CCS Law Istanbul deals with the complex real estate disputes, which also includes the cases related to the Partition of Joint Ownership, known as İzale-i Şuyu. Since it is possible to have several owners on a property, this undoubtedly breeds a lot of conflicts among the co-owners, and an İzale-i Şuyu petition is one of the reliative means availed so as to help with such conflicts. In this article, we focus on defending what is İzale-i Şuyu, the structure of such cases in the Turkish legal system, and our role in such cases.
What is İzale-i Şuyu (Partition of Joint Ownership)?
An Izİzale-i Şuyu, popularly known as Partition of Joint Ownership in court, is a legal instrument which facilitates the partition of jointly held movable or immovable assets to bring closure to a joint tenure. Whether it is a piece of real estate or movable assets, İzale-i Şuyu resolves conflicts among co-owners regarding property by sharing out the property, such that proceeds from the sale are also shared in the same manner for those who own fractional shares.
There is no particular co-owner allowed to bring this type of action, and once the action is commenced then none of the parties focuses on anything other than the decision of the court. In fact if a member who commenced the action changes their mind and does not wish to proceed with it, then, any other co-owner is entitled to proceed with the action.
Partition Methods in İzale-i Şuyu Cases
There are mainly two ways to solve an İzale-i Şuyu case:
Physical Division-Aynen Taksim: This is the method of physically sharing the co-owned property among the co-owners if the property would not lose any value by being divided. For example, a land may be dividable into pieces that each piece has the same value, each co-owner can get his or her piece.
Sale of Property - Satış Suretiyle İzale-i Şuyu: In cases where physical division of the common property is impossible or will substantially reduce the value of the property, a court may order that the property be sold through a public auction. The proceeds of such sale are divided among the co-owners in proportion to their ownership shares. İzale-i Şuyu (Partition of Joint Ownership) Lawsuit in Turkey
The Need for Mediation Prior to Filing
Under new Turkish law, the case of İzale-i Şuyu requires mandatory mediation before actual court litigation can be pursued. According to Law No. 6325, Article 18/B, if the mediation is not pursued, the court will dismiss the case due to a lack of procedural preconditions. CCS Law Istanbul fully assists in organizing the mediation and supports our clients in trying an out-of-court settlement.
In a suit of izale-i şuyu, who can file?
Every co-owner of the movable or immovable property may apply to the court with an İzale-i Şuyu case against the other co-owners. If it is a case of inheritance, the heirs of the co-owner who died must be included in the case. It is of vital importance that all of the co-owners be constituted as parties to the case; otherwise, the court cannot finalize the decision.
Where the co-owners among themselves reach an agreement as to how the property is to be divided, they then put it before the court, which tends not to reject that arrangement. Failing that, the court steps in with the aim of disposing of the dispute, either by physical partition or sale.
Which court is the jurisdictional authority over lawsuits related to İzale-i Şuyu?
These real estate cases shall be submitted to the court at the place where the real estate is located. Cases are under the jurisdiction of the Sulh Hukuk Mahkemesi- the Court of Peace. For example, for a case that took place in İstanbul, the relevant Court of Peace in İstanbul shall be applied to.
İzale-i Şuyu Lawsuits Costs and Fees
The costs of the lawsuit of İzale-i Şuyu involve the court expenses and the case costs, which are to be covered by the co-owners in the ratio of their shares. While it is considered that the co-owner who opens the lawsuit must pay the costs at the beginning, later the court will divide these costs among all co-owners at the end of the lawsuit.
For instance, in a sale by public auction, the applicable fee is determined based upon the sale price of the property. The fee charged is 11.38 per thousand of a co-owner's share. In a physical division, this is likewise assessed a fee: 4.55 per thousand of the property's total value.
Basic Questions in Physical Partition Aynen Taksim, or the physical partition, calls for the court to consider with due diligence the issue of whether or not a certain property can be divided without substantially diminishing its value.
The court will examine such factors as:
a) The area of the land and the quality of the property;
b) The number of co-owners and the individual stakes of each;
c) Whether it is permissible to partition the property under the zoning laws and land use
regulations.
If the property has to be divided into unequal shares, the court can make an order of monetary award to equalise the various lots. Where the court finds it possible to divide the property as condominium ownership, this will be preferred to sale.
Important Factors in Sale of Property
If a physical division is not possible, the court shall order the sale of the property by public auction. The sale is usually made by an Enforcement Office, but the distribution of money amongst the co-owners shall be in accordance with the shares of each of them.
This means that if there are additions on the property, like buildings or trees (muhdesat), those too will have to be sold with the land. If the co-owners agreed upon ownership of the addition, then respective values are calculated and proceeds divided accordingly.
Disputes arising over Additions (Muhdesat)
There may be dispute over ownership of any buildings or other additions that may be placed on the property at times in some cases of İzale-i Şuyu. This may necessitate a separate lawsuit, Muhdesatın Aidiyetinin Tespiti-Determination of Ownership of Additions. The dispute over ownership of the additions will result in putting the case of İzale-i Şuyu on hold.
Expert Guidance for İzale-i Şuyu Lawsuits
At CCS Law, our main objective is to look after the rights of the owners involved in the case of İzale-i Şuyu. Be it the division of a property among heirs or the resolution of a dispute over co-ownership, our team of expert lawyers and advisors will take you through all steps of the case and ensure that your rights are secure, the partition or alienation of the property is well performed according to the Turkish legislation.
If you are facing a co-ownership dispute or need an İzale-i Şuyu lawsuit, please do not hesitate to contact us for professional legal consultancy and representation.
Disclaimer: This article is intended for informational purposes only and does not constitute legal advice.
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