Is an Apartment Sale Not Made at a Notary Invalid? The “Assignment of Receivables” Exception in Developer Sales

1. Validity Condition in Immovable Property Sales (Official Form)

In Turkish law, the transfer of immovable property is subject to strict formal requirements. The reasons why external (ordinary written) contracts are generally considered invalid are based on the following articles:

Turkish Civil Code (TMK) Art. 706: For contracts aiming at the transfer of immovable property to be valid, they must be drawn up in an official form.

Turkish Code of Obligations (TBK) Art. 237: For the sale and promise of sale of immovable property to be valid, it must be drawn up in an official form.

Land Registry Law Art. 26: It stipulates that official documents regarding the transfer of immovable property must be drawn up at the land registry offices.

Notary Law Articles 60 and 89: States that preliminary real estate sales contracts must be drawn up by notaries in the form of a “notarial deed”.

2. Exception of “Assignment of Receivables” in Contractor Sales 

If the contractor sells the apartments allocated to them under the construction contract in return for land with the landowner, this transaction constitutes a “transfer of personal right”:

TCO Article 183: A creditor may assign their claim to a third party without seeking the debtor’s consent.

TCO Article 184: The validity of the assignment of a claim (temlik) depends on it being made in writing.

Practical Effect: The contractor assigns the “right to demand title transfer” from the landowner to the buyer. Therefore, a formal requirement (notary/land registry) is not sought; a simple written contract between the parties is considered a legally valid assignment.

3. Rule of Honesty and Right to Registration (Supreme Court Exception) 

Even if the contract does not constitute an assignment of claim (e.g., if the contractor is also the landowner), external sales may be recognized as valid under certain conditions:

TCC Article 2 (Rule of Honesty): Everyone must observe the rules of honesty when exercising their rights. The legal order does not protect the manifest abuse of a right.

YİBK dated 30.09.1988 (1987/2 E., 1988/2 K.): In immovables subject to condominium ownership, if the buyer has fully paid the price and taken delivery of the immovable and started using it, the seller’s refusal to transfer the title deed based on a formal deficiency is found to be contrary to the rule of good faith. In this case, the buyer can acquire ownership by filing a “Title Deed Cancellation and Registration” lawsuit.

4. Points to Consider in Practice

Contractor’s Performance: For the buyer to be able to demand a title deed from the landowner based on the contractor, the contractor must have fulfilled their obligation to complete the construction (at the rates specified in the contract) towards the landowner.

Right of Refund: If the contract is deemed invalid and there is no possibility of registration, the buyer may demand the money paid back in accordance with the provisions of “Unjust Enrichment”. In this case, the amount to be refunded is calculated by adjusting the purchasing power of the money to its current value, in accordance with the principle of “restorative justice”.

Statute of Limitations: In such disputes, the general statute of limitations (TBK art. 146) is 10 years.

1. Formal Requirement in Immovable Property Sales and General Rule

In Turkish law, the validity of contracts aiming for the transfer of immovable property ownership is subject to a specific formal requirement. Pursuant to Article 706 of the Turkish Civil Code (TMK), Article 237 of the Turkish Code of Obligations (TBK), Article 26 of the Land Registry Law, and Articles 60-89 of the Notary Law, contracts providing for the transfer of immovable property ownership must be made in an official form (in the form of regulation at land registry directorates or notaries public). This formal requirement is a condition of validity and relates to public order. External (ordinary written) sales contracts not made in an official form are, as a rule, legally invalid and do not create an obligation for the parties to transfer ownership (Court of Cassation 3rd Civil Chamber-2021/23-2021/10735 -02.11.2021; Court of Cassation 7th Civil Chamber-2021/2263-2023/1513 -14.03.2023).

2. The Exception of “Assignment of Claim” in Contractor Sales If the contractor (developer) sells independent sections, which were agreed to be left to them under the “Construction Contract in Return for Land Share” made with the landowner, to third parties with an ordinary written contract, this transaction is qualified by the Court of Cassation not as a “real estate sale,” but as an “assignment of claim.”

Legal Nature: The contractor transfers the “right to demand title deed transfer” (personal right) from the landowner to the buyer. Pursuant to Articles 183 and 184 of the TBK, a formal requirement is not sought for the validity of the assignment of claim; it is sufficient that it is made in writing (Court of Cassation 3rd Civil Chamber-2025/1605-2025/5252 -05.11.2025; Konya 4th Civil Court of Commerce-2020/314-2022/584 -20.10.2022).

Application: The transfer by the contractor of their personal right acquired from the landowner to a third party constitutes a “contractual (consensual) assignment” and this contract is legally valid (Court of Appeals 14th Civil Chamber-2011/4616-2011/6081 -04.05.2011).

3. Rule of Honesty and Right to Registration (Exception of the YİBK dated 30.09.1988)

 Even if the contract does not constitute an assignment of receivable (for example, in the case of a “build-and-sell” contractor who is also the landowner), an exception has been introduced for external sales by the decision dated 30.09.1988, numbered 1987/2 E., 1988/2 K., of the Grand General Assembly for the Unification of Jurisprudence of the Court of Appeals. Accordingly;

The immovable property being subject to the Condominium Law,

The buyer having fully paid the sale price,

The immovable property having been delivered to the buyer and the buyer using it as an owner,

In cases where the seller avoids title transfer by relying on a formal deficiency; The judge, by observing the rule of honesty in Article 2 of the Turkish Civil Code (TCC), may accept the lawsuit for cancellation and registration of title. The seller’s assertion of a formal deficiency at this stage is considered “abuse of right” (General Assembly of Civil Chambers-2024/43-2024/76 -07.02.2024; Court of Appeals 6th Civil Chamber-2022/2325-2023/1662 -04.05.2023).

4. Conditions Required for Registration and the Contractor’s Performance 

For the buyer to be able to request title registration from the landowner or the contractor based on the provisions of the assignment of receivables, it is a condition that the contractor must have fulfilled their obligations towards the landowner.

Completion of Construction: The contractor must complete the construction in accordance with zoning regulations, the project, and technical rules, bringing it to a level where an occupancy permit can be obtained. If the contractor fails to fulfill their obligation, the buyer cannot demand registration from the land owner; however, they may claim compensation from the contractor (Istanbul Regional Court of Justice 7th Civil Chamber-2017/890-2017/1307 -19.10.2017; Supreme Court of Appeals 3rd Civil Chamber-2014/8522-2014/13229 -14.10.2014).

Joint Action: If more than one contractor is jointly carrying out the construction, all contractors may need to sign the contract for the assignment to be valid (Supreme Court of Appeals 3rd Civil Chamber-2023/4663-2024/2968 -10.10.2024).

5. Restitution and Statute of Limitations in Case of Contract Invalidity

If the external sales contract is not within the scope of assignment of receivables or if the registration conditions have not been met, the contract is considered invalid.

Unjust Enrichment: Due to an invalid contract, parties may reclaim what they have given under the provisions of unjust enrichment. The amount to be returned is calculated by adjusting the purchasing power of the money to its current value, in accordance with the principle of “compensatory justice” (Supreme Court of Appeals 3rd Civil Chamber-2021/23-2021/10735-02.11.2021).

Statute of Limitations: In such disputes between the contractor and the buyer, a general statute of limitations period of 10 years is applied in accordance with Article 146 of the TCO (Turkish Code of Obligations). The period begins from the date the receivable becomes due and payable (Supreme Court of Appeals 13th Civil Chamber-2017/9986-2018/2313 -22.02.2018).

Result: Purchasing an apartment from a contractor with an external written contract is valid under the provisions of “assignment of receivables” as it constitutes an assignment of the contractor’s claim against the landowner. The buyer can acquire ownership by filing a lawsuit for cancellation and registration of title deed, provided the contractor completes the construction obligation. In cases where registration is not possible, the current value of the amount paid can be claimed back in accordance with the principle of equitable justice.

Frequently Asked Questions (FAQ)

Why must real estate sales be conducted before a notary or at the land registry office?
In Turkish law, the transfer of real estate ownership is subject to strict formal requirements. According to Article 706 of the Turkish Civil Code (TMK), Article 237 of the Turkish Code of Obligations (TBK), and Article 26 of the Land Registry Law, contracts providing for the transfer of real estate are valid only when made in a formal manner (in the form of an “official deed” at the land registry office or before a notary). This condition is a validity requirement and pertains to public order.

Is the ordinary (handwritten/signed) contract I made with the contractor entirely invalid?
As a rule, real estate sales contracts that do not comply with the official form are invalid. However, the purchase of an apartment from a contractor is often subject to an exception: if the transaction is characterized not as a “real estate sale” but as an “assignment of receivables,” an ordinary written contract is also considered valid.

What does “assignment of receivables” mean, and what is its relevance to purchasing an apartment?
When a contractor sells apartments allocated to them under a construction contract in return for a land share with the landowner, they are not actually transferring the real estate itself, but rather their “right to demand the transfer of the title deed” (their personal right) from the landowner. According to Articles 183 and 184 of the Turkish Code of Obligations (TBK), no formal requirement is sought for the assignment of receivables; a written form is sufficient. For this reason, an ordinary written contract made with the contractor can be considered a legally valid assignment.

Does the situation change if the contractor is also the landowner (build-and-sell developer)?
Yes. If the contractor is also the landowner, the assignment exception does not apply as there is no “receivable” to be assigned. In this case, a different protection comes into play: the good faith rule exception in the Supreme Court Unification of Jurisprudence Decision dated 30.09.1988.

Under what conditions does the Supreme Court Unification of Jurisprudence Decision dated 30.09.1988 protect me?
According to this jurisprudence, if four conditions are met concurrently, the judge may accept the cancellation of title deed and registration lawsuit: the property being subject to the Condominium Law, the buyer having fully paid the price, the property having been delivered and the buyer using it as an owner, and the seller refusing to transfer title deed solely based on a formal deficiency. In such a case, the seller’s assertion of a formal deficiency is considered an “abuse of right” (Turkish Civil Code art. 2).

I paid the price and am using the apartment, but the contractor/landowner is not giving the title deed. What can I do?
If the conditions are met, you can gain ownership by court order by filing a “cancellation of title deed and registration” lawsuit. Against whom the lawsuit will be filed (the contractor, the landowner, or both) and on what legal grounds will vary according to the chain of contracts in the specific case.

If the contractor hasn’t finished the construction, can I still get the title deed?
No. For the buyer to demand the title deed from the landowner, the contractor must have fulfilled their obligation to the landowner, meaning bringing the construction to a level where an occupancy permit can be obtained in accordance with the project and zoning regulations. If the contractor has not completed their performance, the buyer cannot demand registration, but can only claim compensation from the contractor.

What should I pay attention to if more than one contractor is carrying out the construction?
In cases where the construction is carried out by multiple contractors (joint contractors), all contractors’ signatures may be required on the contract for the assignment to be valid. A contract signed by a single partner may cause problems.

What happens to the money I paid if the contract is invalidated?
If registration is not possible and the contract is deemed invalid, you can request a refund of the amount you paid based on the provisions of unjust enrichment. The amount to be refunded is calculated not according to the present value of the money, but by adapting it to the current purchasing power of the money, in accordance with the principle of “equalizing justice”; this is an important protection against inflation.

What is the statute of limitations for these disputes?
According to Article 146 of the Turkish Code of Obligations (TBK), the general statute of limitations of 10 years applies. The period begins to run from the date the receivable becomes due (i.e., becomes demandable).

What should I pay attention to when buying to ensure it’s safer?
If possible, the safest way is to make the sale with a “pre-sale contract” through a notary and to register an annotation in the land registry. In an ordinary contract, examining the construction contract in return for land share, clarifying the independent sections the contractor is entitled to, documenting payments, and, if possible, informing the landowner about the transaction will reduce future evidentiary problems.

Why is Expert Legal Support Necessary? — 2M Law Office

Purchasing an apartment from a contractor with an external contract is a much more fragile transaction legally than it appears on the surface. The same contract can be either “a valid assignment of receivables” or “an invalid real estate sale,” depending on whether the contractor is the land owner, the level of construction completion, whether the property has transitioned to condominium ownership, and the signatures in the contract chain. Making this distinction incorrectly can lead to the rejection of the lawsuit filed and being forced to settle for only a refund instead of ownership after a years-long trial.

2M Hukuk Avukatlık Bürosu, operating in the fields of real estate, condominium ownership, and urban transformation law in Istanbul’s Anatolian Side (Tuzla, Pendik, Kartal, Maltepe) and Kocaeli region, provides support to its clients during apartment purchase processes from contractors on the following points: examining the construction contract in return for land share and the external sales contract together to determine if the transaction constitutes an assignment of receivables, evaluating whether the contractor has fulfilled their obligations to the landowner, initiating a title deed cancellation and registration lawsuit with the correct parties and based on the correct legal grounds, calculating the refund request based on the principle of compensatory justice in cases where registration is not possible, and structuring the contract for clients who are still in the purchasing phase to minimize risks.

Basing a real estate investment worth hundreds of thousands of liras solely on an ordinary contract carries the risk of completely losing title deed rights in the future. Whether it’s before signing a contract to buy a new apartment, or because the contractor or landowner avoids transferring the title deed, seeking advice from an expert lawyer before starting the process is the safest way to prevent both time and rights from being lost.