With the “Law on Soil Conservation and Land Use” numbered 5403, a pre-emption right specific to flanking owners in agricultural lands has been recognized. However, with the “Law on Making Some Regulations in Food, Agriculture and Forestry” numbered 7255 published in the Official Gazette dated 04.11.2020 and numbered 31294, numerous changes were made in the aforementioned “Law on Soil Conservation and Land Use”. One of these changes is the regulation on the pre-emption right granted to the neighboring parcel.
By the legislator; This arrangement, which was made in order to prevent agricultural lands from losing their functionality by dividing, creates a great deal of trouble for agricultural landowners in practice. This practice causes a decrease in the number of buyers who want to make investments in agricultural land, and potential buyers avoid purchasing agricultural land because they do not want to face judgment due to the pre-emption right. Therefore, it does not seem possible to say that the application has achieved its purpose, even though it was made with the aim of ensuring the integrity of the agricultural lands.
First of all, if we need to explain the pre-emption right; it defines in Article 732 of the Turkish Civil Code, “In the case of a shareholder who sells his / her share on the real estate to a third party, other stakeholders can use their pre-emption right.”
Although the pre-emption right is mainly regulated in the TCC, it is also recognized in some laws. One of these laws is the “Law on Soil Conservation and Land Use” numbered 5403. Article 8 / I of the Law gives pre-emption right to flanking owners in agricultural lands.
“In case of selling agricultural lands, flanking agricultural landowners also have the right to pre-emption. If agricultural land is sold to one of the neighboring owners, other neighboring owners cannot use their pre-emption rights.” this provision was abolished with the new regulation.
With reference to Law No. 5403, according to Article 733 of the TCC, the pre-emption right in question could be used by filing a lawsuit against the buyer who bought the agricultural land. Therefore, the transfer that gave birth to the pre-emption right appeared as a sales transaction. If the sale transaction is notified to the pre-emption right holders by the buyer of the real estate through a notary, a lawsuit had to be filed within 3 months from the notification; If the sale was not declared through a public notary, a lawsuit had to be filed within 2 years from the date of sale. Those terms are final terms and can not be filed a lawsuit after the deadline.
In addition, it is not important whether the agricultural land is actually used or not, the buyer who wants to use the pre-emption right must be the owner of the entire adjacent property. Also, in terms of the land to be sold, the whole real estate should be subject to sale, not the transfer of shares.
If the agricultural land had more than one neighbor, the pre-emption right of the other neighbors was eliminated when one of the neighboring parcels used the pre-emption right. In cases where more than one flanking owner wanted to use their pre-emption right, the Law gave the judge a discretionary right.
Regarding this situation, the decision of the 14th Civil Chamber of the Supreme Court, numbered 2019/339, dated 15.01.2019 reveals the abuses:
“The essence of the property right should not be harmed in the interpretation and application of the provisions of the law on the pre-emption right that restricts the property right on the immovable property. While doing this, it is necessary to investigate aimed at using the pre-emption right will be realized or not. Accepting that the pre-emption right of the neighboring agricultural landowner can be used for each agricultural land sold, regardless of its size, prevents an agricultural land with the minimum agricultural land size from being transferred by the owner to the desired person at its real value. Such an application implies an extension of the restriction provision on the transfer of property in a way that goes against the essence of the property right.”
As a result, the pre-emption right granted to neighboring parcels with the latest regulation has been abolished.