The Constitutional Court (AYM) annulled the rule stipulating that the market price of the share should be determined by the judge in the exercise of the right of pre-emption in shared ownership, finding it unconstitutional. The cancellation clause will come into force after nine months.
According to the decision published in the Official Gazette, 13 separate civil courts of first instance and CHP applied to the Supreme Court, claiming that the 2nd paragraph of Article 734 of the Turkish Civil Code No. 4721, amended by Law No. 7571 in 2025, is unconstitutional.
In the cancellation applications, it was stated that the regulation stipulates that the pre-emption right will be exercised by filing a lawsuit against the buyer, and that the market price of the share in question will be determined by the judge without delay.
In the applications, it was stated that before the change in the legal regulation, the right of pre-emption could be used by paying the sales price and title deed expenses, and that changing this to "market price of the share and title deed expenses" was incompatible with the principle of trust in the land registry, and that the concepts regarding the date by which the market price would be determined and the "period" were unclear.
As a result of its investigation, the Constitutional Court annulled the said regulation, finding it unconstitutional. It was decided that the cancellation clause would come into force after 9 months.
The relevant article states, "The right of pre-emption is exercised by filing a lawsuit against the buyer. The market price of the share in question is determined by the judge without delay. The owner of the right of pre-emption is obliged to deposit the determined market price and the title deed expenses falling to the buyer in cash to the place determined by the judge within the definite period given by the judge for interest. If this obligation is not fulfilled within the definite period given, the registration of the share in the name of the pre-emption right owner cannot be decided. The deposited price is paid to the relevant party together with the interest upon the finalization of the judgment." It contained the provision.
From the justification of the decision
In the Constitutional Court's decision, Article 35 of the Constitution states: "Everyone has the rights to property and inheritance. These rights can only be limited by law for the purpose of public interest. The use of the right to property cannot be contrary to the public interest." It was reported that the provision was included.
In the decision, it was stated that the right of pre-emption creates a legal relationship that concerns the interests of three parties: the seller, the buyer and the owner of the right of pre-emption, and that pre-emption is also within the scope of property rights.
In the decision, it was stated that the holder of the pre-emption right was given a priority right to purchase other shares due to being a shareholder of the same real estate, and that the share subject to the pre-emption right was "limited to the market price to be determined by the judge" with the rule subject to objection.
In the decision, which was reminded that the Supreme Court had concluded that the pre-emption right was not contrary to the Constitution in a previous application, "It is clear that if the legal pre-emption price is not the sales price agreed between the stakeholder and the third party buyer, the terms of the sales contract subject to the pre-emption right will change and turn into a different sales relationship." evaluation was included.
In the decision, it was stated that the regulation requested to be annulled "eliminates the will of the parties by stipulating that the price of the share will be determined by the court based on the market value, and not based on the sales price agreed upon by the parties with their free will."
In the decision, which stated that this resulted in the payment of the price determined by the court instead of the price agreed in the sales contract, "As a result, it was concluded that a fair balance was not established between the interests of the parties to the legal relationship with the rule, which eliminates the will of the seller and the third party buyer, causes the third party buyer to gain unfair profits or suffer losses, and puts the owner of the pre-emption right in a legally uncertain position. For the reasons explained, the Constitutional Court decided that the rule is unconstitutional and annulled." statements were included.
