Law of property deals with the issues regarding real rights. Real rights are regulated exclusively by the law (Numerus Clausus Principle) which involve property. The right of ownership and other restricted rights such as servitude and mortgage are stictly prescribed by the law (Turkish Civil Code).
Classification of Property
According to Turkish Law system there are several sorts of property. I- Movable-immovable property, II- Res fungibles-infungibles, III- Consumable-Inconsumable property, IV-Public-private property, V- Res nullus(property without owner)-property of proprietor.
Ownership as most extensive real right is the title to property and provides the owner the power of possess, use (usus), enjoy (fructus) and dispose. As indicated, ownership is the most extensive real right over property.
Turkish Civil Code (No. 4721) article 683. describes the content of ownership as follows: “One who owns a thing, within the limits of law, has the power of use, enjoy and dispose over that thing.”
As a rule, power of ownership is limitless. This absolute power can only be limited by consitution and concerning regulations. Property and inheretence rights are protected by the constitution and may be limited by law only in view of public wellfare. Therefore, the exercise of prperty right may never be against the public wellfare. Some examples of limitation on the absolut power of ownership are:
- Expropriation by the state or public utility by eminent domain.
- Zoning laws, city planinning regulations, building codes.
- Neighbourhood rights.
Limited (Restricted) Real Rights
There are several kinds of limited rights: a.Servitudes, b. Mortgage, Right of incumbrance. Servitudes also occur in three ways; aa.Real servitude, bb.Personal Servitude, cc. Independent and permanent servitudes.
A servitude is a real right which is imposed as a burden on a property which might be tied to a person or attached to the ownership of a piece of property.
Mortgage is a credit device established by an agreement. Both moveble and immovable properties may be subjected to a mortgage (hypothec, as more common phrase for immovables) relation.
Acquisition of Real Rights
A movable property may be transferred easily by transferring the possesion under a valid contract. But the transfer of real rights on real (immovable) property can only be done by the office of land registry. In order to get a title deed following a buy and sell agreement properly, transaction must be concluded before a land registration officer. One should bear in mind that there is no other way to gain formal title deed which provides full ownership rights. It is also possible to make a buy and sell agreement regarding a immovable property right before a Public Notary. This agreement made in before Notary gives the buyer a legal right to force seller to conclude the deal and transfer the title of property in front of land registry.