The Community of Heirs — Converting Joint Ownership into Co-ownership in Shares
The concepts of the community of heirs and joint ownership, the action to convert into co-ownership in shares under TMK Art. 644, the competent court, dissolution of co-ownership and the rights of heirs: a comprehensive legal guide.
What Is the Community of Heirs?
Upon the opening of the succession the heirs hold the estate in joint ownership. Each heir has an inheritance share in the estate as a whole; until division, however, they have no independent, disposable share in individual estate assets. The heirs are personally and jointly and severally liable for the estate's debts. Even after division, under TMK Art. 681 joint and several liability continues for five years — from the date of division for debts agreed or matured on division, and from maturity for those maturing later.
The Concept of Joint Ownership
In joint ownership no determined shares appear in individual assets, and the right in the estate belongs to the community. Under TMK Art. 640/2 the heirs dispose jointly of the rights belonging to the estate. Any heir may seek protective measures; the civil court of peace may appoint a representative. The scheme of “a majority for ordinary administration” applicable to co-ownership in shares does not apply directly to the community of heirs.
The Action to Convert into Co-ownership in Shares: TMK Art. 644
An heir may ask the civil court of peace to convert the joint ownership of all or some of the specified assets in the estate into co-ownership in shares in proportion to the inheritance shares. The judge invites the other heirs to state their objections within a period to be fixed. If no objection justifying the continuation of joint ownership is raised, or if none of the heirs brings a division action within the period fixed, the conversion is ordered.
Conditions and Procedure of the Conversion Action
The request is made by an heir to the civil court of peace; all the heirs are heard. As to venue, the special succession venue in HMK Art. 11, the fact that the asset is an immovable and the in rem effect of the claim are assessed together; the place where the immovable is situated is not the sole automatic rule. Conversion does not achieve a physical division; each heir becomes a co-owner in shares in the land register.
Action for Dissolution of Co-ownership (İzale-i Şüyu)
In co-ownership in shares, dissolution is effected by division in kind where that is possible and, if not, by sale through the current electronic sale system. The sale is conducted by the sales officer or official appointed by the court; a description confined to the classic physical auction at the enforcement office is out of date. Since 1 September 2023, application to a mediator has been a condition of action before actions for the division of movables and immovables and for the dissolution of co-ownership.
Administration of the Community of Heirs
The heirs as a rule dispose jointly of the estate's rights. Any heir may take protective steps where delay would be prejudicial; where important administration is required, the appointment of a representative may be sought from the civil court of peace. One heir cannot lease or sell an entire estate asset. During the period of joint ownership, the transfer of an inheritance share is possible within the framework of the written or official form required by TMK Art. 677 and the limited right of the third party.
Advantages of Converting Joint Ownership into Co-ownership in Shares
Converting joint ownership into co-ownership in shares gives heirs significant advantages. Knowing these advantages helps heirs to exercise their rights more effectively.
The ability to dispose independently: on conversion to co-ownership in shares each heir may dispose independently of their own share. They may sell it, transfer it to another, grant a mortgage over it, or lease their inheritance share to third parties. This flexibility does not exist in joint ownership.
Land registry entry: in co-ownership in shares each heir's share is shown separately in the land register. This makes it easier for heirs to document their ownership rights officially and to assert them against third parties.
Access to credit and finance: heirs may offer their shares in co-ownership as security when obtaining bank credit. In joint ownership, since there is no determined share, banks generally do not accept it as security.
Fewer disputes: the requirement in joint ownership that all the heirs act together can give rise to constant disputes. Conversion to co-ownership in shares reduces these disputes by allowing heirs to take decisions on their own shares independently of one another.
The Division Action
Each heir may as a rule seek division at any time; postponement is possible where the community continues by contract or by operation of law and where immediate division would significantly reduce the value of the asset (TMK Art. 642). The court with subject-matter jurisdiction is the civil court of peace, and venue lies with the deceased's last place of residence. The pre-action mediation condition is observed.
Practice in the Light of Court of Cassation Decisions
In practice, whether all the heirs were duly summoned for the conversion, any reason justifying the continuation of joint ownership, a timely division action and the land registry records are examined. Where a share is sold to a third party after conversion to co-ownership in shares, an action to enforce the statutory pre-emption right must be brought within three months of the notary's notification and in any event within two years of the sale (TMK Art. 733).
Points to Bear in Mind Regarding Property Held in Joint Ownership
There are certain important points to which heirs must pay attention in administering and disposing of estate property held in joint ownership.
Preservation of estate property: all the heirs bear responsibility for preserving estate property. If an immovable is damaged, loses value or is destroyed, all the heirs must share the loss. Insuring estate property and maintaining it are therefore important. Sharing income and expenditure: during the period of joint ownership, income derived from estate property (such as rent or interest) belongs to the community of heirs; inheritance shares are taken into account on division. Who bears preservation, administration and necessary expenditure is determined by the nature of the expenditure and by the rules governing the community of heirs. A voluntary sale of an estate immovable as a rule requires the heirs to act together or to act through an authorised representative. If agreement cannot be reached, the conditions for conversion to co-ownership in shares, or for division or dissolution of co-ownership, may be assessed.
Use of powers of attorney: where it is difficult for all the heirs to come together, some heirs may grant a power of attorney to the other heirs or to an attorney to act on their behalf. A power of attorney is a method frequently used to facilitate the participation of heirs living abroad.
Finally, matters of the community of heirs and joint ownership can give rise to serious disputes in families with many heirs. Obtaining support from a succession law attorney throughout the process is of considerable importance in protecting the heirs' rights and avoiding unnecessary disputes.
This content has been prepared for general information purposes and does not constitute legal advice. You are advised to consult an attorney in relation to specific disputes.
Frequently Asked Questions
Does an heir have a share in individual assets?
Until division there is no independent share; there is an inheritance share in the estate as a whole.
How does conversion under TMK Art. 644 work?
The judge invites the other heirs to object; if there is no justified objection or timely division action, conversion is ordered.
Is mediation required before dissolution of co-ownership?
Yes, it has been a condition of action since 1 September 2023.
What is the pre-emption period if a share is sold?
Three months from the notary's notification, and in any event two years from the sale.
This article was prepared by Av. Mustafa MALGIR.
