Legal Action Types Based on In Rem Claims Concerning Immovable Property

1.  Introduction

In legal practice, the action commonly referred to as the “action for annulment and registration of title” in fact encompasses two distinct legal action types that are based on in rem claims concerning immovable property. These actions are the action for compulsory registration and the action for rectification of an improper registration. Although differing significantly in terms of their legal nature, underlying facts, and consequences, these two actions are frequently treated under the same heading in practice, which causes significant conceptual confusion. This article examines both types of actions separately, highlighting their fundamental differences and their practical implications.

Accordingly, the definitions, legal nature, and conditions of the action for compulsory registration, which may be filed pursuant to Article 716 of the Turkish Civil Code, and the action for rectification of improper registration, which may be filed pursuant to Article 1025 of the same Code, are discussed separately below.

Keywords: Action for Compulsory Registration, Action for Rectification of Improper Registration, Land Registry, Deletion of Registry Entry

2. Action for Compulsory Registration

2.1. Definition of the Action for Compulsory Registration

According to Article 705 of the Turkish Civil Code, ownership of immovable property is generally acquired through registration. Similarly, pursuant to Article 1021, in rem rights that are subject to registration do not attain legal existence until such registration occurs. In such cases, the registration is considered to have a constitutive effect.

Although the registration of in rem rights over immovable property generally has a constitutive effect, there are certain circumstances in which these rights may be acquired prior to registration. This is explicitly regulated in Article 705(2) of the Turkish Civil Code, which states: “Ownership is acquired before registration in cases of inheritance, court decision, enforcement, occupation, expropriation, and other cases prescribed by law.” This provision demonstrates that the situations in which ownership can be acquired before registration are not strictly enumerated but include other legislatively prescribed instances. In such cases, registration in the land registry is of declaratory, not constitutive, nature. Nevertheless, even in these instances, unless the right is registered, the holder cannot exercise the powers of disposition associated with the in rem right. This is because the final sentence of Article 705(2) explicitly conditions the exercise of disposition rights on registration.

A legal relationship involving the transfer of ownership of immovable property entitles the creditor to demand the registration of the immovable property in their name. Similarly, a legal relationship establishing a limited in rem right entitles the creditor to demand the establishment of such a right in their favor. As is evident from Article 716 of the Turkish Civil Code, in an action for compulsory registration, the claimant does not yet hold ownership or any limited in rem right at the time of the action. Rather, the claimant asserts their right to demand specific performance based on their contractual entitlement arising from the law of obligations. In cases where the debtor fails to fulfill the obligation in due time, the creditor may initiate this action under Article 716 of the Civil Code.

2.2. Legal Nature of the Action for Compulsory Registration

Absolute rights over property are defined in our legal system as rights in rem, whereas claims are generally considered relative rights (obligational rights).

A claim grants its holder the authority to demand the performance of an obligation from the debtor within the scope of a specific legal relationship. In this respect, a claim can be asserted only against the debtor, who is a party to the obligation, which reveals its relative nature. One of the fundamental distinctions between rights in rem and claims is that rights in rem, as absolute rights, may be asserted against everyone, whereas claims may only be asserted against the counterparty to the obligational relationship—that is, they are relative in nature.

In light of this, since the right to demand registration arises from a claim, it is a relative right that is transferable and subject to a statute of limitations.

2.3. Features of the Action for Compulsory Registration

2.3.1. Relative Nature

As previously explained, a claim (obligational right) is of a relative nature. Accordingly, it can be asserted only against the debtor.

In the context of immovable property, actions for compulsory registration based on a personal claim can, as a rule, be brought only against the debtor. Their assertion against third parties is possible only in exceptional cases, specifically when the personal right is annotated in the land registry pursuant to Article 1009 of the Turkish Civil Code.

If the promise of sale concerning an immovable property is annotated in the land registry, the right to demand registration based on such a promise may also be asserted against third parties who later acquire rights over the immovable, pursuant to Article 1009(II) of the Turkish Civil Code. Consequently, a right that is generally effective only between the parties to the contractual relationship becomes enforceable against subsequent acquirers (derivative successors) of the property through the annotation. This grants the annotation the character of a real obligation (eşyaya bağlı borç). As a result, the person who acquires the property not only obtains ownership but is also deemed to assume the obligation to register the immovable arising from the promise of sale made by their predecessor. Therefore, the request for registration may now be directed not only against the original debtor, but also against the derivative successor, and the action to be filed in such a case will still qualify as an action for compulsory registration.

2.3.2. Subject to Statute of Limitations

A claim for registration based on a contract is, in principle, subject to a ten-year statute of limitations pursuant to Article 146 of the Turkish Code of Obligations, starting from the date on which the obligation to establish an in rem right over the immovable property becomes due.

On the other hand, in restitution claims arising from unjust enrichment, the limitation periods of two and ten years, as stipulated in Article 82 of the Turkish Code of Obligations, apply. Accordingly, in an action for compulsory registration brought on the basis of unjust enrichment, for the purpose of reclaiming an immovable property held without legal justification, these limitation periods shall be applicable.

2.3.3. Assignability

As discussed under its legal nature, the right asserted in an action for compulsory registration is a claim. At the time of filing the lawsuit, the claimant does not yet hold ownership or any in rem right, but seeks to acquire such a right through the action based on their existing claim. Accordingly, the right to demand registration, being a claim, is assignable.

This right may be assigned to a third party either prior to initiating the lawsuit under the provisions governing the assignment of claims, or after filing the lawsuit pursuant to Article 125 of the Code of Civil Procedure. It must be emphasized, however, that under Article 183 of the Turkish Code of Obligations, such assignment is valid only if it is not prohibited by law, contractual agreement, or the nature of the obligation itself.

3.  Action for Rectification of Improper Registration

3.1. Definition of the Action for Rectification of Improper Registration

Improper registration is defined in Article 1024(2) of the Turkish Civil Code as follows: “A registration that is based on a non-binding legal transaction and lacks a legal cause is improper.” The legislator refers to entries made in the land registry without a valid legal basis or on the basis of an invalid legal transaction as “improper registrations” and has provided a legal remedy in the form of the action for rectification of improper registration, which is the subject of detailed analysis in this article.

The action for rectification of improper registration is a crucial legal mechanism aimed at preserving the delicate balance between the protection of ownership or limited in rem rights and the principle of reliance on the accuracy of the land registry. Through this action, individuals whose ownership or limited in rem rights have been infringed seek to reclaim their rights by obtaining a new registration in their name.

The legislator, in Article 1025 of the Turkish Civil Code, explicitly recognizes this right by stating: “If an in rem right has been improperly registered, or a registration has been improperly deleted or amended, the person whose in rem right has been violated may bring an action for the rectification of the land registry.” Thus, where the acquisition, deletion, or modification of an in rem right has occurred through improper registration, the affected right holder may seek to reclaim their right through an action for rectification.

3.2. Legal Nature of the Action for Rectification of Improper Registration

In an action for compulsory registration, the claimant holds a personal (obligational) right and is not yet the holder of an in rem right at the time the lawsuit is filed. In contrast, in an action for rectification of improper registration, the claimant is already the holder of an in rem right over the immovable property that is the subject of the dispute. The impropriety in registration may exist from the outset or may arise subsequently.

The action for rectification of improper registration is significant in enabling the holder of an in rem right to benefit from the presumption of accuracy associated with the land registry. According to Article 992 of the Turkish Civil Code, in order to benefit from the presumption of correctness concerning rights in immovable property, the right must be registered in the land registry under the name of the rightful owner.

One of the major legal issues arising from cases of improper registration concerns the acquisition of in rem rights by third parties acting in good faith, based on the principle of reliance on the land registry, as set out in Article 1023 of the Turkish Civil Code. Within this framework, due to the erroneous entry in the registry, the immovable property that had previously been included in the claimant’s assets ceases to belong to them and becomes part of the bona fide third party’s estate. Similarly, if a limited in rem right is established in favor of a bona fide third party over the improperly registered property, the rightful owner becomes obliged to tolerate that right and refrain from interfering with it. This results in the land registry, despite its unlawful content, producing direct legal effects on in rem rights to the detriment of the rightful owner.

3.3. Features of the Action for Rectification of Improper Registration

3.3.1. Based on In Rem Rights

As elaborated above, the right asserted in the action for rectification of improper registration is an in rem right. Since in rem rights are absolute rights, they may be asserted against third parties. However, it must be noted that pursuant to Article 1023 of the Turkish Civil Code, the rights of bona fide third parties who act in reliance upon the registered entries in the land registry are protected.

3.3.2. Not Subject to Statute of Limitations or Forfeiture Periods

Because the right underlying the action for rectification of improper registration is an in rem right, such claims are not subject to a statute of limitations or forfeiture periods. This aligns with the fundamental principle that in rem rights can be asserted at any time without temporal limitation. Nevertheless, Article 712 of the Turkish Civil Code introduces an exception by allowing for the acquisition of immovable property through ordinary acquisitive prescription.

However, acquisition through prescription does not occur solely due to the passage of time. According to Article 712, in addition to the time requirement, other conditions such as good faith, uninterrupted possession, and eligibility for ownership acquisition must also be satisfied.

3.3.3. Non-Assignable Nature

The action for rectification of improper registration is categorically distinct from the action for compulsory registration and, due to its nature, the right it is based upon—being an in rem right—cannot be assigned. This is because the legal foundation of this action lies in possessory claims (rei vindicatio) and the prevention of unlawful interference.

In Turkish property law, ownership or limited in rem rights over immovables may only be transferred through registration, except in cases expressly stipulated by law. Since the acquisition of in rem rights depends on registration in the land registry, the transfer of the underlying right during the course of the lawsuit is not legally possible.

4. Conclusion

In an action for compulsory registration filed pursuant to Article 716 of the Turkish Civil Code, the claimant is the person who holds a personal right to request the registration of the immovable property in their name. In contrast, in an action for rectification of improper registration filed under Article 1025 of the Turkish Civil Code, the claimant is the person whose in rem right has been infringed due to an improper entry in the land registry. This distinction clearly reflects the structural and functional differences between the two types of legal actions.

In disputes concerning the land registry, the actions for compulsory registration and rectification of improper registration are frequently mistaken for a single type of action, often referred to in practice under the general label of a “lawsuit for annulment and registration of title.” However, these are two fundamentally distinct legal actions in terms of their legal nature, the type of right they are based on, their enforceability, the applicability of time limitations, and their assignability.

The action for compulsory registration is based on a personal right (a claim) and is filed by a person who does not yet hold an in rem right but seeks registration of an immovable in their name based on a contractual obligation. The right asserted in such actions is of a relative nature and can only be enforced against the counterparty to the debt relationship. Moreover, such actions are subject to statutes of limitations and the underlying right is transferable.

Conversely, the action for rectification of improper registration, as regulated under Article 1025 of the Turkish Civil Code, is brought by true holders of in rem rights who have suffered a violation due to an improper registration in the land registry. The right asserted in this action is an in rem right, enforceable against third parties. Because of its absolute nature, the right is not subject to statutes of limitations or forfeiture periods and is not transferable.

In conclusion, although both types of actions ultimately result in in rem consequences concerning immovable property, failure to recognize the essential differences between them leads to significant conceptual and procedural confusion in practice. The legal nature, the type of right invoked, and the enforceability of these claims differ substantially and must be carefully distinguished.

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