Every year, thousands of landowners find themselves in a major legal dilemma after agreeing with their contractor "on paper" and signing a document. A two-page text prepared in a real estate office sometimes jeopardizes a piece of land that has been worked on for years, or millions of liras.
However, the solution to the problem is actually hidden in a single sentence: Construction contracts in return for land share are legally invalid unless they are drawn up ex officio (resen tanzim) at a notary public. But this sentence is not as rigid in practice as it seems. Over the decades, the Supreme Court of Appeals has stretched this strict rule for certain special cases through its jurisprudence. So, what are these exceptions, when do they apply, and do they really protect you? In this article, we address all these questions step by step.
What is a Construction Contract in Return for Land Share?
A construction contract in return for land share is a contract in which the landowner commits to transferring specific shares of their land to the contractor, and the contractor, in return, undertakes to construct a building on this land with the agreed qualities and scope, delivering the designated independent sections to the landowner.
In Turkish law, this contract is considered a "mixed-nature contract" because it contains elements of both a construction contract (Turkish Code of Obligations [TCO] Art. 470 et seq.) and a real estate promise-to-sell contract.
This mixed structure brings with it multi-layered legal liability. Which provisions of the contract will give rise to obligations varies depending on the parties' performances, the contract process, and the nature of the dispute that arises. Therefore, this contract should not be evaluated merely as a construction agreement, but as a comprehensive legal relationship that directly affects property rights.
The Form Requirement: What Does the Law Say, and Why is it So Important?
Article 706 of the Turkish Civil Code and Article 89 of the Notary Law mandate that contracts giving rise to the obligation to transfer real estate ownership must be drawn up in an official form at a notary public. This obligation applies to construction contracts in return for land share, promise-to-sell contracts, and even essential amendments to these contracts.
An ordinary written document, an email exchange, a WhatsApp message, or a verbal agreement—none of these are considered legally valid contracts. The mistake many people make at this point is this: There is a signed paper, there are witnesses, there are even payment receipts. But there is no signature at the notary. These documents can be used as evidence in court; however, the sole criterion for the validity of the contract is the notarized signature.
Legal Consequences of Non-Compliance with the Form: Is the Contract Deemed Never to Have Existed?
The legal consequence of a contract that violates the form requirement is considered absolute invalidity (butlan). This means the contract is deemed invalid from the very beginning; it cannot be cured later. In practice, the consequences of this are quite severe:
The landowner cannot base a claim for the contractor's default on an invalid contract. The contractor cannot demand the transfer of land shares that have not been assigned to them through the courts. Third parties who buy apartments "off-plan" may learn on the delivery day that the legal foundation they relied on for title deed registration is invalid. Everyone suffers a loss; the landowner, the contractor, and the buyers who paid for their apartments without knowing this situation.
When non-compliance with the form is asserted, the performances already rendered by the parties can be claimed back within the framework of the unjust enrichment provisions (TCO Art. 77 et seq.). The landowner can demand the return of the transferred shares; the contractor can request the expenses of the construction they built based on cost value. However, this path is both uncertain and long; lawsuits that last for years await you.
The Exception of the Supreme Court: Not Invalid Under All Circumstances
This is exactly where the picture changes. The Supreme Court of Appeals, through its consistent jurisprudence established over decades, has accepted that contracts violating the form requirement should not be considered invalid in every situation. The basis for this exception is Article 2 of the Turkish Civil Code: The rule of good faith and the prohibition of the abuse of rights.
The Completion Rate of the Construction is the Determining Criterion
According to the established jurisprudence of the 15th Civil Chamber of the Supreme Court of Appeals: If the construction is largely completed (in practice, a rate of 90% and above is generally taken as the basis), if the parties have knowingly and willingly implemented the contract in practice, and if the performances have been mutually fulfilled; then asserting the invalidity of the form after the fact is considered an abuse of rights under TCC Art. 2 and is rejected by the court.
The Supreme Court Says: According to the deep-rooted jurisprudence of the 15th Civil Chamber of the Supreme Court, in cases where the construction is largely or completely finished, one party asserting the formal invalidity of the contract is incompatible with the principle of good faith in TCC Art. 2 and is blocked by the prohibition of the abuse of rights. The essence of this approach is: The legal system does not grant this opportunity to a person who wants to invalidate a contract they willingly entered into and practically applied, just because it turns against their interests.
What Happens if the Preliminary Contract (Protocol) is Not Notarized?
Another common mistake in practice is that parties first sign a "preliminary protocol" or "letter of intent" thinking they will go to the notary later for the main contract. This approach is highly risky from a legal perspective.
Any document that has the nature of a promise for a construction contract in return for land share is subject to the exact same form requirement. The Supreme Court accepts that the preliminary contract (promise to sell) of a construction contract in return for land share must also be drawn up ex officio. A preliminary agreement or protocol made without going to a notary lacks legal binding force.
5 Common Critical Mistakes
Mistake 1 — Signing the Contract Without a Notary: This is the most common and devastating mistake. The thought of "I trust them, no need for a notary" paves the way for disputes worth millions.
Mistake 2 — Not Annotating the Contract in the Land Registry: Even if done at a notary, without an annotation (şerh) in the land registry, it becomes very difficult to prevent the contractor from transferring shares to third parties. The 2025/2 Unification of Jurisprudence Decision concretized this risk.
Mistake 3 — Making Verbal Amendments: Every essential change, such as extending the delivery date, changing the apartment sharing ratio, or revising material standards, requires notary approval again. Changes made verbally or via WhatsApp are not legally binding.
Mistake 4 — Assuming a Power of Attorney Replaces the Contract: A general power of attorney given by the landowner to the contractor does not cover the lack of an unnotarized contract. The two are independent documents.
Mistake 5 — Ignoring the Status of Third-Party Buyers: If the contract is invalid or there is no annotation, the ability of third parties buying apartments off-plan to obtain their title deeds is also jeopardized. The grievances these people suffer can also bring the landowner's legal liability to the forefront.
A Complete Checklist for a Valid Construction Contract in Return for Land Share
Before signing your contract, verify each of these points:
Is the contract drawn up ex officio at a notary?
Are the identity information, representation authorities, and signature circulars of the parties complete in the contract?
Is it clearly stated which land shares will be transferred in exchange for which independent sections?
Are the delivery date, delay penalty (contractual penalty), and sanctions concretely regulated?
Are the application mechanisms for incomplete and defective work specified?
Has the contract been annotated in the land registry?
Is there a provision stating that essential amendments to the contract are also subject to notary approval?
If a revenue-sharing model is involved, are the revenue audit mechanisms clear?
The Number of Lawsuits Falling to Courts Regarding the Validity of Unnotarized Contracts
This mistake is much more common than one might think. A significant portion of the real estate disputes heard in the Civil Courts of General Jurisdiction across Turkey consists of construction contract lawsuits involving claims of formal invalidity.
Court processes can take an average of 3 to 5 years; during this time, the construction may remain unfinished, and liens or mortgages may be placed on the properties. If the contractor abandons the construction, this process becomes even more inextricable.
The conclusion is clear: Whenever going to the notary seems "troublesome" or an "unnecessary expense," remind yourself of this: This contract determines property rights worth millions of liras. A one-hour notary procedure is much cheaper than lawsuits that will last for years.
