Annotation of a Lease Agreement with the Land Registry
How a lease agreement can be annotated?
Article 312 of the Turkish Code of Obligations (“TCO”) states that “In the real property rents, it is possible to agree on annotation of the right of tenancy to the land registry.”, therefore; it is indicated that lease agreements can be annotated with the land registry. Annotation of the lease agreement is processing of the lease agreement to the annotation column of the land register. Parties may decide on the annotation of the lease agreement later or the annotation may be determined as a clause in the lease agreement or an annotation agreement concluded as a separate agreement. Although there is not any requirement of form for the annotation agreement, the lease agreement and the annotation agreement must be submitted in written for the annotation.[1]
When the lease agreement concluded as form of ordinary written and there is no signature authentication of notary, parties or their representatives need to apply to the land registry together. If there is a clause in the lease agreement regarding the annotation of the agreement, the lease agreement must be concluded in a notary or the signatures on the agreement must be notarized in order for the tenant to apply for annotation of the lease agreement without the application of the landlord.[2] In this context, it will be adequate for a single party to apply for annotation to the land registry with the scope of an agreement which has an annotation clause regarding in case the lease agreement is concluded in a notary or the signatures on the agreement are notarized. Moreover, stamp tax, title deed fee and revolving fund must be paid.
What are required documents regarding annotation of the lease agreement with the land registry?
| Required Documents[3] | Explanations |
| 1. Identity Card | Identity card of the landlord or authorized representative |
| 2. Representation Document, if there is a Representation in the Transaction | Power of attorney (“PoA”), certificate of authorization etc. |
| 3. Photography of Real Persons | |
| 4. Lease Agreement | Concluded and signatured in notary or concluded and signatured by parties (Land Registry Regulation Art. 47) |
What is required type of power of attorney for annotation of the lease agreement with the land registry?
Although the lease agreement can be concluded with a general PoA, annotation of the lease agreement with the land registry is not possible with general PoA. When annotation of the lease agreement with the land registry is performed by the proxy, according to Article 89 of the Notary Law, “Agreements and power of attorneys which require transaction in notary, testaments, sale with retention of title clause, real estate presale, foundation voucher, marriage contract, adoption and recognition, partition of inheritance agreement and other transactions stipulated in other laws are regulated in accordance with the clauses of this chapter.” Hence, statutory form PoA is required.
What is legal effect of annotation of the lease agreement with the land registry?
Legal effects of annotation of the lease agreement with the land registry should be evaluated within the scope of the Article 1009 of the Turkish Civil Code. In the first paragraph of mentioned article, it is stated that “Rights arising from construction agreement in return for land share, real estate presale agreement, lease, purchase, pre-emption, repurchase agreements and other rights clearly stipulated in the laws can be annotated.” Therefore, it is indicated that all individual rights cannot be annotated since annotation is possible merely when the law permits.[4] In the continuation of the mentioned article, it is regulated that these rights will be asserted against the owners of the rights gained later on that property. Annotation of the lease agreement with the land registry prevents the application of Article 351 of the TCO, which is an additional possibility for the new landlord and has more negative termination conditions for the tenant.[5]
The legal effect of annotation of the lease agreement with the land registry is determined by the law and it is not possible for the parties to change this effect.[6] Annotation of the lease agreement shall not change the conditions of the lease agreement signed between the landlord and tenant. In cases where the parties do not reach a consensus, making an evaluation on the grounds of the annotation of lease agreement shall not be compatible with the freedom of will.
REFERENCES
Acar, Faruk. Annotation of Lease Agreement, 3rd Edition, Istanbul: Beta, 2016.
Oğuzman, Kemal/ Seliçi, Özer/Oktay-Özdemir, Saibe. Property Law, Istanbul, 2013.
Paksoy, Meliha Sermin. “Terms and Results of Annotation of Lease Agreement”, İnÜHFD, 2019.
[1] Land Registry Regulation Article 47 Paragraph ç.
[2] 3th Civil Chamber of the High Court of Appeal Numbered E. 2017/5478 K. 2019/81 Dated 15.01.2019.
[3] General Directorate of Land Registry and Cadastre, Date of Access 8.9.2021, https://www.tkgm.gov.tr/sites/default/files/2020-12/kira_serhi.pdf.
[4] Kemal Oğuzman, Özer Selici, Saibe Oktay-Özdemir, Property Law, Istanbul, 2013, p. 216.
[5] Meliha Sermin Paksoy, “Terms and Results of the Commentary on the Lease Agreement”, İnÜHFD, 2019, p. 142.
[6] Faruk Acar, Annotation of Lease Agreement, 3rd Edition, Istanbul: Beta, 2016, p. 318.
