Selling by Bypassing the Real Estate Agent

After benefiting from the brokerage service provided by the real estate agent (broker), the acquisition of the immovable directly from the owner or through other channels by bypassing the broker is meticulously addressed in court decisions within the framework of “breach of contract” and “accrual of penal clause”. Below, the legal nature of this situation, the applicability of the penal clause, and the settled jurisprudence of judicial authorities on this matter are analyzed.

1. The Concept of Bypassing and its Legal Nature

Bypassing the real estate agent occurs when prospective buyers, acting with the intention to purchase an immovable property, having benefited from the real estate agent’s brokerage services such as property showing and information provision, directly contact the owner, cutting out the agent, at the stage where the agent would be entitled to a fee. In the decision of the Supreme Court General Assembly of Civil Chambers dated 24.05.2022, numbered 2020/339 E. and 2022/723  K. , this situation is defined as an agreement stipulated to protect the agent’s labor, also bearing the nature of a penal clause in addition to the fee. Such provisions are valid and binding for the parties in accordance with the principle of freedom of contract.

2. Calculation of the Penal Clause and the “Double” Rule

In the jurisprudence of the Supreme Court, the legal nature of the amount stipulated when the real estate agent is bypassed (typically set as 4% of the sale price + VAT) is divided into two categories:

Normal Brokerage Fee: The standard commission rate agreed upon in the contract (usually 2%) is considered the normal fee.

Penalty Clause: The portion exceeding the standard fee (e.g., the remaining 2% of a total 4% claim) is defined as a “penalty clause”.

In the decision of the 13th Civil Chamber of the Supreme Court of Appeals dated 06.06.2018, numbered 2016/2319 E. and 2018/6679  K., it was emphasized that 2% of the 4% claim constitutes the brokerage fee, while the remaining 2% is a penalty clause, and that this distinction must be made. Similarly, in the decision of the 13th Civil Chamber of the Supreme Court of Appeals dated 09.02.2016, numbered 2014/48766 E. and 2016/3728  K., it was confirmed that the 2% fee undertaken by the seller must be paid, and the remaining 2% constitutes a penalty clause.

3. Mechanism for Reduction (Abatement) of the Penalty Clause

Pursuant to Article 182/last paragraph of the Turkish Code of Obligations (TCO), the judge is obliged to reduce (ex officio) any penalty clause deemed excessive. However, the application of this rule varies according to the status of the parties:

Non-Merchant Debtors: If the debtor is not a merchant, the excessiveness of the penalty clause should be abated by taking into account the economic status of the parties, the debtor’s ability to pay, the benefit provided, and the degree of fault (13th Civil Chamber of the Supreme Court of Appeals, 04.12.2017, 2017/9158 E., 2017/12051  K.).

Debtors Who Are Merchants: If the debtor is a merchant, no discount can be made on the penal clause pursuant to Article 22 of the Turkish Commercial Code. In the decision dated 06.04.2023, numbered 2021/74 E. and 2023/563 K. of the Istanbul Regional Court of Justice 13th Civil Chamber, it was ruled that the penal clause amounting to 4% + VAT should be collected in full, without any discount, due to the defendant being a merchant.

4. Scope and Proof Conditions of Circumvention

The act of circumvention is not limited solely to the buyer’s personal purchase. In contracts, purchases made by the buyer’s spouse, children, or first-degree relatives are also generally considered within this scope. In the decision dated 01.06.2023, numbered 2023/370 E. and 2023/1722 K. of the Supreme Court of Appeals 3rd Civil Chamber, it was stated that the fee provision of 4% + VAT is binding even for purchases made on behalf of the buyer’s relatives.

Furthermore, a written contract is required for the real estate agent to be entitled to a fee (Turkish Code of Obligations Article 520). In the decision dated 15.10.2014, numbered 2013/1108 E. and 2014/768 K. of the Grand Chamber of Civil Cases of the Supreme Court of Appeals, it was affirmed that if an apartment shown by the real estate agent is circumvented and purchased in the name of a spouse, the penal clause in the contract should be applied (with a discount).

5. Exceptional Circumstances: Condition of Effective Intermediation

Even if there is a property showing document, for it to be said that the real estate agent has been bypassed, the agent’s activity must lead to the sale or there must be an effort in this direction. In the decision of the Supreme Court General Assembly of Law dated 13.12.2018, numbered 2017/621 E. and 2018/1929 K., it was stated that property showing alone does not create a right to a fee, and that if the sale occurs independently of the real estate agent’s activity, through another real estate agent authorized by the owner, it cannot be considered “bypassing”, and the decision to reject the case was upheld.

6. Secondary Source Evaluations

Decisions considered secondary sources clarify the procedure that courts should follow when a real estate agent is bypassed:

In the decision of the 13th Civil Chamber of the Supreme Court dated 18.03.2010, numbered 2009/12764 E. and 2010/3578 K. (secondary source), it was stated that the failure to discuss the reduction of the penalty clause, stipulated as twice the service fee, in accordance with Article 161/last of the Turkish Code of Obligations (BK), was a reason for reversal.

In the decision of the 13th Civil Chamber of the Supreme Court dated 16.01.2013, numbered 2012/20571 E. and 2013/673 K. (secondary source), it was emphasized that 2% of the 4% fee was the normal fee, 2% was the penalty clause, and a 50% discount should be applied to the penalty clause portion.

In the decision dated 21.06.2018, numbered 2016/10339 E. and 2018/7032  K. of the 13th Civil Chamber of the Supreme Court (secondary source), referring to the real estate agents’ chamber tariff, it was reminded that if one of the parties withdraws, half of the total 4% amount that both parties must pay constitutes a penal clause, and that a reduction should be made ex officio.

Conclusion

In light of court decisions; in cases where the real estate agent is circumvented, the provisions in the contract, usually set as double the normal commission (6%), are considered a “penal clause” and are valid. However, courts have the authority to make a reduction on this amount depending on whether the debtor is a merchant or not. For the real estate agent to be entitled to this fee, the existence of a written contract and the property having been shown by the real estate agent are fundamental conditions.

Emlakçıyı devre dışı bırakıp evi alırsam ücret öder miyim?

Evet. Yargıtay kararlarına göre, emlakçının gösterdiği taşınmazı onun dışında satın almanız durumunda sözleşmede yer alan komisyon ve cezai şart hükümleri devreye girer ve ücret ödeme yükümlülüğü doğabilir.

Cezai şart neden “iki kat komisyon” olarak uygulanıyor?

Uygulamada sözleşmelerde genellikle %2 komisyon + %2 cezai şart olacak şekilde toplam %4 talep edilir. Yargıtay bu tutarın bir kısmını normal ücret, kalanını cezai şart olarak değerlendirmektedir.

Bu cezai şart her durumda ödenir mi, indirim mümkün mü?

Her durumda değil. Eğer borçlu tacir değilse hakim, cezai şartı fahiş bulursa indirim yapabilir. Ancak tacirler açısından bu indirim çoğu durumda uygulanmaz.

Why Is Expert Lawyer Support Necessary?

One of the most serious risks in real estate buying and selling processes is high-value penal clause and commission disputes arising from circumventing the real estate agent (leaving out). In such cases, many technical details such as the content of the contract, the status of the parties, and whether the real estate agent actually contributed to the sale are decisive.

Therefore, working with an Istanbul lawyer is of great importance for the correct analysis of the process and the prevention of unnecessary payment risks. Specifically;

Evaluation of the validity and amount of the penal clause

Request for reduction (mitigation) of an excessive penal clause

Determination of whether the real estate agent is actually entitled to the fee

Issues such as the cancellation of debts arising from incorrect contracts require expertise.

At this point, working with an experienced Istanbul 2M Law Office minimizes legal risks and prevents the loss of rights.