Action for Dissolution of Joint Ownership — Procedure and Division

A guide to the action for dissolution of joint ownership, division in kind, dissolution by sale, the special position of agricultural land and the course of proceedings.

What Is an Action for Dissolution of Joint Ownership?

Where property held in co-ownership by shares or in joint ownership cannot be used and divided together, dissolution of the joint ownership may be sought. The action produces a single result for all the owners; every co-owner or joint owner must be joined as a party.

Since 1 September 2023, in disputes concerning the division of movable and immovable property and the dissolution of joint ownership, applying to a mediator under art. 18/B of Law no. 6325 is a condition of bringing proceedings. A settlement document concerning immovable property is signed by the parties, the mediator and their lawyers; an annotation of enforceability is obtained from the magistrates' court for civil matters.

The competent court is the magistrates' court for civil matters. For immovable property, the court of the place where the property is situated has exclusive venue. If one of the owners has died, a certificate of inheritance is obtained and all the heirs are joined to the proceedings.

An action for dissolution of joint ownership is brought in order to bring to an end the joint ownership of movable or immovable property held in co-ownership by shares or in joint ownership. Popularly known as “izale-i şüyu”, it is conducted within the framework of articles 698-699 of Turkish Civil Code no. 4721 and the provisions of Code of Civil Procedure no. 6100. It is the legal route most frequently used to resolve disputes over division among heirs, particularly in respect of immovable property passing by inheritance.

Who May Bring an Action for Dissolution of Joint Ownership?

Under Civil Code art. 698, in co-ownership by shares each co-owner, and in joint ownership each joint owner, may bring an action for dissolution against the other co-owners or joint owners. The size of the share is immaterial; even the co-owner with the smallest share has the right to bring the action.

All the co-owners or joint owners must be joined as parties to an action for dissolution. This is one of the actions requiring compulsory joinder. All co-owners other than the claimant must be named as defendants. If any co-owner is not joined, the court requires the missing party to be added; otherwise the action is dismissed on procedural grounds.

In co-ownership by shares, if a share is transferred, the new owner acquires the capacity of a party. In joint ownership, by contrast, an owner does not hold an independent share over which they may dispose alone in respect of particular property. The transfer of an inheritance share to a third party does not confer on the transferee the status of heir or of joint owner over the estate property; under Civil Code art. 677 it gives a right to claim the share allocated to the heir at the end of the division. The capacity of a party must be determined by reference to the type of transfer and to the ownership and inheritance records as at the date of the action.

How Is Joint Ownership Dissolved by Division in Kind?

Division in kind means bringing joint ownership to an end by physically dividing the property and giving each co-owner an independent part. Under Civil Code art. 699 the court may order the property to be divided in kind; but for this the property must be capable of division and no significant loss of value must result from the division.

In order to assess a co-owner's request for division in kind, the court carries out a site inspection and obtains an expert report. The expert determines whether the property is suitable for division, whether division would cause a loss of value, and the values of the parts to be given to the co-owners. For immovable property, compliance with planning legislation is also examined; property that cannot be divided under the development plan cannot be divided in kind.

Equalisation of shares is also an important matter in division in kind. The parts resulting from the division may not be of equal value. In that case the co-owner receiving the part of lower value is awarded an equalisation payment from the other co-owners. Where all the co-owners accept division in kind, the court's task is easier; but if even one co-owner objects, the court must examine the conditions for division in kind in detail.

Under Civil Code art. 699, where there is no agreement on the manner of division, the judge first assesses whether dividing the property in kind is appropriate in the circumstances; a difference in value may be equalised by adding money. If a request for division is not appropriate or would cause a significant loss of value, sale by public auction is ordered.

How Does Dissolution by Sale Work?

Dissolution by sale means that, where the property cannot be divided in kind or division would cause a significant loss of value, the property is sold by public auction and the proceeds are distributed among the co-owners in proportion to their shares. The sale is carried out through the sales office once the court's decision has become final.

The sale process is conducted under the provisions of the Enforcement and Bankruptcy Law. Once the court has ordered a sale, the sales office has the property valued, prepares the notice of sale and holds a public auction. After the costs of the proceedings and of the sale have been deducted, the proceeds are distributed to the co-owners in proportion to their shares.

In dissolution by sale the co-owners may take part in the electronic auction. In files where all the owners acquired the property by inheritance and no third party holds a right of ownership, for sales advertised after 31 July 2026 the first auction is held, on one occasion only, among the owner-heirs alone. In that special first auction the bid must exceed the higher of one hundred per cent of the appraised value and the total of preferential claims, and must in addition cover the costs of realisation and distribution. In the second auction, and in sales that do not meet these special conditions, the general fifty per cent threshold applies.

Where the conditions for the special heirs' auction are not present, a sale confined to the co-owners depends on the consent of all of them. By contrast, where the above conditions of acquisition by inheritance and the absence of any third party are met, the first-auction rule introduced by Law no. 7589 does not depend on the separate agreement of all the co-owners.

How Does the Co-owners' Pre-emption Right Affect Dissolution?

If a co-owner sells their share in immovable property to a third party, the other co-owners may exercise the statutory pre-emption right under Civil Code art. 732. The action is brought against the buyer; it is incorrect to say that the seller is a compulsory defendant. The right must be exercised within three months of the date on which the sale was notified through a notary, and in any event within two years of the sale.

Pre-emption cannot be exercised in sales by compulsory auction. Under the general regime, confining a sale to the joint owners depends on the consent of all of them; a request by one owner is not sufficient. However, where all the owners acquired the property by inheritance and no third party holds a right of ownership, under art. 114 of the Enforcement and Bankruptcy Law the first auction is by operation of law held among the owner-heirs alone. The parties, purpose and time limits of a pre-emption action differ from those of an action for dissolution of joint ownership.

What Special Rules Apply to the Dissolution of Joint Ownership in Agricultural Land?

For agricultural land, the provisions of Law no. 5403 on minimum agricultural land size and land yielding sufficient income, and its special rules on the transfer of ownership by inheritance, apply. Divisibility is determined by the class and size of the land, its economic integrity and the Ministry's records; there is no fixed acreage limit.

If division in kind would be contrary to planning or agricultural legislation or would cause a significant loss of value, a sale comes into play. For inherited agricultural land, the statutory options and time limits such as a qualified heir, a family property partnership, a limited company or a sale to a third party are assessed according to the particular file. Not every field is indivisible, nor is every field necessarily left to a single heir.

The transfer of ownership of agricultural land and the assessment of a qualified heir are made under the current provisions of Law no. 5403. Agricultural income, professional knowledge, the relationship of livelihood and the other statutory criteria are examined together. The value of the other heirs' shares may be determined by expert valuation; the conditions of payment and the time limits must be set out in the court's decision in accordance with the statute.

The fact that property falls within a development plan does not mean that the provisions of Law no. 5403 automatically cease to apply in their entirety. The character of the title, the actual use, the plan, any permission for non-agricultural use, and the provisions of special statutes must be examined together.

How Are Court Fees and Costs Calculated?

The costs of the proceedings and of the sale arise from the application fee, the site inspection, the expert, service of documents, the sale advance, and land registry and tax items. Fees and tariffs change every year; the official rate in force at the date of the transaction must be taken as the basis. The court sets out the costs of the proceedings and the attorney's fee in its judgment according to the parties' shares and their position in the action.

If a sale is ordered, the valuation and the electronic auction are conducted by the sales office. The effect of mortgages, attachments, usufruct and other encumbrances on the sale and the proceeds is determined by the nature of the right. The net proceeds are distributed according to the registered shares in co-ownership by shares, and according to the inheritance shares and the special rules in joint ownership.

What Are the Procedural Rules?

An action for dissolution of joint ownership is heard in the magistrates' court for civil matters under Code of Civil Procedure no. 6100. Under art. 4/1-b, actions for the dissolution of joint ownership of movable and immovable property fall within the jurisdiction of that court. For immovable property, the competent court is that of the place where the property is situated (exclusive venue).

The statement of claim must clearly identify the property for which dissolution is sought and all the co-owners. The block and parcel details of immovable property are verified against the land registry. Under art. 12/3 of the Code of Civil Procedure, an action concerning several immovable properties may be brought together at the place where one of them is situated; the court assesses whether separation is required by reason of connection, joinder of parties and procedural economy.

An action for dissolution of joint ownership is a bilateral (two-way) action. Both the claimant and the defendant may seek dissolution. The claimant may seek division in kind and the defendant a sale. The court assesses both requests and decides according to the circumstances. A defendant's refusal to accept the claim does not prevent dissolution, because every co-owner has the right to seek division.

During the proceedings the parties may settle and divide the property by agreement. A settlement protocol is approved by the court and turned into a judgment. This route is to be preferred because it shortens the proceedings and produces a solution consistent with the parties' wishes.

How Are Structures on the Land Treated?

A structure does not create ownership independent of the ownership of the land; but in distributing the proceeds of sale, the proportion of value attributable to the co-owner who erected it may be taken into account. If all the co-owners agree as to whom it belongs, the calculation may proceed on that basis. If there is a dispute, the court hearing the dissolution action gives the party concerned a strict time limit to bring an action for a declaration as to ownership of the structure, and may treat the outcome as a preliminary issue.

In a declaratory action, jurisdiction is determined by the parties and the legal character of the dispute, but is generally the civil court of first instance. Whether a separate action is required depends on whether ownership is disputed; it should not be said that “every structure always requires a separate action”.

In the sale, the value of the land without the structure and the value the structure adds to the property are determined by an expert and expressed as a proportion of the total value. The part of the proceeds attributable to the structure goes to its owner, and the part attributable to the land is distributed to the co-owners in proportion to their registered shares. The result cannot be fixed as always deducting the full value of the structure first and dividing the remainder.

How Long Does an Action for Dissolution of Joint Ownership Take?

The statute guarantees no outcome within six months, two years or three to six months for an action for dissolution or for the sale process. Service of documents, the number of parties, questions of inheritance, the investigation into division in kind, information from planning and agricultural authorities, disputes over structures, valuation, the avenues of appeal and the electronic sale process all affect the total duration.

Whether an appeal and, where applicable, cassation lie against the first-instance decision is determined by the monetary threshold of finality at the date of the decision and by the nature of the decision. Because these thresholds are updated every year, the monetary threshold in force at the date of the decision should be checked before pursuing an appeal.

Official sources: Turkish Civil Code no. 4721, Enforcement and Bankruptcy Law no. 2004, Code of Civil Procedure no. 6100, Law no. 6325 on Mediation in Civil Disputes, Law no. 5403 on Soil Conservation and Land Use, Law no. 7589