What is a community of heirs, and how do partition and dissolution of the co-ownership work?

Where there are several heirs, a certificate of inheritance shows who the heirs are; however, it does not by itself settle in whose name, in what proportion and how the assets will be used. What the certificate shows is explained in a separate note, and the ways in which it is obtained are explained in another note. This note deals in general terms with the stage after the certificate. Renunciation of an inheritance is covered in a separate note: Time limit for renouncing an inheritance and how it is done.

In brief: Where there is more than one heir, a community of heirs arises among them until partition, and the heirs hold the estate jointly (in joint ownership without shares). The heirs may partition by agreement; the agreement must be made in writing. If no agreement is reached, the court of peace is approached for partition or dissolution of the co-ownership. In disputes concerning the dissolution of co-ownership, an application to a mediator before filing a lawsuit is a prerequisite for the lawsuit. Which route is appropriate varies according to the type of asset and the nature of the situation among the heirs.

What is a community of heirs?

Under Article 640 of the Turkish Civil Code, where there is more than one heir, upon the devolution of the inheritance a community covering all the rights and debts in the estate arises among the heirs until partition. The heirs hold the estate jointly.

In joint ownership, the co-owners have no defined shares; each one’s right extends to the whole of the assets in the community (Art. 701). Unless the law or a contract provides otherwise, the co-owners must decide unanimously on acts of management and disposition (Art. 702). For this reason, one of the heirs cannot, on his or her own, make a disposition such as a sale of an immovable that appears in the land register as jointly owned.

The same article also provides that, at the request of one of the heirs, the court of peace may appoint a representative for the community of heirs until partition, and that each heir may request protection of the rights in the estate.

Transfer in the land register and ownership status

Under Article 705 of the Turkish Civil Code, ownership acquired by inheritance is acquired before registration; however, the owner’s ability to make dispositions depends on the ownership having been registered in the land register. In other words, the heirs acquire ownership upon death, but transactions such as transfer cannot be carried out until the land register entry is updated.

Which type of ownership (joint ownership or co-ownership by shares) appears in the land register entry varies according to the transaction in the specific file. For this reason, the entry itself should be checked with the land registry office or through e-Devlet; this note does not give a general rule on the type of entry.

How do heirs partition by agreement?

• Free arrangement: Unless there is a provision to the contrary, the heirs decide freely how the partition is to be made (Art. 646).
• Partition agreement: A partition agreement made among the heirs binds them. The validity of the agreement depends on its being made in writing (Art. 676).
• Conversion into co-ownership by shares: By agreement, the heirs may also accept that joint ownership over all or part of the estate assets be converted into co-ownership by shares in proportion to their inheritance shares (Art. 676).
• Allocation to a single heir: Solutions such as allocating one of the immovables to an heir and equalising the difference in money are possible by agreement of the heirs; if there is no agreement, this option falls within the judge’s assessment in a judicial partition (Art. 642).

The official formalities required to transfer an asset in the land register may vary depending on the nature of the asset and the content of the agreement; these details should be learned from the land registry office.

What route is followed if no agreement is reached?

Article 642 of the Turkish Civil Code provides that, unless there is an obligation to continue the community, each heir may request partition of the inheritance at any time. An heir may ask the court of peace to decide that specific assets in the estate be partitioned in kind or, where that is not possible, by sale. If immediate partition would significantly reduce the value of the asset or the estate, the judge of the court of peace may decide to postpone the partition.

Conversion of joint ownership into co-ownership by shares is regulated separately in Art. 644: If an heir requests conversion, the judge of the court of peace issues a call to the other heirs. If no objection that would justify the continuation of joint ownership is raised, or if one of the heirs does not file a partition lawsuit within the period set, a decision for conversion is made.

The partition of joint ownership is carried out, unless there is a provision to the contrary, according to the provisions on co-ownership by shares (Art. 703). The manner of partition in co-ownership by shares is regulated in Art. 698–699:

• Each of the co-owners may request partition of the asset unless there is an obligation to continue the co-ownership (Art. 698).
• Partition takes place by dividing the asset in kind or by selling it through negotiation or auction and dividing the proceeds (Art. 699).
• If no agreement is reached on the manner, the judge, at the request of one of the co-owners, decides that the asset be divided and partitioned in kind; if division is not considered appropriate, or if the asset cannot be divided without a significant loss in value, sale by public auction is ordered (Art. 699).
• A sale by auction among the co-owners only depends on the consent of all the co-owners (Art. 699).

Distinguishing the type of lawsuit: which court, which rule on jurisdiction?

Two headings that are close to each other but not identical appear in the legislation: partition of the estate (the community of heirs), and dissolution of the co-ownership in an asset held in co-ownership by shares or in joint ownership.

• Subject-matter jurisdiction: Under Article 4 of the Code of Civil Procedure, the civil courts of peace hear lawsuits concerning the partition of movable and immovable assets or rights and the dissolution of co-ownership, irrespective of the value or amount in dispute (Art. 4/1-b).
• Territorial jurisdiction in lawsuits arising from inheritance: For the partition of the estate, the invalidity of a partition agreement and similar inheritance lawsuits, the court of the deceased’s last place of residence has exclusive jurisdiction (Art. 11/1-a).
• Territorial jurisdiction in lawsuits concerning immovables: In lawsuits concerning a real right over an immovable, the court of the place where the immovable is located has exclusive jurisdiction; if the lawsuits concern more than one immovable, they may also be filed, in respect of the others, at the place where one of them is located (Art. 12).

Whether a lawsuit is to be assessed under Art. 11 or Art. 12 may depend on whether the lawsuit covers the estate as a whole or the individual assets, and on the claims in the petition. This note does not make a definitive distinction on this point.

Is mediation required before filing a lawsuit?

Article 18/B, paragraph 1, subparagraph (b) of the Law on Mediation in Civil Disputes provides that, in disputes concerning the partition of movables and immovables and the dissolution of co-ownership, an application to a mediator before filing a lawsuit is a prerequisite for the lawsuit. The Ministry of Justice Mediation Department states that this requirement has applied since 1 September 2023.

• If no agreement is reached at the end of the mediation, the original of the final report, or a copy certified by the mediator, is attached to the petition. Under the law, if it is found that the lawsuit was filed without applying to a mediator, the lawsuit is dismissed on procedural grounds for the absence of the prerequisite (Art. 18/A).
• If the parties reach an agreement, obtaining the annotation concerning the enforceability of the agreement document is mandatory; for documents concerning an immovable, the annotation is obtained from the civil court of peace of the place where the immovable is located (Art. 18/B).

Whether a dispute falls within this scope depends on the specific claim; this note does not assess every possibility one by one.

This information note is for general information purposes and does not contain a legal opinion specific to any person.