Pre-Release Right in Real Estate
The right of foreman is an innovating right that gives the owner the right to buy the property with his unilateral declaration if the real estate owner sells the property to a third party.
As this definition shows, the right of pre-release is a conditional right that can be used if the immovable owner wants to sell the property to a third party.
The pre-contractual right is a conditional right of purchase. This agreement between the immovable owner and the owner of the pre-ownership agreement has consequences between the parties. However, if the contract is destiated in the title deed register, the right to foresee can also be asserted against the third party who purchased the property.
The legal basis for the right of pre-preeming arising from the convention is article 735 of the Turkish Civil Code. Is the regulation contained in the article. In order for the pre-release agreement to be valid, it is sufficient to have it done in writing. By written form, you mean the name of the written form. Because pre-release agreements often manifest themselves in the form of a record placed in leases, the legislator has facilitated this issue.
The right of pre-release can be established for a maximum of 10 years. The laws can also be deserized for the period of time regulated. In any case, the effect of the sherry ends ten years after the date of the sherry.
The right to pre-existing rights, which have not been granted to the land registry, can only be asserted against the owner and his complex successors who have signed the pre-release agreement. The right to foresee can be asserted through litigation against the buyer. This case must be opened within 3 months from the notary notification of the sale and in any case within 2 years from the sale.
Terms and conditions
The seller or buyer must inform the owner of the pre-disclosure right through the notary that the sales contract has been made and the contents of the pre-sale agreement are notified to the owner if the sales contract is eliminated or approved for reasons arising from the buyer’s person, this cannot be argued against the owner of the pre-release right. If the contract establishing the pre-release right is not otherwise stipulated, the pre-owner shall win the property with the conditions related to the sale agreed with 3 people. The same rules apply in transactions equivalent to sales in economic terms.
Expiration
It is possible to waive the pre-contractual right before or after the sale. This waiver may be entirely related to the right or to a particular recipient.
The pre-contractual right ends with the destruction of the property. Since it is a right that breeds innovation, the pre-claim right arising from the contract is also exhausted by the exercise of the right. If the beneficiary waives the right to pre-release completely and for all sales, the pre-claimant right will also expire.
Lawsuit Based on Contractual Precondition
Plaintiff : Plaintiff is the person who is granted the right of forequire by the Contract in the case based on the pre-claimant right arising from the contract.
Defendant: The right of pre-trial is used by filing a lawsuit against the buyer. However, if the share is not registered on behalf of the buyer after the sale, the pre-sale case will have to be filed against the seller.
Court in charge: The court in charge of the cases to be filed for the exercise of the right of foreplay is the small claims court.
Competent court: The court of residence where the property is the subject of the right of pre-release is authorized.
Deserving Period: The holder of the pre-release right must exercise this right within the period specified in the law in order to exercise this right. The right holder of the pre-release must sue within 3 months from the date of notified of the transaction and in any case within 2 years starting from the sale.
RESPONSIBILITIES OF CORPORATION COMPANY AND LIMITED COMPANY PARTNERS
1-INTRODUCTION
In accordance with the Turkish Commercial Code;
The Joint Stock Company is a company that has a commercial title, whose capital is specific and divided into shares, and which is responsible only for its assets due to its debts. Shareholders are solely responsible for the capital shares they have committed and against the company.
The Limited Liability Company is established under the title of a trade by one or more natural or legal persons; the principal capital is specific and this capital consists of the sum of the principal capital shares. The shareholders are not responsible for the company’s debts, but are obliged only to pay the principal capital shares they have committed and to fulfill the additional payment and sub-payment obligations stipulated in the company contract.
In accordance with the provisions of the Turkish Commercial Code, both in the joint stock company and in the limited company, the responsibility of the partners is limited to the capital they have committed to put in the company. In other words, the shareholders are responsible for all their assets, up to the amount of capital they have committed due to the company’s debts. They have no responsibility for the part that exceeds that. This rule, which applies in terms of commercial law, also applies to tax law in joint stock companies, but in limited companies the situation is different. Limited liability partners are directly responsible for all of the receivables that cannot be collected from the company, at the rate of their own capital shares, and subject to scrutiny in accordance with the provisions of this law.
2-RESPONSIBILITIES OF CORPORATION COMPANY PARTNERS AND BOARD MEMBERS
- RESPONSIBILITIES OF THE MEMBERS OF THE BOARD OF DIRECTORS OF THE COMPANY
- Responsibility within the framework of Turkish Commercial Code
If the members and directors of the Board of Directors violate their obligations arising from the Law and the company’s articles of association with defects, they are responsible for the damages they have caused to both the company, shareholders and shareholders in accordance with Article 543 of the Turkish Commercial Code.
Article 368 of the Turkish Commercial Code states that “The Board of Directors may appoint commercial representatives and commercial representatives”. As per this regulation, the Board of Directors may appoint non-representative board members or those affiliated with the company’s service contract as commercial representatives or other merchant assistants with limited authority. The board of directors is responsible for the damages that these appointees will cause to third parties and the company. Whether or not you are a partner of the company for this responsibility has no effect.
- Responsibility within the Framework of Public Debts
The assignments that are required to be fulfilled by the companies that are responsible for tax are carried out by the legal representatives of the companies. Taxes that cannot be taken from the existence of the companies responsible for the tax due to the failure to fulfill these assignments and related receivables are subject to article 10 of the Tax Procedure Act. In accordance with the article, the collection can be carried out by going to the personal responsibility of legal representatives who do not fulfill the assignments. Legal representatives therefore have the right to reimpim the company for the taxes they pay. Repeat article 35 of the Law on Public Receivables Collection. “Public debts that cannot be fully or partially collected from the company’s assets or that are understood to be non-collectable are collected from the personal assets of legal representatives. This rule also applies to representatives of foreign persons or institutions in Turkey. Legal representatives, company directors or surrogates may reim place the amounts they have paid on the company.”
Section 88 of the Social Insurance and General Health Insurance Law No. 5510. The article contains the regulation “Other substances shall be applied in the collection of unpaid premiums and other receivables within the period of the Institution, except for articles 51, 102 and 106 of the Law on the Collection Procedure of Public Receivables No. 6183”. The same article states that ‘If the insurance premiums and other receivables of the Institution are not paid for the periods specified in this Law without justification, the public officials responsible for accrual and disbursement of public administrations, senior managers or officials of other employers with legal entities, including members of the company’s board of directors, and their legal representatives are jointly and collectively responsible to the Institution together with their employers.’ The provision is included. In accordance with these legal regulations, if the Social Security Institution’s insurance premiums and other receivables are not paid within these periods without justification, senior executives or officials and legal representatives, including the members of the board of directors of the indebted company, may be held jointly and jointly responsible with the company.
Unpaid social insurance and general health insurance premiums, administrative fines, unemployment insurance premiums, late increases and participation shares will be converted into social security institutions and the relevant provisions of the Law on the Collection of Public Receivables will be applied in the collection of these receivables.
In summary, the board members, senior executives and legal representatives of the joint stock company are jointly and collectively responsible for all debts owed to the social security institution of the company.
If the board member and senior executives who manage the company or the legal representative at the time of the birth and payment of the public receivable are different individuals, they will be held personally responsible for public debts.
The fact that the joint stock company has been liquidated for any reason or that the company has been liquidated does not eliminate the responsibilities arising before the date of liquidation of legal representatives. The responsibility of the board members and senior managers relates to the public debts of their time in office. Even if their duties in the company have ended, their responsibilities due to public debts for their time in office remain. The members of the board of directors, their senior managers and their legal representatives have no responsibility for the public debts of the period after the expiration date of their duties.
RESPONSIBILITIES OF ANONİM COMPANY PARTNERS
Turkish Commercial Code 329. In accordance with the provision of the Article, joint stock company partners are, as a rule, responsible only for the share of capital they have committed and against the company.
Company partners who are members of the board of directors are responsible for all public debts of the company, regardless of their capital shares. However, the responsibility here is not due to their partnership, but to the fact that they are members of the board of directors. Joint stock company partners who are not members of the board of directors and do not have any executive duties or representations in the company have no responsibilities other than the capital they have committed to put in the company due to public debts.
- RESPONSIBILITIES OF LIMITED COMPANY PARTNERS AND BOARD MEMBERS
1-RESPONSIBILITY OF THE MEMBERS/DIRECTORS OF THE LIMITED COMPANY’S BOARD OF DIRECTORS
2-Responsibility within the framework of Turkish Commercial Code (TTK)
The legal responsibility of the directors is mainly regulated in article 553 of the TTK. According to the regulation, founders, board members, directors and liquidators are responsible for the damages they cause to both the company, shareholders and company creditors if they violate their obligations arising from the law and the articles of association with their defects.
Responsibility within the Framework of Public Debts
The duties of the companies that are responsible for the tax are carried out by the legal representatives of the companies. Due to the failure to fulfill these duties to the company, tax and related receivables that cannot be taken in whole or in part from the existence of the companies responsible for tax, tax procedure law 10. In accordance with the article, the personal responsibility of legal representatives who do not fulfill the assignments can be taken. Legal representatives have the right to reimmit taxes to companies for the taxes they pay in this way. Repeat article 35 of the Law no. 6183 on the Collection of Public Receivables. In accordance with the provision of article 10, public debts that cannot be fully or partially collected from the company’s assets or that are understood not to be collected are collected from the personal assets of legal representatives. This rule also applies to representatives of foreign persons or institutions in Turkey. Legal representatives, company directors or regents may reim place the amounts they pay on the company. When insurance premiums and other receivables are not paid, the board members, senior executives and legal representatives are jointly and collectively responsible with the company.
RESPONSIBILITIES OF LIMITED COMPANY PARTNERS
Regarding limited liability companies, the 573rd edition of the TTK. The article sets the limits of responsibility in the partners. TTK’s 573. “The Shareholders are not responsible for the company’s debts, but are obliged only to pay the principal capital shares they have committed and to fulfill the additional payment and sub-action obligations stipulated in the company contract”, limiting the responsibilities of the Limited company partners to third parties. The shareholder’s liability is limited only to the amount of capital committed. They are not responsible for the common company’s debts to third parties and to the company’s creditors.
The exception to the limited liability of the partners in limited companies is section 35 of the Law on the Collection Procedure of Public Receivables. It is the regulation that is introduced with the article. On the 35th anniversary of the AATUHK. In the article; “Limited liability partners are directly responsible for the ratio of capital shares as it is understood that they cannot be fully or partially collected from the company and are pursued in accordance with the provisions of this Law.” In other provisions of the Article, it is stated that if the limited liability partner transfers the share of the capital in the company, the individuals who transfer and inherit the share shall be held responsible for the payment of the public receivables before the transfer, and if the shareholders are different individuals at the time of the birth and payment of the public receivables, these individuals shall be liable for such debt.
The responsibilities of limited liability partners in the company’s public debts are circumstantant responsibilities. The public debt of the company to which the partner is responsible is a debt independent of the capital debt that the partner has committed or paid against the limited liability company. In other words, the public creditor institution must first apply for the assets of the limited liability company and the personal assets of the partners can be applied if the public receivable cannot be collected from the company’s assets.
