Right of Ownership

Right of Ownership is one of the fundamental subjects of Property Law. According to Article 683 of the Turkish Civil Code (TCC), “The owner of a thing has the right to use, benefit from, and dispose of it in any manner within the limits established by the legal order.” This right is a real right that grants the owner the broadest possible powers over the property. While classical doctrine views ownership merely as a collection of powers, modern views argue that certain duties must also be included within the content of the right of ownership.

Content of the Right of Ownership

The right of ownership grants the owner both affirmative powers and protective powers, while also imposing certain duties upon the owner.

Owner’s Powers

• Affirmative Powers: The owner may perform factual disposals such as physically using the property, deriving benefits from its produce, consuming it, or modifying it. The owner may also perform legal disposals such as transferring the property or establishing rights that limit their own powers over it.
• Protective Powers: The owner may bring an action for reclamation against anyone who wrongfully possesses the property and may also seek legal remedies to prevent any form of unlawful interference.

Owner’s Duties (Obligations)

• Duty of Non-Action: The owner is obligated to refrain from acts or transactions that exceed the legal limits established for ownership. For example, when using immovable property, the owner must not disturb neighbors or violate construction prohibitions set by urban planning law. According to Article 35/3 of the Constitution of the Republic of Türkiye dated 1982, “The exercise of the right of ownership must not be contrary to the public interest.”
• Duty of Tolerance: The owner is obligated to tolerate certain interventions on their ownership rights for the benefit of third parties or the public. For example, the owner must allow the rightful owner of a lost or fallen item or an animal that has entered the property to enter the immovable property in order to search for it (TCC Art. 752).
• Duty of Action: In particular cases required by the public interest, the owner may be obligated to perform certain positive acts. For instance, the owner must pay certain taxes, fees, and charges due to their property, impose restrictions on their land (TCC Art. 749), or contribute to the joint maintenance of common waters (TCC Art. 759).

Protection of the Right of Ownership

The right of ownership is protected through various legal avenues. This protection is provided by international agreements such as the European Convention on Human Rights, as well as domestic regulations, in both public and private law domains. The primary means of protection under private law are the action for reclamation and the action to prevent interference.

Action for Reclamation (TCC Art. 683/II)

This is a real action brought by the owner who is not in direct possession, against a person who wrongfully possesses the property, with the aim of securing its return. This action may be brought for both movable and immovable property. As it is based on a real right, it is not subject to prescription. The plaintiff is the owner who is not the direct possessor; even an owner who is an indirect possessor or has never been in possession may bring this action. The defendant is the person who has wrongfully taken possession and continues to hold the property. The burden of proof generally lies with the plaintiff, who must prove their ownership right.

Action to Prevent Interference (Action for Cessation of Interference) (TCC Art. 683/II)

This is an action that provides the owner with a means of self-protection when their rights derived from ownership are unlawfully obstructed, restricted, or hindered. The action may be brought to terminate an existing interference or to prevent a potential future interference. It is not necessary that the property has suffered damage, that the plaintiff has suffered loss, or that the defendant acted negligently; it is sufficient that the interference is unlawful and unjustified. This is also a real action and is not subject to prescription; it may be brought as long as the unlawful interference continues. The plaintiff is the owner of the movable or immovable property subject to interference. The burden of proof generally lies with the plaintiff, who must prove their ownership right, the existence of unlawful interference, the defendant’s unlawful conduct, and the causal link between the interference and the violation.

Subject and Scope of Ownership

The subject of ownership is property, and, according to the principle of determinacy, the right of ownership encompasses the entire property.

Accessory Part (Mütemmim Cüz – TCC Art. 684)

An integral part of the principal thing, which, according to local customs, cannot be separated from it without destroying, damaging, or altering its structure. The owner of a thing is also the owner of its accessory parts. Buildings, planted vegetation, and natural resources are considered accessory parts by law.

Attachment (Teferruat – TCC Art. 686)

A movable item that is permanently attached to the principal thing for the purpose of its operation, preservation, or benefit, in accordance with the owner’s discernible intention or local customs, through combination, attachment, or other means. An attachment may constitute an independent real right and may belong to a different person than the principal thing. However, any disposal concerning the principal thing, unless otherwise specified, also includes its attachments.

Types of Ownership

The right of ownership is classified into different types according to the number of owners and their relationship to the property.

Co-Ownership (Müşterek Mülkiyet – TCC Art. 688 et seq.)

This is the situation in which multiple persons are owners of an entire thing, not physically divided, each holding a specific share. Each co-owner has independent disposal rights over their abstract share and exercises these rights in proportion to their share. Each co-owner holds the rights and obligations of ownership concerning their share; shares may be transferred, pledged, or seized by creditors. Co-ownership may be established by legal act, official decision, or by law. Co-owners are subject to statutory regulations regarding the management, use, and benefit of the co-owned property, or they may make alternative arrangements among themselves, provided these do not contradict mandatory legal provisions. Co-ownership may terminate due to the transfer, abandonment, or expulsion of one or several co-owners, or it may terminate for all co-owners through the transfer, abandonment, destruction, expropriation, or division of the property.

Joint Ownership (İştirak Halinde Mülkiyet – TCC Art. 701 et seq.)

This is ownership held jointly by persons as a result of a community created by law or by contracts provided for by law. In joint ownership, the members do not have defined shares; each member’s right extends to the entire property. The members hold the right of ownership jointly. Joint ownership may arise from a legal event such as inheritance, or from legal transactions such as marital property, family property, or general partnership. The rights and obligations of the members are determined by the legal provisions or contractual terms that created the community. Generally, decisions regarding management and disposal require unanimous consent of all members. Joint ownership terminates upon transfer of the property, dissolution of the community, or conversion into co-ownership.

Ownership of Immovable Property

The subject of ownership of immovable property consists of land, independent and continuous rights recorded in separate pages of the land registry, and independent units registered in the condominium registry (TCC Art. 704).

Acquisition of Ownership of Immovable Property

Ownership of immovable property may be acquired originally or by transfer. When acquisition occurs through a legal transaction, it is effected by registration in the land registry (TCC Art. 705/1). However, ownership is acquired prior to registration in cases of inheritance, court decision, compulsory enforcement, occupation, expropriation, or other cases provided by law (TCC Art. 705/2).

Acquisition by Registration

Registration in the land registry requires a valid ground of acquisition (usually a contract creating an obligation to transfer ownership) and a corresponding application for registration. For contracts aimed at transferring ownership of immovable property to be valid, they must be formally executed (by the land registry director or authorized officials) (TCC Art. 706).

Acquisition Prior to Registration

Acquisition of Ownership of Immovable Property by Prescription

Ordinary (Registry-Based) Prescription (TCC Art. 712)

If a person registered as owner in the land registry, without a valid legal ground, maintains uninterrupted and good-faith possession of the immovable property for ten years without litigation, their acquired ownership right cannot be contested.

Extraordinary (Non-Registry-Based) Prescription (TCC Art. 713)

If the full or partial owner of an immovable property is not registered in the land registry, or if the owner cannot be determined from the registry, or if the property is registered in the name of a person declared legally absent twenty years ago, and the possessor holds uninterrupted and peaceful possession of the property for twenty years as if they were the owner, they may file a registration action to obtain registration of ownership in their name. Ownership is acquired prior to registration upon fulfillment of the material conditions.

Loss of Ownership of Immovable Property (TCC Art. 717)

Ownership of immovable property is absolutely terminated by abandonment (the owner’s renunciation of ownership) or by the complete destruction of the property. A change of ownership without termination of the right is termed relative loss.

Scope of Ownership of Immovable Property (TCC Art. 718)

Ownership of land extends to the air above and the ground below, to the extent that they are useful for its utilization. Buildings, vegetation, and natural resources are also included within this scope, subject to legal restrictions.

Horizontal Scope (TCC Art. 719)

The boundaries of immovable property are determined by land registry plans and boundary markers on the ground. Where the registry plans and ground markers conflict, the boundary indicated in the plan prevails.

Vertical Scope

The owner cannot prevent the use of air and soil layers that are not useful for the utilization of the property.

Material Scope

Restrictions on Ownership of Immovable Property

Ownership of immovable property may be subject to various restrictions that limit the owner’s powers. These restrictions may arise from legal acts or from law.

Restrictions Arising from Legal Acts

These are restrictions imposed by the owner’s own legal acts on the powers granted by ownership. Examples:

Restrictions Arising from Law

These restrictions derive from statutory provisions and are effective without registration in the land registry. They are divided into public law restrictions (e.g., urban planning, health, natural disaster regulations) and private law restrictions (particularly those arising from neighbor law).

Private Law Restrictions

Restrictions on Disposal Powers: Statutory right of pre-emption in co-ownership (TCC Art. 732 et seq.) and statutory right of pre-emption in agricultural land.

Restrictions on Beneficial Use (Neighbor Law):

Restrictions Granting Right of Entry onto Another’s Land: Entry into forests and pastures (TCC Art. 751), retrieval of lost items (TCC Art. 752), necessity (TCC Art. 753), and other rights of way (TCC Art. 748).

Restrictions imposed for public interest cannot be removed or modified (TCC Art. 731/3). Removal or modification of private law restrictions arising from law requires formal execution of the relevant agreement and annotation in the land registry (TCC Art. 731/2).