Recent Development
The decision of the Constitutional Court of the Republic of Türkiye (“Constitutional Court”) dated 16 July 2026, file No. 2026/23, decision No. 2026/162 (“Decision”), was published in the Official Gazette dated 6 November 2026 and numbered 33422. With the Decision, the Constitutional Court annulled the second paragraph of Article 734 of the Turkish Civil Code No. 4721 (“Civil Code”), which requires market value to be used as the basis for exercising the right of pre-emption, and the second paragraph of Provisional Article 1, which extends the application of this rule to previously filed lawsuits.
Legal Framework Prior to the Decision
Under the Civil Code, where a co-owner sells all or part of their share in an immovable property to a third party, the other co-owners may exercise their right of pre-emption. This right is exercised by filing a lawsuit against the purchaser. Prior to the amendment introduced by Law No. 7571 dated 24 December 2025, the holder of the right of pre-emption was required to deposit the sale price and the land registry expenses payable by the purchaser.
Law No. 7571 amended the second paragraph of Article 734 of the Civil Code to replace the sale price with the market value to be determined by the court without delay. Under this provision, the holder of the right of pre-emption must deposit the market value and the land registry expenses payable by the purchaser in cash, within the strict time limit set by the court, at the designated place to generate returns. If this obligation is not fulfilled, the court cannot order registration of the share in the right holder’s name. The deposited amount is paid to the relevant party, together with the accrued returns, once the judgment becomes final. The second paragraph of Provisional Article 1, added to the Civil Code, provides that these amendments also apply to lawsuits filed before the amendments entered into force.
What Does the Decision Say
The Constitutional Court stated that the right of pre-emption allows the right holder to take the place of the third-party purchaser while preserving the terms of the sale agreement. It considered that using a market value determined by the court instead of the sale price freely agreed by the parties alters the terms of the sale and overrides the parties’ intentions. The Constitutional Court also referred to its decision dated 8 November 2023, file No. 2023/77, decision No. 2023/190, in which it had found the use of the sale price as the basis to be constitutional.
According to the Constitutional Court, paying the purchaser an amount different from the sale price they paid may result in an unjustified gain or a loss for the purchaser. The holder of the right of pre-emption also faces legal uncertainty as to the amount payable. The Constitutional Court therefore held that the provision failed to strike a fair balance between the parties’ interests and was incompatible with the state’s positive obligations arising from the right to property.
On these grounds, the Constitutional Court annulled, by a majority vote, the phrase “market value” in the first sentence of the second paragraph of Article 734 of the Civil Code, finding it contrary to Articles 5 and 35 of the Constitution. The remaining part of the second paragraph and the second paragraph of Provisional Article 1, which could no longer be applied as a result of this annulment, were unanimously annulled pursuant to Article 43(4) of Law No. 6216.
Conclusion
The Decision annuls the market value rule for exercising the right of pre-emption, together with the provisions on depositing the amount, generating returns and applying the amendments to previously filed lawsuits. Considering that the legal vacuum resulting from the annulment would be detrimental to the public interest, the Constitutional Court deferred the entry into force of the annulment provisions for nine months from publication in the Official Gazette, until 6 August 2027. The requests for a stay of execution were dismissed.
Accordingly, the market value rule and the provision extending its application to previously filed lawsuits will continue to apply until 6 August 2027. Unless new legislation is enacted by that date, the second paragraph of Article 734 will cease to have effect in its entirety; the previous sale price provision will not automatically be reinstated. The annulment does not abolish the right of pre-emption itself. It is therefore important to monitor any legislation enacted during this period concerning the determination and deposit of the amount payable in pre-emption lawsuits.
