1. Introduction and Legal Framework of the Dispute

When buying a house or land, the process often begins at a real estate agency. The property is liked, a price is agreed upon, and the real estate agent asks for a certain amount as a deposit (kapora) “to prevent the house from being given to someone else.” The document signed in exchange for this payment is sometimes called an “external sales contract,” sometimes a “reservation form,” and sometimes a “prepayment protocol.” When the sale does not materialize at the land registry, the same question arises: Is the real estate agent obliged to return this money?

In practice, buyers are often told, “You’re the one who backed out, the deposit is forfeited.” However, the established approach of court decisions is different. A real estate agent collecting a deposit based on an external sales contract not returning this amount is not considered legally valid; the return of the deposit is mandated within the framework of non-compliance with the legal form requirement in real estate sales and the provisions of unjust enrichment.

Generally, we had previously discussed under what circumstances deposits are refunded in our article Is the Deposit Given in Purchases and Sales Refunded? This article, however, specifically focuses on situations where the real estate agent received the deposit and did not refund it: the real estate agent’s own defenses, offsetting commissions, determining the defendant based on who received the money, and the new payment system entering into force in 2026.

Are kapora (earnest money), commitment fee, and cancellation fee the same thing?

There is no regulation under the name of “kapora” (earnest money) in the Turkish Code of Obligations. In practice, earnest money is characterized in the concrete case either as confirmation money (TBK m. 177) or as forfeiture money (TBK m. 178). This distinction is important in cases where a valid contract exists. However, as we will see below, if the main contract for the sale of immovable property has not been made in the official form, the practical importance of the distinction largely disappears; because both types of payment attached to an invalid contract must be refunded.

The changing landscape in 2026: secure payment system

With the amendment published in the Official Gazette dated 29/4/2026 and numbered 33238 to the Regulation on Immovable Property Trade, additional article 1 titled “Payment System” was added. Accordingly, if part or all of the payment in immovable property sales is made by cash, wire transfer, or electronic fund transfer, the sale price will be paid through a payment system that ensures the simultaneous transfer of ownership of the immovable property and the price. Paragraph 10 of temporary article 1 of the Regulation stated that the system was not mandatory until 1/7/2026 and authorized the Ministry to extend this date by up to three months. The Ministry of Trade announced on June 26, 2026, that the mandatory implementation date was set as October 1, 2026.

This regulation is poised to significantly change the “first deposit, then title deed” habit. However, the fifth paragraph of the supplementary article stipulates that the Ministry will determine the procedures and principles regarding the system’s operation and sales that will not be included in the system. As of the date this article was prepared, it is not yet clear in publicly available sources how down payments made to real estate agents or sellers before the title deed day will be handled within the system. It would be advisable to check the Ministry’s current announcements before making any down payments. It should also be noted that the new system does not alter the following rules regarding the refund of deposits paid in the past.

2. Legal Nature and Invalidity of External Real Estate Sale Contracts

In Turkish law, contracts aiming for the transfer of real estate ownership and preliminary real estate sales contracts are subject to strict formal requirements. The relevant provisions are as follows:

• Turkish Civil Code No. 4721 Art. 706/1: “For contracts aiming for the transfer of real estate ownership to be valid, they must be drawn up in a formal manner.”
• Turkish Code of Obligations No. 6098 Art. 237: “For a real estate sale to be valid, the contract must be drawn up in a formal manner. Preliminary real estate sales contracts, repurchase, and purchase contracts are not valid unless drawn up in a formal manner. The validity of a pre-emption contract depends on it being made in written form.”
• Land Registry Law No. 2644 Art. 26 and Notary Law No. 1512 Arts. 60 and 89 have granted the authority to officially draft documents to land registry directorates and notaries.

For this reason, informal real estate sales contracts not made in the presence of an official, but prepared as ordinary written documents between a real estate agent or the parties, are absolutely null and void. Absolute nullity is observed ex officio by the judge and does not impose any right or obligation arising from the contract on the parties. Judicial decisions clearly demonstrate this point:

Istanbul Regional Court of Justice 3rd Civil Chamber, 29.05.2025, E. 2025/183, K. 2025/1441:

“If a contract for the sale of real estate registered in the land registry is not made in an official form, it is legally invalid according 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 Article 60 of the Notary Law, and since there is no valid contract, the rights and obligations of the parties based on the contract will not exist.”

Court of Cassation 3rd Civil Chamber, 10.09.2025, E. 2025/499, K. 2025/3966:

“Any contract providing for the transfer of ownership in registered real estate must be made in an official form. This is a condition of validity (Article 706 of the Turkish Civil Code No. 4721; Article 237 of Law No. 6098; Article 60/3 of the Notary Law; Article 26 of the Land Registry Law). Real estate sales contracts not made in official form are legally invalid and, unlike valid contracts, do not create rights and obligations for their parties.”

Ankara Regional Court of Justice 24th Civil Chamber, 22.03.2023, E. 2022/36, K. 2023/557:

“Contracts not made in the official form are invalid 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”

Supreme Court of Appeals 3rd Civil Chamber, 16.05.2023, 2022/5144 E., 2023/1475 K.:

“The sale of immovables registered in the land registry must be made in an official form according to Articles 706 of the Turkish Civil Code (TMK), 237 of the Turkish Code of Obligations (TBK), 26 of the Land Registry Law, and Articles 60 and 89 of the Notary Law, and sales contracts made privately are legally invalid”

Istanbul Anatolian 2nd Civil Court of Commerce, 12.06.2024, 2022/1044 E., 2024/488 K.:

“The contract for the sale of registered immovables must be drawn up in an official form. According to Article 706 of the Turkish Civil Code No. 4721, Article 237 of the Turkish Code of Obligations No. 6098, Article 26 of the Land Registry Law No. 2644, and Article 60 of the Notary Law No. 1512, contracts for the sale of registered immovables are legally invalid if they are not made in an official form”

Bakırköy 7th Civil Court of Commerce, 06.11.2025, 2023/840 E., 2025/964 K.:

“According to Article 237/II of the Turkish Code of Obligations (TBK) No. 6098, a preliminary contract for the sale of immovable property is not valid unless it is drawn up in an official form” and “Contracts established without complying with the prescribed form do not produce legal effect”

Supreme Court of Appeals 13th Civil Chamber, 24.04.2014, 2013/32050 E., 2014/13222 K.:

“The private contract for the sale of immovable property is legally invalid because it was not made in an official form.”

Does the outcome change if the document’s name is “reservation form” or “pre-protocol”?

No. What is determinative is not the title of the document, but its content. If the document indicates that a specific property will be sold or is committed to be sold for a specific price, it is subject to the official form requirement, regardless of its name. In the decision of the Istanbul Regional Administrative Court, 3rd Civil Chamber, numbered 2024/1199 E., 2025/553 K., detailed below, the external document drafted under the name “reservation form” was also deemed invalid. Since most ready-made forms used in real estate agencies are of this nature, the title of the document in the buyer’s possession does not negate the right to a refund.

3. Principle of Accessory Nature and the Fate of Provisions Regarding the Non-Refundability of Deposits

A deposit (earnest money or withdrawal payment) is an accessory (ancillary) right that serves to strengthen the principal debt. If the principal contract is invalid due to a lack of official form, the accessory clauses and penalty clauses dependent on it also automatically become invalid. This is why the real estate agent’s defense that “the deposit clause is a separate agreement” does not find acceptance.

Accessory Nature

The 3rd Civil Chamber of the Court of Cassation stated the following reasoning in its decision dated 10.09.2025, numbered 2025/499 E., 2025/3966 K.:

“The earnest money (deposit) paid in advance by one of the parties to the other, like a penalty clause, is an accessory condition that serves to strengthen the debt; in this respect, since the main contract is not valid, the accessory condition is also invalid. The refund of the earnest money (deposit) paid due to an invalid contract can be claimed under the provisions of unjust enrichment.”

A similar assessment was also made in the decision of Bakırköy 7th Civil Court of Commerce, dated 06.11.2025, numbered 2023/840 E., 2025/964 K. However, in the judgment of Sakarya Civil Court of Commerce regarding vehicle sales, dated 20.10.2022, numbered 2022/438 E., 2022/1426 K., the same principle was adopted with the following words:

“According to equivalent Supreme Court decisions, the advance payment (earnest money/deposit) or withdrawal fee paid by one of the contracting parties to the other beforehand is an ancillary condition that serves to reinforce the debt, similar to a penalty clause; therefore, if the main contract is not valid, the ancillary condition is also invalid. The return of the advance payment (deposit) made due to an invalid contract can be requested in accordance with the provisions on unjust enrichment.”

The Sakarya decision pertains to vehicle sales; however, the principle applies with the same logic to every sale subject to a formal written agreement. Therefore, it can be used as a supporting decision in real estate cases.

Invalidity of the Withdrawal Fee

The 3rd Civil Chamber of the Supreme Court made the following determinations in its judgment dated 30.05.2023, numbered 2022/5945 E., 2023/1681 K.:

“Contracts not made in a formal manner are legally invalid and do not create rights and obligations for the parties as valid contracts do”, “if the contract is invalid for any reason, the withdrawal fee can no longer be mentioned.”, “Even if the contract is invalid, if a withdrawal fee has been paid, the received withdrawal fee must be returned according to the provisions on unjust enrichment” and “Since the earnest money (deposit) is an ancillary (subsidiary) right, if the main contract to which it is attached is not valid, the earnest money, which is an ancillary right, will also not be valid.”

This decision is important because it shows that the outcome does not change even when the earnest money is agreed upon as a withdrawal penalty. The phrase “this earnest money is a withdrawal penalty within the meaning of Article 178 of the Turkish Code of Obligations” often seen in real estate agency forms, is ineffective unless the contract is made in a formal manner.

Invalidity of provisions regarding the forfeiture of earnest money

Provisions in the contract stating that the buyer cannot reclaim the earnest money if they withdraw are not binding due to the invalidity of the contract. In the decision of the Istanbul Regional Court of Justice, 3rd Civil Chamber, dated 25.02.2025, no. 2024/1199 E., 2025/553 K., it was determined that “since the contract is invalid, the provision regarding the non-refund of the money received is also invalid,” and it was stated that the external document under the name of a reservation form was invalid.

In the decision of the 3rd Civil Chamber of the Court of Cassation, dated 15.03.2021, no. 2020/11102 E., 2021/2709 K., it was also stated that the following provision in the contract could not be applied due to an invalid sale:

“After this contract is signed, according to Article 156/2 of the Code of Obligations, if the BUYER, one of the parties, withdraws from purchasing this property, they will not be able to reclaim the earnest money they paid. If the SELLER withdraws from selling this property, they will refund the earnest money and pay additional compensation equal to the amount of the earnest money”

This article is a standard provision that has appeared in almost identical words in ready-made forms of real estate agencies for years. The value of the decision comes from this: even if this phrase is found in the form presented to the buyer, the return of earnest money cannot be prevented unless the sale is made in a formal manner.

Prohibition of demanding penalty clauses and positive damages

Due to the invalidity of the external contract, a penalty clause cannot be claimed either. In the decision of the 3rd Civil Chamber of the Supreme Court dated 28.05.2025, numbered 2024/4358 E., 2025/3100 K., it was ruled that “a penalty clause cannot be claimed based on an invalid contract, and since the contract is invalid, the plaintiff cannot claim positive damages.” In the decision of the 3rd Civil Chamber of the Supreme Court dated 29.09.2025, numbered 2025/1032 E., 2025/4383 K., it was also emphasized that “a penalty clause cannot be claimed based on a contract that is absolutely void due to not being drawn up in an official form.”

This rule works in two ways. The real estate agent or seller cannot demand an additional fee from the buyer under the name of “penalty clause” or “withdrawal compensation”. Similarly, if the seller withdraws, the buyer cannot claim “double the deposit” or the cost of the lost opportunity (positive damages) based on the invalid contract; their claim is primarily for the return of what they paid (with interest or current value calculation as explained below).

4. Principle of Unjust Enrichment and Scope of Deposit Refund

Since invalid contracts do not create a contractual debt between the parties, the parties can request the return of what they have given within the framework of the rules of unjust enrichment (Turkish Code of Obligations Art. 77 et seq.). In accordance with Article 77 of Law No. 6098:

“Whoever is enriched from another’s assets or labor without a just cause is obliged to return this enrichment. This obligation arises especially when the enrichment is based on a cause that is invalid, has not materialized, or has ceased to exist.”

In this regard, the established principle of the judicial authorities is that everyone is obliged to return what they have received:

• Supreme Court, 13th Civil Chamber, 14.03.2018, Principle No. 2018/1207, Decision No. 2018/3075: “Pursuant to an unfulfilled external and invalid sales contract, everyone is obliged to return what they have received.”
• Supreme Court, 13th Civil Chamber, 24.04.2014, Principle No. 2013/32050, Decision No. 2014/13222: “In invalid contracts, the parties must return what they have received.”
• Istanbul Regional Court of Justice, 3rd Civil Chamber, 29.05.2025, Principle No. 2025/183, Decision No. 2025/1441: “Based on an invalid contract, the parties are obliged to return what they have received according to the provisions of unjust enrichment” and “Since the parties cannot demand the performance of the act based on an invalid contract, but are obliged to return what they have received due to unjust enrichment, the defendant’s appeal objections regarding the merits are unfounded.”
• Ankara Regional Court of Justice, 24th Civil Chamber, 05.12.2024, E. 2022/2217, K. 2024/1595: “In an invalid contract, everyone takes back what they gave, and compensation for damages incurred due to an invalid contract cannot be claimed” and “Invalid contracts do not create rights and obligations for their parties, unlike valid contracts. In this situation, parties may request back what they gave according to the rules of unjust enrichment”
• İzmir Regional Court of Justice, 13th Civil Chamber, 07.04.2026, E. 2024/2307, K. 2026/668: “Due to an invalid contract, everyone demands back what they gave.” Furthermore, the decision ruled for execution denial compensation, accepting that the claim for the return of the down payment (earnest money) is liquid when the real estate for which the down payment was given is sold to a third party.

Practical significance of the İzmir Regional Court of Justice decision: enforcement proceedings and denial compensation

The decision of İzmir Regional Court of Justice, 13th Civil Chamber, is important for creditors considering initiating direct summary execution proceedings for the return of a down payment. The claim being considered liquid, meaning its amount is certain and knowable by the debtor, is a condition for the debtor who unjustly objects to the proceedings to be ordered to pay execution denial compensation in the lawsuit for the annulment of the objection. In a case where the down payment amount is proven by a receipt and the real estate has been sold to someone else, the debtor’s defense of “the claim was uncertain” is weakened by this decision.

Principle of balancing justice and interest in the refund calculation

When a deposit (kapora) can be retrieved months or even years after it was paid, the loss of value due to inflation becomes a serious issue. In the decision of the 3rd Civil Chamber of the Court of Cassation, dated 28.05.2025, numbered 2024/4358 E., 2025/3100 K., it was ruled that “it is appropriate to rule for the amount the 7,000.00 TL deposit reached on the date of the lawsuit, in accordance with the principle of equitable justice, based on the expert report used as the basis for the judgment.” In the decision of the 3rd Civil Chamber of the Court of Cassation, dated 29.09.2025, numbered 2025/1032 E., 2025/4383 K., it was decided that “it is appropriate to rule for the interest accrued on the deposit paid by the plaintiff under the informal sales contract, between the date of the lawsuit and the date of payment.”

As seen, the Court of Cassation has approved two different calculation methods: adjusting the deposit amount to its value on the date of the lawsuit, or calculating interest from the payment date. Which method will be requested should be determined before filing the lawsuit, based on the payment date, amount, and the specifics of the case; if this preference is not explicitly stated in the petition, the buyer may have to settle for only the nominal amount.

Statute of Limitations: TBK art. 82

The right to claim arising from unjust enrichment, pursuant to TBK art. 82, is subject to a statute of limitations of two years from the date the right holder learns of their right to reclaim, and in any case, ten years from the date the enrichment occurred. The shorter period should be carefully monitored from the moment the real estate agent explicitly refuses the refund or when it becomes certain that the sale will not take place.

5. Evaluation of the Real Estate Agent’s Conduct of Not Refunding the Deposit and Their Liability

The real estate agent’s retention of the deposit received based on an external sales contract or their refusal to refund it is evaluated within the framework of the following legal principles. The decisive question is: Who actually received the money?

A. Cases where the deposit is received by the real estate agent and the obligation to refund

If the real estate agent has personally collected the deposit, they are obliged to refund the amount to the buyer in case the contract is invalid or the sale does not take place. The 3rd Civil Chamber of the Court of Cassation made the following determinations in its judgment dated 09.01.2025, numbered 2024/469 E., 2025/171 K.:

“upon withdrawal from the contract, the deposit must be refunded, and the defendant company, being a party to the contract, is obligated to hold this deposit and refund it to the relevant party depending on whether the contract is formed or not” and “the defendant’s acceptance that the earnest money was received by the defendant, and in this case, being obliged to return the earnest money received”

Real estate agent’s defense of “I transferred the money to the seller”: The real estate agent’s claim that they transferred the deposit to the seller does not bind the buyer. In the same decision (2024/469 E., 2025/171 K.), it was explicitly stated that “the defendant’s defense claiming to have refunded the deposit to the seller constitutes an internal relationship between the seller and themselves and does not bind the plaintiff”. The real estate agent may seek recourse from the seller for the amount they believe they paid to the seller; however, this does not eliminate their obligation to refund the buyer.

Joint liability with the seller: If the real estate agent has brokered the sale, received the payment with a receipt, and acted in cooperation with the seller, they are held jointly liable with the seller. The 3rd Civil Chamber of the Supreme Court reached the following conclusion in its decision dated 08.06.2023, numbered 2023/305 E., 2023/1848 K.:

“Although the defendant …, who is the real estate agent, is not a party to the sales contract; it is understood that they brokered the sales transaction between the parties, received the payments made under the contract with a receipt, and acted in cooperation with the other defendant seller …, who stated that the plaintiff had made a down payment and that the share could be delivered if the remaining amount was paid, therefore, there is no impropriety in holding both defendants jointly liable for the refund of the amount.”

This decision also shows why, in cases where it is not clear who received the money, directing the lawsuit jointly against both the real estate agent and the seller can be a strategic choice.

B. Claim for brokerage/commission fee and prohibition of set-off

A real estate agent’s claim for commission based on an invalid external sales contract or setting off a deposit by asserting entitlement to it is not legally protected. According to Turkish Code of Obligations (TCO) Art. 520, a real estate brokerage contract is not valid unless made in writing.

In the decision of the 13th Civil Chamber of the Court of Appeals dated 10.12.2019, numbered 2016/31196 E., 2019/12316 K., it was determined that commission cannot be demanded based on an invalid contract, stating “Since it is not possible to accept the document in question as a brokerage contract made in written form in accordance with Article 520 of the Turkish Code of Obligations, the contract is also invalid in this respect”, and “In this situation, the parties have an obligation to return everything they received from each other according to the provisions on unjust enrichment.”

Also, in the decision of the 13th Civil Chamber of the Court of Appeals dated 14.03.2018, numbered 2018/1207 E., 2018/3075 K., it was ruled with the following words that the real estate agent’s commission cannot be deducted from the seller’s repayment obligation:

“The defendant seller … accepted to pay 10,000.00 TL, which he received as per the contract, to the plaintiff, but did not make the payment to the plaintiff. In this case, the defendant must pay this amount in full to the plaintiff. It is not appropriate to deduct the commission fee earned by the other defendant, the real estate agent, from the debt of the defendant … .”

We have examined in detail the circumstances under which a real estate agent’s commission right arises in our articles titled Do I pay a fee to the real estate agent if I give up buying the house? and Am I obliged to pay commission to the real estate agent who showed the house? In summary, regarding the refund of the earnest money (kapora): If there is no written contract in accordance with Article 520 of the Turkish Code of Obligations (TBK), the real estate agent is entitled to neither commission nor a cancellation fee; therefore, no deduction can be made from the earnest money. On the other hand, the situation is different if the buyer has signed a written and valid brokerage agreement for a sale and purchase with the real estate agent, and a cancellation fee payable to the real estate agent in case the buyer withdraws has been stipulated in this agreement. In this case, the real estate agent can assert their claim, which remains within the service fee limit specified in Article 16/2-d of the Regulation, as an offset defense. Therefore, before requesting an earnest money refund, it must be carefully examined which documents the buyer signed at the real estate office.

C. Principle of personal liability: cases where the earnest money is paid to the seller, not the real estate agent

The principle of personal liability applies to unjust enrichment claims. If the earnest money was deposited directly into the seller’s account and the real estate agent has no written commitment regarding the refund, the party to whom the refund claim is addressed is not the real estate agent, but the seller who received the payment.

Ankara Regional Court of Justice 24th Civil Chamber, 22.03.2023, 2022/36 E., 2023/557 K.: “The most important characteristic of the institution of unjust enrichment is that, in accordance with the ‘principle of personal liability,’ the claim must be made against the person to whom the payment was made.”

Bakırköy 2nd Civil Court of Commerce, 14.06.2024, File No. 2024/324, Decision No. 2024/676: The Court, having determined that “the earnest money, which is the subject of the lawsuit and enforcement, was sent to the account of a 3rd party outside the lawsuit”, ruled that “there was no written undertaking by the defendant party, in its capacity as an intermediary-real estate agent, regarding the return of this amount, and it was understood that the plaintiff party could not make a claim from the defendant within the scope of the contractual relationship between the plaintiff and the 3rd party outside the lawsuit, and therefore the case was dismissed.”

This decision is a warning for buyers: a lawsuit filed against the wrong person will be dismissed, and the litigation costs and counterparty attorney’s fees will be charged to the plaintiff. The receipt is the most fundamental document showing whose account the payment was made to, and it must be examined before filing a lawsuit.

D. What obligations does the Regulation on Real Estate Trade impose on real estate agents?

The activities of real estate businesses are regulated by the Regulation on Real Estate Trade. In earnest money disputes, the following provisions are particularly useful:

• Authorization certificate (Art. 5): Real estate trade can only be conducted by businesses holding an authorization certificate and contracted businesses. The current list of businesses holding an authorization certificate is published on the Ministry’s website (Art. 11).
• Rules of conduct (Art. 14/2): When providing services, the real estate agent must act honestly and diligently, not provide misleading information, not act contrary to the interests of the persons they serve, and deliver copies of the documents they have signed to these persons.
• Brokerage agreement for sale and purchase (Art. 16): As a result of the brokerage, an agreement in at least three copies is drawn up between the buyer, seller, and the business. If agreed, the withdrawal fee and penalty clause to be paid in case of withdrawal by the parties can be determined provided that it does not exceed the service fee for the business (Art. 16/2-d).
• Showing immovable property (Art. 19/4): No fee can be demanded in return for the service of showing immovable property.
• Service fee (Art. 20): The brokerage service fee for sale and purchase cannot exceed four percent of the sales price, excluding VAT, and is shared equally between the buyer and seller unless otherwise agreed.
• Supervision and sanction (Art. 22 and Art. 9): The Ministry is authorized to conduct audits regarding the implementation of the Regulation and complaints; in case of non-compliance, an administrative fine is applied, and under certain conditions, the authorization certificate is revoked.

These provisions do not constitute a separate cause of action for the refund of the deposit; the basis of the refund request is still invalidity and unjust enrichment. However, a complaint to the Provincial Directorate of Trade creates significant pressure on the real estate agent from an administrative process perspective. Furthermore, a real estate agent’s stipulation of a “withdrawal fee” exceeding the limit of Art. 16/2-d is a strong argument that can be used in the buyer’s defense.

E. To whom should a claim be made, and in what circumstances?

6. Summary of Judicial Decisions

7. Conclusion

The real estate agent’s failure to refund the down payment received under an external sales contract is not legally valid. External contracts for the sale of immovable property are absolutely null and void according 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 Article 60 of the Notary Law. The invalidity of the main contract also renders invalid the down payment (earnest money or penalty clause), which is of a subsidiary nature, and the provisions regarding the forfeiture of the down payment. In this context:

• The real estate agent who actually received the down payment is obliged to return what was received, due to the invalidity of the contract, in accordance with the provisions of unjust enrichment.
• The real estate agent’s defenses claiming to have transferred the down payment to the seller constitute an internal relationship that is not binding on the buyer and do not negate the obligation to refund.
• In cases where the down payment was deposited directly into the seller’s account, not the real estate agent’s, and the real estate agent has no written commitment to refund, the refund claim should be directed to the seller, in accordance with the principle of privity in unjust enrichment.

Step-by-step roadmap

1. Collect documents. Bank receipts or invoices, signed forms or contracts, property viewing certificates, advertisement screenshots, and all correspondence with the real estate agent and seller should be gathered.
2. Identify who received the money. The recipient account on the receipt determines the defendant of the lawsuit (see table above).
3. Check the real estate agent’s authorization certificate. It should be checked whether the business is listed in the list published by the Ministry of Trade.
4. Make a written refund request. A notice sent through a notary public is suitable for documenting the debtor’s default and recording the process.
5. Check the prerequisites. Depending on the nature of the dispute, an application to the consumer arbitration board or mandatory mediation for litigation may come into question. Since a sales dispute between a real estate business and two real persons may be subject to different procedures, this assessment should be made before filing a lawsuit.
6. Choose the path of enforcement proceedings or a lawsuit. For a down payment that is documented by a receipt and has a certain amount, non-judicial enforcement proceedings can be initiated; in case of an objection, a lawsuit for annulment of the objection is filed. Alternatively, a direct collection lawsuit can be filed. Whether interest or the current value will be demanded should be decided at this stage.
7. Consider an administrative complaint. If there is a violation of the regulation provisions, a complaint to the Provincial Directorate of Commerce can also be utilized.

When does the criminal law aspect come into question?

The non-refund of a down payment is a legal debt dispute in most cases, and prosecutor’s office applications may remain unsuccessful on this ground. However, in situations such as collecting money on behalf of a person who is not the owner of the real estate or does not have sales authority, receiving down payments from multiple persons for the same real estate, or using money received as a deposit for other purposes, the incident should be evaluated separately from a criminal law perspective. This distinction is made according to the details of the specific case and does not preclude civil litigation.

8. Frequently Asked Questions

Can I get back the deposit I gave to the real estate agent?

If the sale of real estate has not been formally executed at the Land Registry Office or a public notary, any external sales contract, reservation form, or preliminary protocol signed between the real estate agent or the parties is absolutely void. In this situation, the real estate agent who actually received the deposit is obligated to return what they received, according to the provisions of unjust enrichment. The decision of the 3rd Civil Chamber of the Court of Cassation numbered 2024/469 E., 2025/171 K. is in this regard.

The contract states ‘if the buyer withdraws, the deposit is forfeited’; does this clause bind me?

If the main sales contract is invalid because it was not executed formally, the related clause ‘deposit will not be refunded’ is also invalid. In the decisions of the Istanbul Regional Court of Justice 3rd Civil Chamber numbered 2024/1199 E., 2025/553 K. and the 3rd Civil Chamber of the Court of Cassation numbered 2020/11102 E., 2021/2709 K., it has been accepted that such clauses cannot be applied.

The real estate agent says ‘I gave the money to the seller’; can I still demand it from them?

If the real estate agent received the deposit from you, their defense that they transferred the money to the seller is an internal relationship between the agent and the seller and does not bind the buyer (Court of Cassation 3rd Civil Chamber 2024/469 E., 2025/171 K.). If the real estate agent acted together with the seller and received the payment with a receipt, both can be held jointly liable (Court of Cassation 3rd Civil Chamber 2023/305 E., 2023/1848 K.).

If I deposited the deposit directly into the owner’s account, whom should I sue?

The principle of personality applies in unjust enrichment: the claim is directed to whoever received the money. If the earnest money was deposited into the seller’s account and the real estate agent has no written commitment for a refund, the lawsuit filed against the real estate agent may be dismissed (Bakırköy 2. Civil Court of First Instance 2024/324 E., 2024/676 K.). In this case, the addressee is the seller.

Can the real estate agent deduct their commission from the earnest money?

A real estate brokerage contract is not valid unless made in writing in accordance with Article 520 of the Turkish Code of Obligations (TBK). If there is no valid written contract, the real estate agent cannot demand commission or make deductions from the earnest money (Supreme Court 13th Civil Chamber 2016/31196 E., 2019/12316 K.; 2018/1207 E., 2018/3075 K.). If the buyer has signed a written brokerage agreement stipulating that a fee will be paid to the real estate agent in case of withdrawal, the real estate agent can raise a defense of set-off for this claim, provided it does not exceed the service fee; therefore, the signed documents are important.

Can I get the earnest money back with interest or its current value?

The 3rd Civil Chamber of the Supreme Court has found it appropriate to apply interest from the payment date to the lawsuit date (2025/1032 E., 2025/4383 K.) and, in some cases, to bring the earnest money amount to its value at the lawsuit date based on the principle of compensatory justice (2024/4358 E., 2025/3100 K.). Which path will be followed is determined according to the specific case file.

How long do I have to claim an earnest money refund?

The right to claim arising from unjust enrichment, in accordance with Article 82 of the Turkish Code of Obligations (TBK), must be exercised within two years from the date the right to reclaim was learned, and in any case, within ten years from the date the enrichment occurred.

Does the absence of the real estate agent’s authorization certificate change the outcome?

According to Article 5 of the Regulation on Real Estate Trade, real estate trade can only be conducted by businesses holding an authorization certificate. Unauthorized activity does not weaken the claim for a refund; on the contrary, it also opens the way for complaints to the Provincial Directorate of Trade and administrative sanctions. The authorization certificate can be checked from the list published on the Ministry of Trade’s website.

How will down payments be made after October 1, 2026?

With additional article 1, added to the Regulation on Real Estate Trade on 29/4/2026, it has been made mandatory to pay the sales price through a secure payment system, and the Ministry of Trade has postponed the start date to October 1, 2026. The procedures and principles regarding how down payments made to real estate agents or sellers before the title deed transaction will be processed in the system will be determined by the Ministry; the latest announcement should be checked before the transaction.

Can I file a criminal complaint if the real estate agent does not return the money?

The non-refund of a down payment is considered a civil debt dispute in most cases. However, in situations such as collecting money without a genuine intention to sell from the outset, taking a down payment on behalf of a non-owner, or using the entrusted money for other purposes, the criminal law aspect should be examined separately. This assessment should be made according to the details of the incident.

9. Why is it Important to Conduct the Process Correctly in These Cases?

Although down payment disputes may seem to involve small amounts, an error in procedure can lead to the complete loss of the claim. The most common problems encountered in practice are:

• Wrong defendant: In a case where the down payment was deposited into the seller’s account, filing the lawsuit only against the real estate agent creates the risk of rejection due to the principle of privity and the risk of litigation costs.
• Insufficient Claim: In a lawsuit filed without claiming interest or equalization, only the nominal amount can be collected years later.
• Skipping Prerequisites: In a dispute requiring a consumer arbitration committee or mandatory mediation as a prerequisite for filing a lawsuit, filing a lawsuit directly may result in dismissal on procedural grounds.
• Statute of Limitations: The two-year period in Article 82 of the TCO runs from the date the right to reclaim is learned and often expires unnoticed.
• Real Estate Agent’s Defense: From the real estate business’s perspective, having actually transferred the money to the seller, the presence of a written commitment, and the existence of a brokerage agreement in accordance with Article 16 are the main lines of defense that determine the limits of liability.

On Istanbul’s Anatolian Side, particularly in Tuzla, Pendik, Kartal, Maltepe, Sancaktepe, Sultanbeyli, Ümraniye, Ataşehir and Üsküdar, and in Kocaeli, in Gebze, Çayırova, Darıca, Dilovası, İzmit, Körfez and Başiskele, residential property buying and selling is extensively conducted through real estate agencies, and down payment is considered a normal part of these processes. 2M Hukuk Law Office, based in Tuzla, provides consultancy and litigation services to buyers and real estate businesses in real estate purchase and sale disputes on the Anatolian Side of Istanbul and in Kocaeli.

10. Resources and Verification Note

• Turkish Civil Code No. 4721 art. 706
• Turkish Code of Obligations No. 6098 art. 77, 82, 177, 178, 237, 520
• Land Registry Law No. 2644 art. 26
• Notary Law No. 1512 art. 60, 89
• Regulation on Real Estate Trade (Official Gazette 5/6/2018-30442; last amendment Official Gazette 29/4/2026-33238) art. 5, 9, 11, 14, 16, 19, 20, 22, additional art. 1, provisional art. 1/10
• Ministry of Trade’s announcement dated June 26, 2026, regarding the postponement of the mandatory implementation date of the secure payment system to October 1, 2026

Verification note: The judicial decisions mentioned in this article are provided with their case and decision numbers. It is recommended that the full texts of the decisions be verified through UYAP or official decision search systems before being used in a petition or another publication. This article is for general informational purposes; it does not constitute legal advice for a specific case.