ordinary written contracts:
3rd Civil Chamber of the Supreme Court (2022/5945 E., 2023/1681 K.) and General Assembly of Civil Chambers of the Supreme Court (2020/551 E., 2022/1147 K.) emphasized in their decisions that provisions in informal contracts, such as “the party who withdraws cannot get the down payment back,” are invalid due to the lack of official form of the main contract, and therefore, the amounts paid must be returned under unjust enrichment.
Ankara 14th Civil Court of Commerce (2023/402 E., 2023/798 K.) stated in its decision that unless it is explicitly stipulated that the payment is a withdrawal penalty, the money given will be considered an earnest money deposit and must be returned in any case.
In the case of the Istanbul Anatolian 7th Civil Court of Commerce (2018/901 E., 2019/107 K.), it is seen that despite the existence of defenses stating that the down payment would not be refunded if the buyer withdrew, the court issued a decision of lack of jurisdiction and did not make a final assessment on the merits.
Conclusion: The vast majority of judicial decisions accept that due to the invalidity of ordinary written contracts for the sale of real estate, the withdrawal penalty or down payment provisions amounting to 1 million TL agreed upon based on these contracts will also be invalid. In this case, the person who withdraws from buying the house can demand the money paid back under the provisions of unjust enrichment. However, if the contract made with the real estate agent is considered an independent “service/brokerage contract” and it is determined that the real estate agent has fully performed their service, the real estate agent’s claims regarding the commission fee may be reserved.
Tapuda yapılmayan taşınmaz satış sözleşmesi geçerli midir?
Hayır. Türk Medeni Kanunu ve ilgili mevzuat gereği taşınmaz satışlarının resmi şekilde (tapu müdürlüğünde) yapılması zorunludur. Aksi halde yapılan adi yazılı sözleşmeler geçersizdir ve taraflara hak sağlamaz.
Geçersiz sözleşmede verilen kapora geri alınabilir mi?
Evet. Geçersiz sözleşmeye dayanılarak ödenen kapora veya cayma bedeli, “sebepsiz zenginleşme” hükümleri kapsamında geri talep edilebilir.
“Vazgeçen kaporayı geri alamaz” hükmü geçerli midir?
Hayır. Asıl sözleşme geçersiz olduğu için bu tür cezai şart ve kapora hükümleri de geçersiz sayılır ve bağlayıcı olmaz
Why is Expert Lawyer Support Necessary?
Real estate buying and selling processes contain technical details that can lead to significant loss of rights, especially concerning invalid contracts, earnest money refunds, and real estate agent commissions. At this point, obtaining support from an Istanbul real estate lawyer or a buying and selling lawyer is of great importance.
Specifically:
Determining whether the contract is valid
Proper management of the process for recovering earnest money and cancellation fees
Separate evaluation of the contract made with the real estate agent
Correct determination of the seller’s and broker’s liability
These matters require expertise. Therefore, obtaining support from a Tuzla lawyer from the outset of the process and working with the experienced 2M Hukuk Law Office plays a critical role in preventing potential financial losses.
