Partition Action (İzale-i Şuyu) and Sales Process in Izmir

When a dispute arises among co-owners of a property held under shared or joint ownership, any co-owner may apply to court and file a partition action (izale-i şuyu). This action results in either the physical division of the property (partition in kind) or its sale by public auction with the proceeds distributed among the co-owners. These cases are heard in the Izmir Civil Courts of Peace and are a frequently encountered legal route, particularly for inherited real estate. We provide information on these processes as part of our Izmir real estate law services.

What Is a Partition Action?

A partition action aims to terminate the co-ownership over a property held under shared ownership (paylı mülkiyet) or joint ownership (elbirliği mülkiyeti). Under the Turkish Civil Code, in shared ownership any co-owner may, with certain exceptions, file this action at any time; this right may be restricted for a certain period by a postponement agreement. In joint ownership, conversion to shared ownership must first be achieved.

The right to file the action belongs to any one of the co-owners; all other co-owners are named as defendants. The court decides on partition in kind or partition by sale depending on the nature of the property and the circumstances of the co-owners.

Partition in Kind vs Sale

When deciding on the method of partition, the court first evaluates the possibility of partition in kind:

• Partition in kind: This means physically dividing the property and allocating an independent portion to each co-owner. The nature of the property (location, zoning status, suitability of the plot for division) and the number of co-owners are taken into account. This method is not preferred if the division would cause a significant loss of value or is not practically feasible. Establishing a condominium ownership in buildings suitable for it may also be a solution.
• Partition by sale: If partition in kind is not possible or appropriate, the court orders the property to be sold by public auction and the proceeds to be distributed to the co-owners in proportion to their shares. The sale is generally open to all participants; however, the court may also decide that the auction be held only among the co-owners.

If there is a structure on the property suitable for establishing condominium ownership, co-owners may prefer this route. In this case, the co-ownership is terminated by converting it to condominium ownership. For properties subject to urban renewal, different legal processes may apply; for more on this topic, property owner rights in urban renewal in Izmir you may review our article.

Process and Sales Phase

After a sale decision is rendered in a partition action, the process proceeds as follows:

1. Inspection and valuation: The court determines the current market value of the property through an expert. This valuation constitutes the starting price of the sale.
2. Transfer to the sales officer: Once the sale decision becomes final, the file is transferred to the sales officer (satış memurluğu). The sales officer publishes the sale announcement and sets the auction date.
3. Announcement and public auction: The property is put up for auction on the specified date. Co-owners may also participate in the bidding. The auction is awarded to the highest bidder; if the bid falls below a certain percentage of the appraised value, the auction may not be finalised.
4. Distribution of proceeds: After deducting costs from the sale proceeds, the remaining amount is distributed to the co-owners in proportion to their shares. If there is a mortgage or other encumbrance on the property, part of the proceeds may need to be allocated to satisfy those obligations first.

If one co-owner is using the property alone, the other co-owners may claim ecrimisil (compensation for unlawful possession) for the period of use. This claim may be raised together with the partition action or through a separate lawsuit.

Inherited Real Estate

Real estate transferred by inheritance creates joint ownership (elbirliği mülkiyeti) among the heirs. Therefore, before a partition action can be filed, certain preliminary steps may need to be completed:

• Obtaining the certificate of inheritance (veraset ilamı): This document evidencing heirship may be obtained from the civil court of peace or a notary.
• Title registration: Registering the property in the land registry in the names of the heirs is necessary for the transition to shared ownership.
• Conversion of joint ownership to shared ownership: Heirs may convert joint ownership to shared ownership by notarial deed or court order. This step may be taken before or during the partition action.

If an agreement can be reached among the heirs regarding the partition of the property, the partition can also be carried out without filing a lawsuit through an inheritance distribution agreement. Where no agreement can be reached, any heir may resort to legal proceedings.

Process in Izmir

In partition actions, the court with jurisdiction is the Civil Court of Peace, and the competent court is the one located where the property is situated. For properties in Izmir, this means the Izmir Civil Courts of Peace. The Izmir Courthouse is located in Bayraklı and the courts operate under a heavy caseload; it should be borne in mind that the inspection and expert stages may extend the duration of the process.

The costs of the action (filing fees, expert fees, notification costs, etc.) are as a rule charged to the co-owners in proportion to their shares. Therefore, seeking a solution through negotiation among the parties before filing the lawsuit may provide advantages in terms of time and cost. For comprehensive information on real estate law matters, our Izmir real estate law services page may be reviewed.

Frequently Asked Questions

For legal support regarding partition actions and real estate law processes, you may contact us.