The action for dissolution of joint ownership

Four siblings have used a plot inherited from their father together for years. One of them wants to turn a share into money; the others refuse. In Turkish law the answer to this deadlock is the action for dissolution of joint ownership, still known in everyday speech by its old name, izale-i şuyu.

Who may bring it, and where

Each co-owner may as a rule ask for division at any time. The consent of the others is not required, and an action brought by a single co-owner brings the whole of the joint ownership to an end.

The case is heard by the civil court of peace (sulh hukuk mahkemesi) and jurisdiction lies with the court for the place where the property is situated. All co-owners must be parties to the case; if one is left out, the file cannot proceed. Where a co-owner has died, every one of the heirs must be joined. In practice this is what lengthens these cases most.

Division in kind is tried first

The law sets an order of preference. The court first examines whether the property can be physically divided. Division in kind requires that the nature of the property allows it and that dividing it will not cause a significant loss of value.

Where the shares cannot be made exactly equal, a sum of money may be added to the smaller share to balance the division. If planning legislation does not permit division, or if the resulting parts would be unusable, this route closes.

Where there is a building on the land suitable for condominium ownership (kat mülkiyeti), which gives each owner title to a separate unit, a co-owner may ask for that to be established instead of dissolution. It is the only route that ends the joint ownership without the property leaving the family, and in many files it is passed over without enough thought.

Division by way of sale

If division in kind is not possible, the court orders division by sale. The sale is carried out by public auction, conducted by a sale officer appointed by the court or through the enforcement office. After any mortgage and similar charges have been met, the proceeds are distributed among the co-owners in proportion to their shares.

The auction is open to everyone as a rule, so an outside buyer may acquire the property. If all the co-owners agree unanimously, however, it may be decided that the sale will take place only between them. For co-owners who do not want the property to leave the family, that is a significant option.

It is well known in practice that the price reached at auction can fall below the open market value. Agreement among the co-owners while the case is pending removes that risk, and the file can be closed by withdrawal or settlement.

When division cannot be requested

• The co-owners may have agreed in a contract not to seek division for a period; the length of that period is limited by statute.
• Division cannot be requested at an inappropriate time. A case brought during an exceptional period that would depress the value of the property may meet this objection.
• Special provisions may apply in situations such as a family residence or the integrity of a business.

Mediation before filing, and costs

Disputes concerning the division of immovable property and the dissolution of joint ownership are among the matters in which an application to a mediator is required before an action is brought. If this step is skipped, the case is dismissed on procedural grounds. Agreement between the co-owners at the mediation table also removes, from the outset, the risk over the price that an auction would produce.

Litigation costs are borne by the co-owners in proportion to their shares, regardless of who brought the case. This is not a case that is won or lost; everyone is treated as benefiting equally from the end of the joint ownership.

This article is for general information only and does not constitute legal advice on any specific matter.