Partition (izale-i şuyu / ortaklığın giderilmesi) is a lawsuit where, if real estate or movable property held in joint or undivided ownership by multiple persons cannot be divided in kind, ownership is terminated by conversion to cash through sale. Regulated under Articles 698-699 of the Turkish Civil Code, this institution frequently arises particularly in inheritance distribution and post-divorce property regime liquidation processes.
Where Is It Filed?
Partition lawsuits are filed at the Civil Court of Peace and the court of the location of the property has jurisdiction. The lawsuit can be filed at any time by any of the co-owners; this right is inalienable by law. Even if the co-owners have decided on the continuation of co-ownership for 10 years, the lawsuit can be filed before this period if there is a "just cause".
Partition in Kind or Sale?
The court first investigates the possibility of partition in kind. If the property can be physically divided, distributed without creating parcels contrary to zoning regulations, and a partition acceptable to the co-owners is possible, partition in kind is made. According to Supreme Court 14th Civil Chamber precedents, division that will cause excessive loss in the value of the property is not appropriate.
If partition in kind is not possible, termination of co-ownership by sale is decided. The sale is made through the enforcement office by public auction and the price obtained is distributed to the co-owners in proportion to their shares.
Trial Costs and Attorney Fees
The costs of the partition lawsuit (fees, expert costs, sale announcement costs) are shared among the co-owners in proportion to their shares. Attorney fees are also determined in the same way. Whoever files the lawsuit, there is no winner-loser distinction; because all co-owners benefit from the lawsuit.
Third Party Intervention
If there are rights such as a rental contract, usufruct right or mortgage related to the property, the holders of these rights must also participate in the lawsuit. If a sale decision is made without the tenants participating in the lawsuit, the tenancy may continue even after the sale (TCC Art. 261).
Our Services as Elazığ Law Office
In partition lawsuits, we provide our clients with services at all stages: estate inventory, property divisibility assessment, process of terminating co-ownership by sale, distribution of the price obtained from the sale, and, when necessary, sale annulment lawsuits.