The validity of Immovable Sales Provisional Contract under Turkish law
The right to property is the essence of all rights. For this reason, the nature and protection of the property right is also unique to itself. Absolute and unlimited property rights have caused legal difficulties in the realization of community benefit. The expansion of social rights and the increased involvement of the State in the social sphere have limited to assign of the right of property to be absolute and unlimited. On the other hand, the scale economy is also effective in agricultural areas, and It the needs to prevent the division of agricultural land due to inheritance and transfers. The transfer limitations of property ownership in the Land Registry offices reveal another problem: The question of the validity of Immovable Sales Provisional Contract and the limitation of the transfer of ownership to these contracts. In addition, it is important that the notaries involved in the Immovable Sale Provisional Contract are responsible for the setup of this contract.
The Zoning Law has emerged as the result of urbanization. Urbanization, which is the result of the compulsive consequences of collective life, has led to the restriction of property in the settlements of the State. Acquisition of immovables that are necessary for the public services is both an obligation and a duty for the State. Article 18 of the Zoning Act has brought important regulations on the limitation of the transfer of properties. Such contravening property shall not be transferred or preliminary contract for the event shall not be made.
The Law on Soil Conservation and Land Use has placed significant restrictions on property ownership, for the prevention of the agricultural areas as the sale, transfer, inheritance and pledge. Because this situation affects agricultural land’s efficiency. Particularly, Article 8 of the Law relates public order. Unlike this provision, immovables’ sales cannot be made. In addition, Provisional sales cannot be made. Notaries who give an official title to the Immovable Sale Provisional Contract will be liable for damages arising from the sale of immovable property in contravention of the transfer prohibition when the articles 53 and 162 of the Notary Law considered. According to the jurisprudence of the Court of Cassation, the responsibility of the Notaries is the absolute liability. The Notary may be relieved of its responsibilities only on the grounds that the appropriate causal connection is cut of.
