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Land acquisition in our country by foreigners was forbidden under Article 87 of the Village Law number 442 adopted in 1924 and articles 35 and 36 of the Land Registry Law number 2644 adopted in 1934.
Article 87 of the Village Law number 442 of 1924 reads, "Both natural persons and societies or companies under the control of real persons not possessing Republic of Turkey nationality are forbidden to purchase land and property in villages."
This provision of the law prohibited foreign real persons and corporate bodies from acquiring land in villages.
Article 35 of the Land Registry Law number 2644 of 1934 reads, "Foreign natural persons may acquire and inherit real property in Turkey without prejudice to provisions limiting application and on condition of reciprocity."
Article 35 granted foreign natural persons the right to acquire land in Turkey subject to legal rules introducing restrictions and prohibitions.
Then, according to Article 36 of the Land Registry Law number 2644, "Foreign natural persons may own self-standing farms that are unattached to a village and 30 hectares of land; however they are required to obtain the approval of the Council of Ministers for amounts in excess of 30 hectares."
The provisions of this law were enforced until 1984.
Law number 3029 enacted by the ANAP (Motherland Party) government in 1984, by adding a subparagraph both to Article 35 of the Land Registry Law number 2644 and to Article 87 of the Village Law number 442, permitted "the acquisition by foreign real persons, companies and societies, following a decision of the Council of Ministers, of land everywhere including villages, suspending the principle of reciprocity."
However, the Constitutional Court annulled this law on 13 June 1984 in Decision number 1984/14 Esas, 1985/7.
In spite of the Constitutional Court’s lengthy reasoned judgment, the ANAP government enacted Law number 3278 dated 22 April 1986 and for a second time made changes to the law by adding the same subparagraphs to Article 35 of the Land Registry Law and Article 87 of the Village Law.
The Constitutional Court again annulled the law in question in Decision number 986/18 Esas, 986/24 dated 9.10.1986, stating similar grounds.
With this the question was forgotten for a lengthy period of time. That is until it came back into the news with Law number 4916 that was adopted thanks to the efforts of the Justice and Development Party government.
Article 19 of the Law Concerning Amendments to Various Laws and the Statutory Decree Concerning the Organisation and Duties of the Ministry of Finance number 4916 dated 19 July 2003 reworded Article 35 of the Land Registry Law number 2644 dated 22.12.1934 so as to permit foreign natural persons and corporate bodies to acquire land in our country, including in villages, and abrogated Article 87 of the Village Law number 442 adopted in 1924 along with Article 36 of the Land Registry Law.
According to the new wording, "On condition of reciprocity and compliance with legal restrictions, foreign natural persons along with foreign incorporated commercial companies are granted the right to acquire immovable property; furthermore the condition of reciprocity is suspended in the case of foreign natural persons who acquire moveable property by inheritance; a provision has been introduced for the citizens of countries where there is no reciprocity with the Republic of Turkey who inherit immoveable property to acquire such property and then convert it into cash by disposal."
This important change, when previously foreigners were prohibited from acquiring agricultural land in villages, with its new wording permits "foreign natural persons and corporate bodies to acquire agricultural land in villages."
The Constitutional Court in its decision number 2003/70 Esas and 2005/14 dated 14.3.2005 annulled this wording. This decision was published in the Official Gazette on 26 April 2005 and came into force on 26 July 2005. Certain sections of the Constitutional Court’s decision are reproduced below:
We see that in the Ottoman Empire no right was accorded to foreign corporate bodies to acquire property, the corresponding right for foreign natural persons was granted in the Law Concerning the Ownership of Property by Foreign Nationals dated 7 Sefer 1284 (16 June 1868).
In the Republic of Turkey Period, however, under the Lausanne Peace Treaty the foreign national representation system approved by the Law dated 7 Sefer 1284 was replaced with a system of legislative reciprocity thus imposing partial restrictions on the ability of foreigners to acquire property. The Republic of Turkey that had adopted the system of legislative reciprocity under the above-mentioned treaty, seven months after this treaty was signed, enacted the Village Law under which foreign natural persons and corporate bodies were prohibited from acquiring real property in villages. There is no doubt that such a restriction was introduced with the aim of protecting the national unity and solidarity of the newly established state and because of concerns felt concerning various drawbacks that could result from the introduction of a foreign component to regions that were particularly in social and cultural terms undeveloped and where state supervision had yet to achieve the desired effectiveness. It cannot be claimed that such aims and reasons have today lost their importance and value.
This restriction introduced in the Village Law was followed by the restriction in Articles 35 and 36 of the Land Registry Law.
Until Law number 4916 came into effect there was no general legal rule that granted foreign corporate bodies the right to acquire real property in our country. (As outlined in the reasons for the Constitutional Court decision number E.1984/14, K.1985/7 dated 13.06.1985) a consensus of opinion had formed opposing the acquisition of real property by foreign companies in Turkey as a matter of principle.
General jurisprudence also does not favour enabling the acquisition by foreign public law corporate bodies, particularly states, of real property in another state; considering that the acquisition by a state of real property in another state would infringe on the principle of the political unity of the latter state and would lead to political conflict, even the principle of reciprocity in such matters, with a few exceptions, is considered to be invalid …
Certain states take the kind of land into account when imposing restrictions; for example, they do not permit foreigners to acquire agricultural land …
The reason for such a restriction is that the acquisition by foreigners of land and property in the country cannot be regarded as a mere question of ownership. Land is the inalienable basis – the material element - of the state, the symbol of sovereignty and independence. There can be no state without a country. A country embodies the area in which state authority applies. The state, based on the superior power enshrined in it, secures and oversees the security and interests of the human community that is resident in the country and constitutes the other material element of the state; it is precisely thanks to this basic duty that it possesses superior authority based on its sovereignty over the country. In matters concerning land, a fair, proportionate restriction that respects human rights is essentially of the nature of a defensive measure for the state. For the state to abandon such a measure is generally unthinkable. The possibility of foreigners who buy land in a certain region becoming a majority in that region and exerting influence such that they initiate a process that ends in a position where land of our country that has been acquired by foreigners risks being detached from the country should be kept in mind, and examples of this exist in recent history.
Article 35 of the Land Registry Law contains a provision that permits foreign natural persons to acquire real property in Turkey without prejudicing provisions concerning restrictions and on the basis of reciprocity.
Article 36 of the Land Registry Law states that foreign natural persons require government permission to own self-standing farms unattached to any village or more than 30 hectares of land outside village boundaries. Legal inheritance is excluded from this provision; ownership of the aforementioned farms and land in excess of 30 hectares by foreign natural persons by means of a will or in the capacity of heir also requires government permission; should permission not be granted provision is made for the excess amount to be converted into cash by disposal.
Article 87 of the Village Law, on the other hand, forbade foreign natural persons societies or companies under the control of individuals from acquiring land or property in villages …
Against the background of this legal position under our laws and constitution concerning the acquisition of property by foreigners in Turkey, Article 9 of Law number 4916 by changing Article 35 of the Land Registry Law and abrogating Articles 36 of the Land Registry Law and 87 of the Village Law, created new principles and procedures for the acquisition by foreigners of real property in Turkey. The new wording introduced to this end have also granted certain foreign commercial companies the right to acquire immovable property in our country …
It is clear that such wording which reduces the principle of reciprocity to mere rhetoric are incompatible with Paragraph 2 of the Preamble to the Constitution …
It also appears that the wording in question in the first sentence of Paragraph one of Article 35 is contrary to the principle of the ‘indivisible unity of the exalted Turkish state’ included in Paragraph one of the Preamble to the Constitution. For granting the right to foreign commercial companies to acquire immovable property in Turkey where the framework granting such a right creates opportunities for the circumventing of the reciprocity condition is a situation that threatens the indivisible unity of the state from the point of view of the land – country component.
Moreover, while almost all European Union members do not permit foreigners to acquire real property on agricultural land, to open the possibility for foreigners to acquire the land of the country as a whole in the wording of the first sentence shows that the principle of reciprocity in the first sentence has been reduced to rhetoric and removed of all substance.
The principle of reciprocity, from the point of view of ownership, does not only mean that countries reciprocally permit natural persons and corporate bodies to acquire property in the other country; there must also be parallels between countries with reference to the way restrictions are applied on the enjoyment of such rights.
To grant rights to foreigners to acquire real property within the country as a whole as a rule without establishing or requiring such parallels between countries, not only conflicts with the principle of reciprocity but also endangers the indivisible unity of the country since foreigners can thus easily obtain control of the land of the country by means of purchase.
If a commercial company upon which the right to acquire immovable property is to be conferred at the same time has the status of a public law corporate body, this is a situation that further broadens the dimensions of this danger.
In the final analysis, granting the right to foreign commercial companies to acquire immovable property in the country without any conditions that this be to the benefit of our people and country, for example the need to acquire on a certain scale immovable property as an investment or operational area, is incompatible with the common good.
It is inconceivable that opening up the land of the country for the acquisition of real property by foreign natural persons and foreign commercial companies, without excluding segments like strategic areas and agricultural areas, within a framework in which the reciprocity principle is condemned to remain mere rhetoric and where there is no common good can be deemed compatible with the principle of the indivisible unity of the country included in Paragraph one of the Preamble to the Constitution.
It is clear that the wording in the first sentence of Paragraph one of Article 35, from these points of view, conflicts with the principle of "the indivisibility of the existence of Turkey with its state and territory" set down in Paragraph 5 of the Preamble to the Constitution.
For the same reasons it is necessary to state that the wording in the first sentence of Paragraph one of Article 35 conflicts with the principle "The Turkish state with its territory and nation is an indivisible entity" set down in Article 3 of the Constitution.