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Must a purchase agreement be in Turkish?

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Old 16-11-2006, 10:49   #1
Nic

 
Varsayılan Must a purchase agreement be in Turkish?

Dear all,

I am Danish citizen and I am considering purchasing a property at the Bodrum peninsula.

The agreement with the selling (Turkish) corporation is in both Turkish and English, but contains the following clause:

"In the event of any ambiguity arising between the interpretations of the Turkish and English texts of this contract, the Turkish version shall prevail. The English version is merely to assist those who do not understand Turkish."

As I obviously would like to be able to rely on the English text, I suggested that the English text should prevail. However, the seller told me that Turkish courts will only accept the agreeement if it is in Turkish.

Is it true that the agreement must be in Turkish to be valid and enforceable under Turkish law and in Turkish courts?

Any input on this would be very helpful.

Best regards,
Nicolaj
Old 16-11-2006, 15:42   #2
İzzet Hamle

 
Varsayılan

Please be careful !!!

Under Turkish Law:

1 - An agreement regarding transfer of title of an immovable property (i.e. land, flat, house) which has not been signed by the parties or by their attorneys of fact at the land registry does not give any right to claim title on the immovable property even if it contains explicit undertaking of the seller and/or owner towards the buyer for the transfer of title against buyer's fulfilment of certain obligations and payment of the agreed consideration.

2- Such agreement, not signed at the land registry can not be interpreted as seller's covenant to transfer title of the property in the future, either. Such promise shall be valid only if it was declared at the notary public.

3- In other words, you would not be entitled to obtain the title by relying on these documents at the court, irrespective of whether those were prepared in English, in Turkish or both, which is only a matter of choice. Validity of an agreement is not subject to being drawn up in Turkish language.

4- Even if some liquidated damages/penalty fees are stipulated in the contract, applicable in case of non performance or delay by seller/owner, these conditions would not be enforceable, either, within the light of the explanations in paragraphs 1 and 2 above. The only remedy you may have in this case, where the seller fails to transfer the title is, to sue the seller under unjust enrichment provisions of the Turkish Code of Obligations, and claim for the payments you made to the Seller.

5- There is one exception to the above. If the buyer fulfilled his obligations towards the seller who did not claim invalidity of the contract but then refuses to transfer the title, the buyer may be granted with title by the court on the grounds that claiming invalidity of such sale-purchase agreement at that stage would be against bona fide. However, this is only an arguement that we, lawyers can use if our client has no other remedy, and of course, the most important of all, if the property had not been sold by the owner to a bona fide third party in due course. Therefore, I can not advise you to proceed further by relying on this exception, and yet there is no guarantee that the seller is the owner of the property. I have come accross with many cases involving Bodrum area, where contractors/sellers do or do not own the property. There are different systems under Turkish Law where the contractor/developer may agree with owner of a land, who refuse to transfer title of the property to the contractor at the beginning, but the contractor trying to sell the property in advance, although it is not registered to his name. There are systems that the land owner may transfer the title of the contractor's portion in advance but in order to secure completion of the construction, parties create lien on the transferred portion of the land. The issue is rather complex, which may be discussed in the future.

Consequently, I would like to advise you to ask the seller to provide you with a copy of the title deed. I assume you may get several answers from the Seller, which can be evaluated here, if you forward them to this site.

Lastly, on a personal note, I would like to draw all of the visitors' attention to the fact that, one of the members once said to a visitor "believe me, 200 pounds for an advise on the telephone is too much." I strongly protest that comment. Who can ever judge the fee raised by the lawyer, which was not agreed by the client !!! It is up to the client whether to accept the fee or refuse to work with that lawyer. Once accepted, it is of course possible to ask for intervention of the bar, or even the court, according to the circumstances. As in other jurisdictions, the fee is not merely based on the amount of time to be spent by the lawyer, but also the importance of the matter, the value involved, the experience of the lawyer, etc. If one dare to ask how much I would charge for such an advice I gave here, if I am required to pass it on the telephone professionally, my answer would differ according to the criteria I mentioned above. It may be even thousands of pounds. Therefore, I am deeply disturbed by the critism referred to my colleauge in his absence. My last comments would be, rather than critising the fees raised by other lawyers, try to give legal opinion here, and where relevant, challenge other opinions and solve problems.

At least be happy that you have such a site where you can obtain/give advise, free of charge.

Best regards

I.C.H
Old 16-11-2006, 15:57   #3
İzzet Hamle

 
Varsayılan

Let's discuss Sandra's comment which says "Dear Nicolaj,
they are Turkish Lawyers and basen in London and Turkey.They are quite good."

Assume that Nicolaj consults the lawyers mentioned in Sandra's message but in the end not satisfied with the service he received from them, even lost some of his rights owing to malpractice. He sues Sandra for damages on the grounds that he relied on the recommendation passed by Sandra. Sandra refuses the claim on the grounds that she indeed used the lawyers' services for Turkish law work in that centre which was quite satisfactory, and Nicolaj, being a reasonable man should not have merely relied on her recommendation.

One of the lawyer member of the site complains about the site to Istanbul Bar. The bar's search did not give any positive result to obtain names of the lawyers residing in Turkey. It sends a letter to Sandra asking about the name of the lawyer he found and worked in Turkey through this site. Sandra refuses to give out the name but the lawyer who made the complaint to the bar sues Sandra for moral damages under unjust competition.

Nicolaj sues Istanbul Bar on the grounds that it did not take appropriate action to stop the advertisement at that site, which also played an important role in the damages he suffered.

Any comments?
Old 16-11-2006, 16:29   #4
Av. Bülent Sabri Akpunar

 
Varsayılan

Dear ICH,

IMHO, mere recommendation cannot be deemed as a valid reason for indemnity claims, as long as the it is not settled that the advisor is in economical terms related with the third parties or acted in an immoral manner knowingly. As it is strictly decreed by the Turkish Code Of Obligations, Art. 41/2 " One who intentionaly gives harm to another by means of an “immoral act” is liable to the damages occurred."
Old 18-11-2006, 16:45   #5
Nic

 
Varsayılan

Dear ICH,

Thank you very much for your reply. I will be issuing af Power of Attorney to a Turkish solicitor so that he can sign the agreement for me at the notary's office. So that part should be taken care of.

About the choice of language, the seller maintains that Turkish courts will only accept the turkish text. This is one of the replies I received:

"I do appriciate your concern about contract being in English. However, turkish part of the contract is exactly alike. We are using an official translator for that and the fee you are paying is including translator fee as well. She signs the contract as well as ourselves. According to Turkish laws, incase of any conflict, courts only accepts turkish versions of the contracts."

Thank you again for your help.

Best regards,
Nicolaj
Old 20-11-2006, 12:46   #6
İzzet Hamle

 
Varsayılan must a purchase agreement be in Turkish

Dear Nicolaj,

The information passed to you by the seller is irrelevant. Turkish Court would of course look into Turkish version of the text, if it is written on the contract that Turkish text would prevail. If it is written the opposite, than the document would be translated by a notary translator and stamped by the notary. This is what we call "official translation" accepted by the court. The notary would collect stamp duty in the amount of % 0.75 according to the property value stipulated in the contract. Therefore, you should be more careful now. If any piece of information passed to you is not relevant, the other information passed to you is also under risk of not being relevant, either.

For example, do not feel secure since there is a lawyer involved in signing of the contract. He can not do more than what he has been instructed by you. If you instruct him to sign that document, he will do but he is not under responsibility to inform you that you may face problems in the future. Your case is somehow similar with one of my previous cases in Bodrum. There was a lawyer who would signt the contract which would create problem in the future. You should ask seller to provide you a copy of the title deed which would be transferred to you in the future. This is a must indeed. At least there must be a reference to a flat/house registered with particular Land Registry Office. The seller/the constructor may not have taken over the the title deeds corresponding to flats/houses that he would built. If so, there is a risk.

You may send a copy of the contract to our email address info@hamle.av.tr or fax it to +90 216 418 37 19 so that we check it and discuss its contents in this forum.

Best regards

I.C.H
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