|
I.REAL ESTATE ACQUISITION
OF FOREIGN REAL PERSONS IN TURKEY
Real estate acquisition of foreign real and legal persons has
been regulated in the article 35 of the Land Registry Law numbered 2644
with law numbered 5444 and dated December 12,2005 which was established
in the Official Gazette of 26046 numbered and dated January 7,2006. New
fundamental principles was regulate with this new law for acquisition
real estate of foreign real persons and and trade companies having legal
personality and established in foreign countries according to the laws
of these countries in Turkey.
New form of the article 35 of the Land registry Law is as follows:
“With the reservation of reciprocity and compliance with legal
restrictions, foreign real person can acquire real estates for the
purposes of using as residence or business aims in Turkey that are
separated and registered for these purposes in the implemented
development plans or localized development plans. The same conditions
shall be stipulated in the establishment of limited real rights on real
estates. The total area of the real estates and limited real rights on
real estates that a real person of foreign nationality can acquire all
over the country can not exceed 25.000 m2. Within the same conditions
set out in this paragraph Council of Ministers is authorized to increase
the area up to 30 hectares.
Companies having legal personality established in
foreign countries according to the laws of these countries can acquire
real estates and limited real rights on real estates in Turkey according
to the provisions of special laws.
In case of establishing mortgage in Turkey in favor of foreign real
persons and trading companies having legal personality established in
foreign countries according to the laws of these countries the
conditions and restrictions set out in first and second paragraphs shall
not be applied.
With the exception of foreign real persons and
trading companies having legal personality established in foreign
countries according to the laws of these countries, no one can acquire
real estates and limited real rights on real estates in Turkey.
For the real estates acquired through legal
inheritance by citizens of a country that have reciprocity with Republic
of Turkey, the conditions and restrictions set out in the first
paragraph shall not be applied. For the real estates acquisition by
means of transactions depending on death apart from legal inheritance,
the conditions and restrictions set out in the above paragraphs shall be
applied. Real estates and limited real rights on real estates acquired
through legal inheritance by citizens of countries that do not have
reciprocity with Republic of Turkey shall be liquidated after their
transfer transactions are performed.
De jure and de facto circumstances shall be taken as
basis in determination of reciprocity. In implementation of this
principle for the citizens of countries that have not granted land
ownership rights, it's stipulated that the rights granted by a foreign
country for real estate acquisition to its own citizens should also be
granted to citizens of the Republic of Turkey.
The Council of Ministers is authorized to determine the places where
foreign real persons and trading companies having legal personality
established in foreign countries according to the laws of these
countries can not acquire real estates and limited real rights on real
estates within the areas in terms of irrigation, energy, agriculture,
mine, and protected areas, and belief and cultural featured areas and
special protection areas and touchy areas due to flora and fauna
features, strategic areas due to public interests and country security
by means of the proposals of relevant public institutions and
organizations with registry based coordinated maps and plans, and the
rate of the areas where foreign real persons can acquire real estates
not more than 5 per thousand according to the provinces and provinces’
areas. Proposals of the public institutions and organizations within
these scope shall be examined, appreciated and submitted to the Council
of Ministers by means of a commission that carries out studies within
the authority set out in this paragraph and constitutes of relevant
representatives of administration in the structure of the ministry that
General Directorate of Land Registry and Cadastre is related to.
Map and coordinate values concerning the military
forbidden zones, military and private security zones and strategic zones
that are determined after the enforcement of this law and their
alterations shall be given without any delay by the Ministry of National
Defense to the ministry that General Directorate of Land Registry and
Cadastre is related to.
The parcels needed to be expropriated or to be
annotated on land register due to be in the areas determined in the
above paragraphs shall be notified by relevant institutions to relevant
Land Registry Offices.
The real estates and limited real rights on real estates acquired
contrary to the provisions of this article or determination of misuse
according to the purpose of acquisition without legal necessity shall be
converted to value and paid to owner of unless the real estates
liquidated by the owner within the period given by Ministry of Finance.”
I.1.RECIPROCITY PRINCIPLE
In the new regulation, instead of exact equivalent implementation of
reciprocity principle, it's stipulated that the rights given by a
foreign country to its own citizens or trade companies having legal
personality and established according to its own laws, should also be
given to citizens and trade companies of the Republic of Turkey.
The Council of Ministers expressed what should be understood from the
reciprocity principle in its decision dated May 29, 1940 and numbered
2/13394. According to this decision, in addition to legislative
regulation of reciprocity principle, practical applicability of it is
also required for its existence. By this decision, in which it's taken
into consideration that reciprocity in law will not indicate actual
situation, restrictions encountered in a foreign country by the citizens
of the Republic of Turkey, in case of their application, are wanted to
be taken as a basis in implementation of reciprocity. Therefore, for the
existence of reciprocity between our country and a foreign country about
real estate acquisition, reciprocity must be both in law and in practice.
According to this principle, for real estate acquisition of a foreign
country's citizen or trade company in our country, the citizens and
trade companies of the Republic of Turkey should also have the right to
acquire real estate in this foreign country and this right must be
accepted by laws and must be practically applicable.
I.2.EXCEPTIONS OF RECIPROCITY PRINCIPLE
Although the first condition is reciprocity for real estate
acquisition of foreign real persons in our country, reciprocity
principle has some exceptions in terms of real persons. These exceptions
are as follows:
a. Since haymatlos persons have no state citizenship, there isn't any
state to decide about reciprocity. For this reason, haymatlos persons
are exempted from reciprocity principle.
b. According to the article 7/2 of "Convention on Legal Situation of
Refugees" dated July 28, 1951 and ratified by Turkey with the law dated
August 26, 1961 and numbered 359, the refugees are exempted from
reciprocity principle in a country after three years of residence. The
refugees in Turkey are also subjected to the same provision. It is
enough for refugees to prove this situation with an official document
for exemption.
c. According to the article 8/E of the Law for Encouragement of Tourism
numbered 2634, foreign real and legal persons who want to make
investment for tourism objective in Turkey, can acquire real estate by
the decision of the Council of Ministers in tourism areas and centers
being exempted from reciprocity principle and restrictions formulated
for foreigners.
|
I.3.LEGAL RESTRICTIVE PROVISIONS
The second condition for real estate acquisition of foreign real
persons in our country is to comply with restrictive provisions
involved in law. Some restrictions are involved in our laws
concerning real estate acquisition of foreigners. These
restrictive provisions are as follows:
a. According to regulations involved in the Military Forbidden
Zones and Security Zones Law numbered 2565 which restricts
geographically real estate acquisition of foreigners in our
country, it is not possible to sell, transfer and rent real
estate located within military forbidden zones and security
zones, to foreign real and legal persons.
b. According to the article 35 of the Land Registry Law numbered
2644, foreign real persons can not acquire real estate more than
2,5 hectares in our country, however for acquisition up to
thirty hectares, decision of the Council of Ministers is
required. Legal inheritance is exception of this rule.
I.B. REAL ESTATE
ACQUISITION OF FOREIGN trade companies having legal personality
IN TURKEY
Companies having legal personality established in foreign
countries according to the laws of these countries can acquire
real estates and limited real rights on real estates in Turkey
according to the provisions of special laws.
Relevant special laws:
- Law for Encouragement of Tourism numbered 2634
- Petrolium Law numbered 6326
- Industry Regions Law numbered 4737
In case of establishing mortgage in Turkey in favor of foreign
real persons and trading companies having legal personality
established in foreign countries according to the laws of these
countries the conditions and restrictions set out in first and
second paragraphs shall not be applied.
With the exception of foreign real persons and trading companies
having legal personality established in foreign countries
according to the laws of these countries, no one can acquire
real estates and limited real rights on real estates in Turkey.
I.C.REAL ESTATE ACQUISITION OF
FOREIGN CAPITAL COMPANIES
The expression of "foreign capital companies" is usually
confused with the expression of "foreign company".
First of all, it should be stated that "foreign capital
companies" are established according to the provisions of the
Turkish Trade Law in Turkey and enrolled in Turkish Trade
Register. In other words, these countries are subjected to the
legal provisions of the Republic of Turkey. Only, the whole or
part of their capital belongs to foreign real and legal persons.
Availability of foreign shareholders within the company will not
include it within the status of foreign legal personality;
because nationality of the company and nationality of its
shareholders are different matters.
The Law for Encouragement of Foreign Capital numbered 6224 and
dated January 18, 1954 was repealed by Foreign Direct Investment
Law numbered 4875 and dated June 5, 2003 that entered into
effect being published in the Official Gazette numbered 25141
and dated June 17, 2003, new provisions were adopted to
encourage and increase foreign direct investments, to protect
rights of foreign investors, and to transform permission and
ratification system to informative systems in realization of
foreign investments.
With regard to the subject, a circular numbered 1363-100/841 and
dated August 7, 2003 was announced to all our units through our
regional directorates and it was stated that implementation
would be carried out within the framework of the following
statements.
By the Foreign Direct Investment Law numbered 4875, foreign
investors are subjected to equal treatment with domestic
investors; permissions and ratifications like investment
permissions, company establishment permissions, were removed.
Moreover, companies having legal personality that foreign
investors participate in or establish, in our country, are
allowed to acquire real estate or limited real rights in areas
where acquisition of these rights is allowed for Turkish
Citizens.
Companies established according to the repealed Law numbered
6224 or that will act according to the Law numbered 4875 which
is about the activities of foreign capital companies in our
country, are considered as companies of the Republic of Turkey,
according to criteria of establishment place or administration
center. For this reason, real estate acquisition and other
demands concerning land register of foreign capital companies
that either obtained activity permission according to the
repealed Law for Encouragement of Foreign Capital or will act
according to the Foreign Direct Investment Law numbered 4875,
are concluded by relevant Land Registry Offices implementing the
same methods and rules as for companies established according to
the Turkish Trade Law, after examining authorization documents
given by the Trade Register Authorities that indicate the
competent person and competence for real estate acquisition of
the company.
II.TRANSFER
It is free to transfer through banks and private
financial institutions, revenue and value of sale earned from
real estate and real rights acquired by foreigners with or
without exchange of foreign currency.
III.AUTHORITY OF APPLICATIONS
By the article 26 of the Land Registry Law numbered
2644, the duty and authorization to regulate contracts
concerning property and real rights excluding property were
given to Land Registry Offices.
Foreigners who want to acquire real estate or benefit from real
rights apart from property will make their applications to the
Land Registry Office where the real estate is located.
Detailed information about the subject can be provided from the
General Directorate of Land Registry and Cadastre.
IV. REQUIRED DOCUMENTS FOR
APPLICATION
There is no difference between Turkish citizens and
foreigners in terms of required documents for application.
IV.A. In terms of Real Persons,
a. Title deed of the real estate if available, otherwise a
document indicating the city block and parcel of the real estate
or verbal statement of the owner.
b. Identity card or passport of foreigner
given by his/her own country and two small photographs.
c. If the person applying for demand is
representative, a power of attorney of the representative, and
identity card with photograph, two small photographs of the
representative, and if some of the purchasers are not present
during the transaction, identity card with photograph, two small
photographs and power of attorney of the representatives that
represent the purchasers, are required.
IV.B. In terms of Legal Persons
a. Companies established according to the
Foreign Direct Investment Law numbered 4875 will show competence
document given by Turkish Trade Registry, a document given to
the person assigned basing on this, and signatures certificate.
b. Foreign trading companies established in
foreign countries according to their laws are required, in
compliance with the legislation of their country, to show a
document having the effect of competence document given by
relevant authorities.
With regard to charges and taxes required to
be paid in the course of transactions, there is no difference
between persons of foreign nationality and citizens of the
Republic of Turkey. However, when asking the competent military
post to determine whether the real estate demanded by real or
legal person of foreign nationality is located out of Military
Forbidden Zones and Security Zones or not, if any control in the
field is needed to mark on map of 1/25000 scale where the real
estate is, a kind of service value will be paid according to
transaction named “showing the parcel in its place.”
|
|
