Lawsuits for Annulment and Registration of the Title Deed Based on Defective Will

Legal Actions for Title Registration and Annulment Due to Invalid Will

Defective will annulment is a critical legal process in Turkish property law. Lawsuits for annulment and registration of the title deed based on defective wills are regulated under Turkish Civil Code. The content of the right of ownership is defined under Article 683 of the Turkish Civil Code. According to the Turkish Civil Code, a person who owns a property is entitled, within the limits of the legal order, to use, benefit from, and dispose of that property as they see fit. The right to property is also safeguarded under Article 35 of the Constitution of the Republic of Turkey. Pursuant to the first sentence of Article 35, everyone has the right to own property and to inherit. The right of ownership is one of the most fundamental rights within our legal system.

However, this right may not always be acquired through transactions formed by free will. Situations such as duress, intimidation, mistake, or fraud – which lead to vitiation of free will – can render the validity of transactions registered before the land registry questionable.

At this juncture, lawsuits for annulment and registration of title based on vitiation of will gain significant legal importance. These actions are filed with the aim of nullifying transactions that were not based on the true consent of the rightful owner and ensuring that the property record reflects the genuine will.

Below, we present our general information note on lawsuits for annulment and registration of title based on vitiation of will. If you wish to receive more detailed information regarding:

• The types of vitiation of will that may serve as grounds for such a lawsuit,

• The documents that can substantiate a claim,

• Potential legal arguments, or

• The scope of remedies that can be sought through litigation,

please do not hesitate to contact our law firm.

Lawsuit for Annulment and Registration of Title Deed Due to Lesion/Unfair Advantage

Lesion is regulated under Article 28 of the Turkish Code of Obligations No. 6098. According to the provision of the said article, if there is a clear disproportion between the mutual obligations in a contract, and this disproportion arises from the exploitation of the other party’s distress, improvidence, or lack of experience, the disadvantaged party may, depending on the circumstances, either declare to the other party that they are not bound by the contract and demand the return of their performance, or remain bound by the contract and request correction of the disproportion.

The disadvantaged party must exercise this right within one year from the date they become aware of their own improvidence or inexperience, or, in cases of distress, within one year from the date the distress ceases provided that in any case, this right must be exercised within five years from the date the contract was concluded.

In order to assert a claim based on lesion (unfair advantage), both objective and subjective conditions stated in the TCO must be met:

• The objective condition is the existence of a clear disproportion between the performances of the parties.

• The subjective condition requires that the benefiting party took advantage of the other party’s distress, inexperience, or improvidence.

Furthermore, for unconscionability to be established, the benefiting party must have been aware of the disadvantaged party’s condition and must have intentionally exploited it, in other words, must have acted with the intent to take unfair advantage and effectively exploited the other party.

Lawsuit for Annulment and Registration of Title Deed Based on Mistake as a Vitiation of Will

In defective will annulment cases, mistake is one of the primary grounds for challenging the validity of the transaction.Mistake as a form of vitiation of will is regulated under Articles 30 to 35 of the Turkish Code of Obligations No. 6098. A party who enters into a contract under a fundamental mistake is not bound by that contract. A person who makes an error while concluding a contract and whose will is thereby impaired due to their own mistake may annul the contract. In such lawsuits, the plaintiff, relying on the ground of mistake, seeks to annul the transaction, asserting that they do not wish to be bound by the declaration they made, while the defendant typically argues that the plaintiff should remain bound by their statement and requests dismissal of the case.

In these types of lawsuits, the plaintiff must demonstrate, in accordance with the principle of good faith, that had they not made the mistake, they would not have entered into the contract. If the mistaken party is at fault for their mistake, they are obliged to compensate for any loss resulting from the invalidity of the contract. However, if the other party (the defendant) knew or ought to have known about the mistake, they are not entitled to claim compensation.

A mistake may occur in the declaration, in the motive, or in transmission:

• Mistake in declaration occurs when a party, unintentionally, communicates a statement that does not reflect their true will. This type of mistake is addressed in Article 31 of the Turkish Code of Obligations and is considered a fundamental mistake.

• Mistake in motive (also referred to as mistake in purpose or inducement) occurs when a party is mistaken about the facts that led them to conclude the contract. According to Article 32 of the Turkish Code of Obligations, “Mistake in motive shall not be deemed a fundamental mistake.” However, if the mistaken motive is regarded by the mistaken party as the basis of the contract, and such consideration is consistent with the principles of good faith applicable to commercial transactions, the mistake may be deemed fundamental, provided that the other party was, or ought to have been, aware of this basis.

• Mistake in transmission is regulated in Article 33 of the Turkish Code of Obligations. This refers to situations where the declaration of intent made during contract formation is incorrectly transmitted by an intermediary, such as a messenger or interpreter. In such cases, the provisions on mistake shall also apply.

Lawsuit for Annulment and Registration of Title Deed Based on Fraud (Deceit) as a Vitiation of Will

Fraud (deceit) is a frequent cause in defective will annulment lawsuits, particularly when a party is intentionally misled. Fraud (deceit) as a form of vitiation of will is governed by Article 36 of the Turkish Code of Obligations No. 6098. If one of the parties has entered into a contract as a result of deception by the other party, they are not bound by the contract, even if the mistake is not considered essential. The person who concludes the contract through fraud (the plaintiff) is deliberately misled by the fraudulent conduct of the other party (the defendant), causing them to fall into an error of motive. Since the will of the person deceived into entering the contract has been impaired, the contract may be annulled.

Lawsuit for Annulment and Registration of Title Deed Based on Duress (Threat) as a Vitiation of Will

Duress as a form of vitiation of will is regulated under Articles 37 and 38 of the Turkish Code of Obligations No. 6098. If one party concludes a contract as a result of threats made by the other party or a third person, they are not bound by that contract. In such cases, the individual is induced to contract through intimidation and coercion.

The element of duress is considered to be present if the person under threat has a justified belief that there is a serious and imminent danger to their own or a close relative’s personal rights or assets. If a person is led to conclude a contract under the threat of exercising a legal right or statutory authority, and the person making such a declaration derives excessive benefit from the other party’s distressed situation, the existence of duress is acknowledged.

Because the will of a person coerced into entering a contract is impaired, such a contract may also be annulled.

Statute of Limitations in Lawsuits for Annulment and Registration of Title Deed Based on Vitiation of Will

Pursuant to Article 39 of the Turkish Code of Obligations No. 6098:
“If a party concludes a contract as a result of mistake, fraud, or duress, and fails to declare within one year that they are not bound by the contract or to request the return of what has been delivered, starting from the moment they become aware of the mistake or fraud, or from the moment the effect of the duress ceases, the contract shall be deemed ratified. The fact that a contract rendered non-binding due to fraud or duress is deemed ratified does not eliminate the right to claim compensation.”

As can be understood from this provision, the party who becomes aware that their will was impaired during the conclusion of a contract due to vitiation of will has the right to annul the contract within one year from the date of discovery. The exercise of this right to annulment is not subject to any formal requirement. It may be exercised through a declaration of intent addressed to the other party, a defence, or the initiation of legal proceedings, provided it is done within one year from the date the vitiation of will was discovered.

This one-year period constitutes a preclusive (statute-barred) period, meaning that failure to act within this time frame results in the forfeiture of the right to annul the contract.

Possibility of Proving Claims by Any Type of Evidence in Lawsuits for Annulment and Registration of Title Deed Based on Vitiation of Will

In a defective will annulment lawsuit, the plaintiff may prove their claims by any type of evidence, including witness testimonies and expert opinions.In a lawsuit concerning the annulment and registration of title deed based on legal grounds such as mistake, fraud, or lesion (unfair advantage), the plaintiff alleged in their petition that they had transferred their property upon the persuasion of their son and daughter-in-law to support their daughter, who is not a party to the case, during financial hardship. They claimed that no payment had been made, that they were 71 years old, that they were deceived, that the transfer was made through fraud, and that the declared value in the contract was shown to be significantly below market value. Based on these assertions, the lawsuit was filed.

The court of first instance dismissed the case. The plaintiff appealed the decision within the legal timeframe, and the case was reviewed by the 1st Civil Chamber of the Supreme Court. In its decision dated 01.10.2012, numbered 2012/10938 E., 2012/10436 K., the Supreme Court ruled the following:

“As is known, fraud is generally defined as the act of deliberately creating a false belief in another person in order to induce them to make a declaration of intent, particularly to enter into a contract, or to maintain an already existing mistaken belief. While a mistake refers to being misled, fraud involves the act of misleading. As explained in Article 36/1 of the Turkish Code of Obligations No. 6098, which came into effect on 01/07/2012, if a party concludes a contract as a result of deception by the other party, even if the mistake is not essential, they are not bound by the contract.

If these conditions are met, the deceived party may retroactively terminate the legal relationship and demand the return of what was provided. Furthermore, fraud can be proven by any type of evidence, and the exercise of the right to annulment is not subject to any formality. The right of annulment may be exercised by making a declaration of will, raising a defence, or filing a lawsuit within one year from the date the fraud is discovered.

On the other hand, for a contract to be deemed defective due to unfair advantage (lesion) the disproportion between the consideration and counter-consideration must arise from one party knowingly exploiting a special condition of the other party, such as their financial distress, inexperience, or recklessness. To protect individuals who are compelled to enter into contracts or transfer property at significantly undervalued prices due to their desperate financial situation, Turkish law includes protective provisions. Article 28 of the Turkish Code of Obligations No. 6098, effective as of 01.07.2012, explicitly provides that if there is a disproportion between the mutual performances in a contract, and this disproportion arises from exploiting the disadvantaged party’s financial distress, improvidence, or inexperience, then the aggrieved party may either notify the other party that they are not bound by the contract and demand the return of their performance, or remain bound by the contract and request the correction of the disproportion.

Thus, for lesion (unfair advantage) to be recognized, both the objective element (significant disproportion between performances) and two subjective elements (existence of distress, inexperience, or recklessness on one side, and intent to exploit on the other) must be present. The existence of unconscionability grants the aggrieved party the right to file an annulment lawsuit and claim restitution, provided they notify the other party within one year from the contract date that they do not consider themselves bound by the agreement. This claim may be proven by any type of evidence.

It should be emphasized that in cases involving lesion, the primary focus must be on the disproportion between the parties’ performances. If the objective element is established, then the personal characteristics of the aggrieved party – such as age, health, social status, financial capacity, and psychological condition – must be thoroughly examined to determine the subjective element.

In the concrete case at hand, the court rejected the claim on the grounds that property ownership can only be acquired through a notarized deed and registration, and that the allegations must be proven strictly through written evidence. However, in light of the principles and facts outlined above, and under Article 203(ç) of the Code of Civil Procedure No. 6100, it is clear that claims based on vitiation of will or unconscionability in legal transactions may be proven not only through written documents but also through witness testimony and all types of evidence.

Nevertheless, the court failed to conduct an investigation in accordance with these principles. It did not hear the plaintiff’s witnesses, and the request to call witnesses was wrongly denied.

Therefore, the court should have conducted a thorough investigation in line with the parties’ claims and evidence, obtained concrete and satisfactory information from witnesses, determined the value of the disputed property as of the date of transfer through expert appraisal, and, if the fraud claim could not be substantiated, proceeded to evaluate the claim of unconscionability. A judgment should then have been rendered based on the findings. The court’s failure to do so and reaching a conclusion based on an incomplete inquiry is improper. The plaintiff’s appeal on this ground is justified. Accordingly, the judgment is REVERSED in accordance with Article 428 of the repealed Civil Procedure Code No. 1086, applicable pursuant to the provisional Article 3 of the new Code No. 6100.”

As clearly stated in the aforementioned decision of the Court of Cassation, claims in lawsuits for annulment and registration of title based on vitiation of will may be proven by any type of evidence, including genuine witness testimonies.