The main legislation related to the Elimination of Joint Ownership is Turkish Civil Code numbered 4721 (“TCC”). The target by filing the case is to terminate the joint ownership between the owners of a real estate by a court decision. The precondition of the case is the real estate to be registered in the land registry. Each joint owner of the real estate can file the case in order to eliminate the joint ownership.
If the real estate is allocated permanently for a certain purpose or there is an agreement between the owners which forbids the elimination, the owners cannot file the case. The case cannot be filed also at an improper time. The Code does not define the improper time concept but since the elimination may be executed by selling the real estate, it can be considered as the time when the market value of the real estate is lower than usual. Pursuant to the TCC, the parties can forbid the elimination at the most for 10 years and the agreement should be executed in official form required by the land registry.
The cases related to the elimination of the joint ownership should be filed before the Civil Court of Peace where the real estate is located.
The plaintiff can ask either for the partition of the real estate or sale by auction or negotiation of the real estate. In case of partition, the court checks whether the partition is applicable and doable for the specific case. If partition can be made, then the court should decide on partition and cannot decide the real estate to be sold. The Article 699 stipulates that the court decides to equalization by making payment in case there is a difference between the values of the divided parts.
In case it is determined that the partition is not applicable or that the value of the real estate will decrease significantly by partition, the court decides the real estate to be sold by auction. In principle the auction is public but depending on all owners’ consent the auction can be made only between the owners. The sale price is shared according to the share proportion of the owners