Article 25 MÖHUK – Contracts concerning immovables

Article 25 of Turkish Law No. 5718 on Private International Law and International Civil Procedure (MÖHUK) is the special rule for contracts concerning immovable property (taşınmaz): they are governed by the law of the country where the property is located. If you live in Germany or the Netherlands and own a flat, a house or a plot of land in Turkey, this article applies when you sell or let it.

Article 25 MÖHUK – text

Unofficial translation:

Contracts concerning immovables
Article 25 – (1) Contracts concerning immovables or their use are governed by the law of the country where the immovable is located.

Turkish original:

Taşınmazlara ilişkin sözleşmeler
MADDE 25 – (1) Taşınmazlara veya onların kullanımına ilişkin sözleşmeler taşınmazın bulunduğu ülke hukukuna tâbidir.

Legislative reasoning

According to the reasoning of the government bill, the article is a new provision with no counterpart in the old Law No. 2675. The reasoning describes the rule that all contracts concerning immovables are governed by the law of the place where the property is located (lex rei sitae) as a generally accepted, universal principle, and gives this as the reason for writing it into the law.

Explanation

The article is a single sentence and covers two kinds of contract: contracts concerning the property itself (such as a sale, a promise of sale (satış vaadi) or a gift) and contracts concerning its use (such as a lease).

Article 24 MÖHUK, the general rule for contracts, gives priority to the law chosen by the parties and, without a choice, looks to the law of the party providing the characteristic performance. Article 25 says nothing about a choice of law at all; it points straight to the law of the country where the property is located. Where the contract was signed, where the parties live and which nationality they hold do not change this result.

The article only determines the law governing the contractual obligations. The transfer of ownership and other rights in rem (aynî haklar) in the property are governed by Article 21 MÖHUK. The form of transactions concerning rights in rem in immovables is also governed by the law of the country where the property is located (Article 21(4) MÖHUK). This is where immovables depart from the general rule on the form of legal transactions (Article 7 MÖHUK). Under Turkish law, a contract aimed at transferring ownership of immovable property is valid only if it is made in official form (resmî şekil) (Article 706(1) of the Turkish Civil Code, TMK).

The article does not expressly say what happens if the parties have chosen a law. This point is debated. There is no express statutory rule on it and no binding court decision. The wording of the article and the phrase “all contracts” in the reasoning suggest a connecting rule that leaves no room for the parties’ choice; this is also the author’s assessment. How a court would decide this in a specific dispute is uncertain.

What this means if you live abroad

Letting your flat in Turkey. A lease between a landlord living in Germany and a tenant in Turkey is governed by Turkish law, that is, by the lease provisions of the Turkish Code of Obligations. Having signed the lease in Germany, in German, does not change that. The limits of Turkish law apply to matters such as rent increases (rent increase limit in Turkey). If you let the flat to tourists for short stays, you also need to check the permit rules (short-term rental permit).

Sale and promise of sale. The sale of immovable property in Turkey and a promise to sell it are governed by Turkish law, and Turkish law also governs their form (Article 21(4) MÖHUK). A sale contract you had drawn up by a notary in Germany therefore does not, on its own, transfer ownership at the land registry (tapu) in Turkey. You can have the transaction at the land registry carried out from abroad by a representative acting under a power of attorney (vekâletname).

The reverse case. If someone living in Turkey buys or rents a house in Germany or the Netherlands, a Turkish court will apply German or Dutch law to that contract. For the content of that law, you need to consult a lawyer admitted in that country.

Which court? The applicable law and the place where a case can be brought are separate questions. The international jurisdiction of the Turkish courts is determined by the domestic rules on territorial jurisdiction (Article 40 MÖHUK).

For other property matters, see the real estate law page.

Frequently asked questions

Can I agree that German law applies to the lease of my home in Turkey?

Article 25 MÖHUK subjects contracts on the use of immovable property to the law of the country where the property is located and says nothing about a choice of law. Whether such a choice is valid is debated; in the author’s assessment, Turkish law applies.

Is a sale contract I signed before a notary in Germany valid in Turkey?

The form of transactions concerning rights in rem in property in Turkey is governed by Turkish law (Article 21(4) MÖHUK). Under Turkish law, a contract aimed at transferring ownership of immovable property must be made in official form (Article 706(1) TMK).

We signed the lease in Germany. Which law applies?

If the property is in Turkey, Turkish law. The place where the contract was signed does not change this (Article 25 MÖHUK).

Sources

Questions about your case

If you are letting or selling a flat in Turkey and would like to know how a contract signed abroad is assessed under Turkish law, you can book a video call, a phone call or a meeting in Düsseldorf on the appointment page, or send a written question through the contact form. Consultations are held in Turkish and cover Turkish law only (§ 206 BRAO); for questions on property in Germany or the Netherlands, please consult a lawyer admitted there. Useful to have ready:

the land registry details of the property (province, district, block and parcel),
the text of the lease or sale contract,
where the contract was signed and before whom.