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Old 14th July 2011, 00:29   #1 (permalink)
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Help! Constructors not giving tapu(deed)!

Hello, we are in a terrible situation and could use any advice people who have heard of similar circumstances or know honest reliable lawyers in the city of Antalya. We paid for an apt from a local Antalya company called UZAS at a complex called Tennis Resort, and have all our receipts and other documents to prove this. Yet, the owner/constructor has not given us the tapu and its been over 3 years. We tried to speak to him and negotiate, but no tapu. We got a lawyer and got our security/military checks approved, and talked to the owner some more, but no tapu. We thought we did everything right by getting a lawyer, keepign records, etc. However, we have not gotten the tapu and now our apt lock has been changed! We are told by the lawyer that the owner was unable to pay some employees and that he has given the tapu/deed of our apt to an employee he owed money to, instead of payment. meanwhile, a separate group lawsuit was filed by others people who bought at the same place, Tennis Resort, who are in the same situation. The court ruled that the owner must repay them. However, the owner has filed bankruptcy and is nowhere to be found. So these people have a decent court ruling, but nobody to collect the money from! The court did not rule that the tapu/deed should be given over to them. Does anyone know what we should do next? Has anyone heard of such a situation before? We would like to speak to another lawyer, does anyone know of someone honest we can trust who speaks English? We are pretty burned by the entire situation and cautious of everyone we deal with now, as you can imagine! Thank you for your tips and advice.
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Old 14th July 2011, 00:48   #2 (permalink)
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Re: Help! Constructors not giving tapu(deed)!

In theory you own nothing as you have no tapu.

There are companies/people who can check everything out for you and decide if there is anything to go after and/or what your alternatives are. These are positive/legal checks done on the finances etc of the people concerned. They are not lawyers and they are less expensive.

I am sure one of them will contact you.
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Old 14th July 2011, 08:47   #3 (permalink)
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Re: Help! Constructors not giving tapu(deed)!

Hi LOLOMAHER

This information may give you some insight into a lawyers thoughts on your circumstances.....please remember these are his thoughts and how he views this aspect of constructor contracts.

You may find something in his thoughts that change your circumstances from the advice you have already received and give you some hope to challenge wrongdoing.




11. Real Estate Construction

11.1. Licensing of Construction Activities

Unfortunately there is no obligation to obtain a particular license for contractors. The rapid growth in construction sector causes many people, whose actual job is not contractorship and are engaged with the occupation so called “build-and-sell”, to enter the sector. Unfortunately, due to people, who used to work at constructions as headworker and hurrier, entering, after a period of time, into the market as contractor, it cannot be easily said that people, whose experience, equipment and capital are notable, make out sufficient quality work in the market. This shows that the legal regulations about contractorship is not sufficient.

It is alleged that 65 percent of the buildings in Turkey were built against the zoning plan, since capacity for making building is not sought in those who make buildings. The fact that establishment of a limited liability company is enough for acting as contractor, attracts attention as a big deficiency in this area.

As for auditing the buildings, contractors are granted the construction permit by municipalities for the areas within municipality and by special provincial administration under province governor's office for the areas outside the neighboring area of municipalities. Municipalities are responsible for auditing the building by their own teams and their audit organizations until the construction is complete. By Act 4708 on Building Audit, which was enacted after the last large-scale earthquake in Turkey, constructions are audited strictly through audit organizations in 19 provinces. Data regarding the buildings, owner of the building, the builder, the architect, project and building auditors are provided to concerned units of Ministry of Public Works, in construction permit stage.

11.2. Construction Contract

Under Turkish law, construction contracts are composed of three elements: creation of work, wages and agreement. The work means, in general terms, the result that contractor makes effort to create on behalf of the client. It is handled in a wide range including creating the work on a construction area, making a new building, making modification on an existing building, making addition to an existing building, repairing an existing building or demolishing the same. Another element of the contract is the wage payable by client as a consideration for the work to be created. A construction contract is a contract that charges both parties with obligation. For this reason, creation of a building work must absolutely be contracted in consideration of a wage. Issues regarding wage may be specified beforehand, but a failure to specify them will not change the effect: it is required to pay a wage in return of creation of the work.

Basically, a construction contract is generally formed by two mutual parties as undertaker (contractor) and job provider (client). Job provider is the party that orders the building and can be an individual or a legal person. The undertaker is the party that undertakes to implement the ordered building. Undertaker can be an individual or a legal person, especially a commercial partnership such as joint stock company, limited liability company or a collective company. Undertakers can gather as an unincorporated company and implement the building together, which is seen in practice often under the types of “joint venture” and “consortium”. In a building project there are many parties along with the undertaker and job provider, such as designers, sub-contractors, material-equipment suppliers, bank and insurance companies.

Under Turkish law, a formality condition is not required by law. However, in practice, these kinds of contracts are made in writing and in official formality. Generally, according to Act 4734 on Public Tenders, the public works must be provided for by a contract. Notarization of the signatures under these contracts are required for effectiveness.

Termination of construction contracts can apply upon fulfillment of the contractual obligations or upon parties' withdrawing from the agreement. Under law, if the actual price significantly exceeds the appraised price, without influence of the client, then the client is entitled to withdraw from the contract in course of production of the work or thereafter. In this instance the client, who withdraws from the contract, is obligated to pay damages to the contractor. Also, the agreement will be invalidated if performance of the subject of the contract became impossible due to an unexpected cause. Under Article 368 of Obligations Code, if the work that was not delivered, dissolves in part or in full due to an unexpected cause, then the undertaker may not claim the wage for the work, nor the expenses therefor. If the work dissolves after the delivery then the risk will pass to the client from that moment and the job provider will be charged with the damages to be incurred. Violation of the contract by one of the parties is another cause for termination of the contract. In addition, the Obligations Code grants the client the power to terminate the contract without any rightful cause on condition of compensating all damages of the contractor.

Out of construction contracts, there is another type of contract under Turkish law called “contract for building in return of a land share”. Parties to contract of this type are contractor and land owner. In this type of contract the land owner demands construction of certain apartments by transferring the contractor certain shares of land instead of money, whereby land owner parlays his/her land better by acquiring apartments instead of purchasing an apartment or a residential house, and is not obliged to pay money for it. Whereas contractor makes profit by performing the whole building in return of the land shares he/she acquired from the land owner in return of the building contractor performed. Contract for building apartment in return of land share has characteristics of a mixed contract as the elements of contract for sale of immovable property and work contract are gathered therein. Here, land owner's obligation as a party to the contract is to transfer the ownership of immovable property, which is an element of the contract for sale of immovable property and such obligation is in an interchange relation with the reverse party's obligation of implement a building and transferring the built independent portion, which is an element of work contract.

There are various forms of Contract for building apartment in return of land share; a Contract for building apartment in return of land share can be agreed as performance of Contract for building apartment in return of land share by transferring certain land shares to the contractor, performance of Contract for building apartment in return of land share by transferring the whole land to contractor, performance of the contract by transferring the land share accordingly with the completion level of the building, contract, wherein land owner promises sale of the land shares and the contractor promises to implement the construction.

As for the validity requirements of Contract for building apartment in return of land share; formality of this contract is important, because scope of this agreement is transfer of and a promise for transfer of the ownership of an immovable property. Since the scope of the contract between the land owner and contractor related to the land, and therefore the immovable property, it is required, under laws, to make the contract, containing a promise to transfer the shares, in the statutory form.
Here, the authority to adapt the contract into official form will be land registry of, in principle. However under Act on Notaries, it is also provided for that contracts of promise to sale of an immovable property can be drafted by notaries. Accordingly, notaries are authorized to draft a pre-contract regarding Contract for building apartment in return of land share.

If a contract for building apartment in return of land share does not comply with the official formality, then it will be invalid as per the settled precedents. But, in cases where asserting invalidity constitutes abuse of a right, asserting objection of inconsistency with formality cannot effect successfully.

10.3. Functions of General Contractor

Contractors have some responsibilities in the agreements of construction to be fulfilled. The contractors are under the responsibility of informing the situations that might endanger the agreements to be fulfilled property or on its duration. If the contractor neglects this obligation, he has to pay the damages being occurred even if the building has been constructed. Contractors are obliged to make the building agreed in the related contract either by himself or under his supervision but this situation has many exceptions. Because under the prevailing economical and technical conditions it might be obligatory either cooperation or to apply sub-contractors.

However, in this case the contractor itself will be responsible of the damages occurred that kind of undertaking by various contractors is realized either by consortium or joint-venture.

In Turkish Law, the concept of joint venture is defined as partnerships between companies, cooperation, governments, economical institutions, societies or foundation’s own assets with either among themselves or private companies or just persons, to undertake a certain job to be carried out cooperatively and share the income. However, since this definition is not sufficient, it does not create an obstacle for the joint venture to be established among private persons and members of the companies subject to private laws. The relations in the agreements being acted between the contractors and owners of the job as a result of establishing consortiums are subject to the ordinary partnership regulations in Turkish Law Obligations. However, Turkish law recognizes the concept of subcontractor is a person that arranges a construction contract with the general contractor for the building to be constructed in full or in part.

In such contracts, the contractor should provide the materials and donations by himself. However, the reverse is possible. But even in this situation it is under the obligation to use them with due care and to give an account about its state and give back the rest of it if there is any.

Contractors are also under the obligation to commence the work on time, to keep on and to accomplish it during the agreed period. As for the situations being deserved in construction agreements, there are various regulations in Turkish Law.

First, the price should be fixed in such agreements, theoretically. There may not be any price included in the agreement. But it does not mean that there will not be any price. The parties of agreement may decide the price either in advance or approximately. In these agreements, the price of the accomplished work is to be paid when the delivery is realized. Besides, it is also possible partial payment for partial deliveries.

As to the contracts to be enacted for building flats as an allocation of the share of land, there are several differences.

As an example, contractors are obligated to perform their obligations according to the agreement and have no right to increase their credits even if they incurred additional expenses more than they originally estimated.

10.4. Construction Permit

It is a requirement in Turkey to obtain a certificate of occupancy that is regulated by the building occupation section of municipality’s planning authority depicting the information of certificate of occupancy, the date of the completing of building, its title deed, its address, of kind the independent sections and their numbers, the share of building plots, their square meters and their owners. These reports are regulated by administrative districts instead of city municipalities.

In order to obtain a certificate of occupancy, the owner of a building, its contractor or an authorized person should apply to the administrative district by submitting a petition. Upon receipt of such petition, the technical personnel of certificate of occupancy unit will check the building as to being built in compliance with its permission and annexes place. If the building does not have any deficiency it is asked from the owner of its contractor of the following document to be delivered to the Certificate of Occupancy Authority, as follows:

a) Technical reports from the institutions attending to water, electricity and telephone matters, from Civil Defense Directorate, Fire Brigade Authority as pertaining to the installations of the water, electricity, telephone, shelter and lifts elevator and an undertaking confirmed by Notary Public from the technical responsible person of the building and annexes under his supervision. After the technical report and undertaking was given then the General Certificate of Occupancy is regulated. Although, these formalities need to be carried about before mentioned theoretically, yet the said matter presents problems, there are many authorized building in many places of the cities even in their Centrum. They even serve as residences, centers of shopping, industrial centers or sometimes official buildings.

Particularly after the great earthquake in 1999, there have been pressures over the buildings that do not have Certificate of Proficiencies or have deficiencies, these attempts have not been properly successful. Especially as the obligatory earthquake insurance (DASK) is not deemed as an obligation for certificate of occupancy. It has been hindrance against the attempts for getting certificate of occupancies.

Besides, there are many buildings Turkey that have not obtained permission of occupancy and built according to their plans yet not having got certificate of occupancy.

According to the data of DIE (State Statistical Institute), in Istanbul there are 3,393,377, in Ankara 1,128,625, in İzmir 1,140,371, totally 5,662,433 independent building sections. And again DIE’s date 67% of (sixty seven percent) of these sections have no certificate of occupancy consequently are under the statue of illegal buildings. That is there are 3,793,830 unlicensed buildings in the above mentioned cities. By means of building amnesties it is destined to diminish the number of unlicensed building and at the same time to get more income.

b) Construction Permit is a permission to be given by Municipalities or in the cities by governship inhabiting enabling to begin construction of a building within the inhabited areas for the building subject to permission.

It is compulsory to get this permission for all the building, with some exceptions regulated by the Restoration Law No. 3194. Even the excavation being the first stage may not commence without a permission.

Before this permission, it is necessary to apply to Land Register and Land Survey Offices and concerning municipalities, to obtain a document depicting what point and altitudes of channels can be made.

Besides, it is necessary to get a geologic or geotechnical research report being abuse for the plan of restoration by related Administrative Section.

As for the documents to be given either to municipalities or governorships as follows. A petition, a written undertaking, title deed, authorizations and agreement, architectural project, statistical project, electrical and mechanical projects, environment and landscape projects, road and infrastructure participation share and other documents for technical supervision.

If a definition is to be given, a petition is a written application of no obligatory form, showing that the place is within the boundaries of the related concerning municipality, and a permission to be asked for the construction of the building being depicted on the officially registered lot having the qualities of its project. Additionally, a geological report has to be annexed.

c) A written undertaking is a document that the general technically responsible person is to undertake all of the requisites of the construction mentioned in it.

d) Samples of title deeds are the documents place of title deeds or their equivalent acquired from the related Land Register Office that the lot itself belongs to the person/persons or establishment.

e) Authorizations Agreements. In case the lot on which the construction will take place belong more than one person that is a shared one then a document showing the authorized person to carry out the construction and also showing that other owners of the lot give their consent for the said matter, confirmed by Notary Public.

f) Architectural Projects are the projects showing the sections and dimensions of the building and including situation plans, consisting at least two cross-sections and drawn by the architect.

g) Statistical Projects are technical documents consisting of 1/10, 1/20, 1/100 scale plans with the calculations of steel construction in steel-carcass buildings and 1/10, 1/20, 1/100 scale plans with the calculations of informed concrete in related buildings. As for the buildings having entresols they are technical documents consisting plans of necessary scales.

When applying for the construction permission reports prepared by the construction engineer according to the regulation about the buildings to be constructed in disastrous regions according to the type of building, should also be presented to the municipality.

h) Projects of Installations are technical documents showing the technical characteristics at electricity, heating, ventilation, air conditioning, natural gas and hygienic installations of the related building and their position of the said elements and necessary junctional points.

i) Payment Documents of Road and Infrastructure Participating Shares are the documents showing that the duties being paid for road and infrastructure participating and sewage system etc, shares deposited to the concerning technical directorate of related municipality, in order to obtain building constructions.

j) Documents for Technical Supervision, they are the ones application minutes, list of independent sections, the pictures or official sketches of adjacent building and attic plans etc. in case they are anticipated by the related municipality.

10.5. Set into Operation

In Turkey a building, which construction is completed, may be entered into commercial or residential use legally after obtaining construction, zoning and habitation permission. But the practice is unfortunately much different, and many buildings are still used without the required permissions.
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Old 14th July 2011, 13:40   #4 (permalink)
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Re: Help! Constructors not giving tapu(deed)!

Hi Lolo, I'm sorry to hear of your troubles. I don't know of any good/honest lawyers in Antayla (or anywhere else). However, I think that the first thing you need to get checked out is the property itself ie; Who's name is on the Tapu, what debts are registered against it, etc. Contact Carolk at Crescent Homes (details to the left of this page), they do a 'property check' sevice which will cost you a lot less than ANY lawyer.

Sadly, this is not a New Scam , devious barstewards have been doing this all over Turkey for some years now . Don't loose hope of getting what is yours just because 'someone' has told you that the constructor is bankrupt, loyalty within the criminal ranks leads them to lie through their teeth in the hope that you'll give up & bu**er off, leaving them with your money & your property

Good luck, please let us know how you get on.

Quote:
Originally Posted by lolomaher View Post
Hello, we are in a terrible situation and could use any advice people who have heard of similar circumstances or know honest reliable lawyers in the city of Antalya. We paid for an apt from a local Antalya company called UZAS at a complex called Tennis Resort, and have all our receipts and other documents to prove this. Yet, the owner/constructor has not given us the tapu and its been over 3 years. We tried to speak to him and negotiate, but no tapu. We got a lawyer and got our security/military checks approved, and talked to the owner some more, but no tapu. We thought we did everything right by getting a lawyer, keepign records, etc. However, we have not gotten the tapu and now our apt lock has been changed! We are told by the lawyer that the owner was unable to pay some employees and that he has given the tapu/deed of our apt to an employee he owed money to, instead of payment. meanwhile, a separate group lawsuit was filed by others people who bought at the same place, Tennis Resort, who are in the same situation. The court ruled that the owner must repay them. However, the owner has filed bankruptcy and is nowhere to be found. So these people have a decent court ruling, but nobody to collect the money from! The court did not rule that the tapu/deed should be given over to them. Does anyone know what we should do next? Has anyone heard of such a situation before? We would like to speak to another lawyer, does anyone know of someone honest we can trust who speaks English? We are pretty burned by the entire situation and cautious of everyone we deal with now, as you can imagine! Thank you for your tips and advice.
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Old 14th July 2011, 15:47   #5 (permalink)
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Re: Help! Constructors not giving tapu(deed)!

Thanks everyone. Well, our lawyer has told us who the tapu is under and we have been in touch with this Turkish man. He said he worked for UZAS the constructor and they gave him this apt as payment, and we also told him our situation. He has said he will return our furniture. So we are planning to go to the apt with the police, if we can, (to make a record) and get our (new) furniture. Any suggestions as to where to keep it or if it can be shipped elsewhere to us? Then of course we have to decide what we will do with it all and where we will keep it, which is another major hassle. Yes, we are suspect of our lawyer as she made us many promises of negotiating with the constructor for the tapu and suggested we avoid the group law suit option. Yet, as I said the group lawsuit showed no results as the UZAS constructor/owner has fled the country and filed bankruptcy. Its a hard situation, but I agree we should not give up as I get the feeling that is what the lawyer would rather we did. I think its time for another lawyer or legal advisers point of view?
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Old 14th July 2011, 16:28   #6 (permalink)
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Re: Help! Constructors not giving tapu(deed)!

Hı,
So sorry to here thıs agaın.
If the buılder has fled the country or ıs bankrupt,there wıll be very lıttle you or any lawyer wıll be able to do,as the tAPU ıs ın someone elses name.
Mark
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Old 14th July 2011, 16:30   #7 (permalink)
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Re: Help! Constructors not giving tapu(deed)!

I don't know much about Turkish law, but I think it depends who your original contract was with. Was it with the Constructor's company or with the constructor individually. If he has declared himself personally bankrupt and your contract was with him personally then I would not think he has any assets you can claim again. If however, if was with his company and that company still has assets you may possibly be able to claim against those assets. Shirley Ann put a thread on a short while ago about a very good lawyer in the Alanya/Mahmutler area, maybe if you contacted this lawyer he could recommend someone in your area of Antalya. Good luck with this awful mess.

Val
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Old 14th July 2011, 16:37   #8 (permalink)
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Re: Help! Constructors not giving tapu(deed)!

Hi lolomaher
Sorry about the mess you are in . These things in turkey are rife.Our situation although not quite like yours ,still not good though . carolek as suggested is very well in the know ,(cresent homes) will be a good help to put you in the right direction.
We found that you can aproach some one with property rentals and store your furniture like that but it became to exspensive so we decided to sell it , also if you rent empty property to use for your holidays is anothe way.
My choice was get rid one thing less to worry about .Sold the whole lot every mortal thing allnever used on TURKISH LIVING FORUM am i glad i did because all our hasle has now been going on for 6 years and still no property which we payed for ,SO PLEASE get the right imformation as soon as possible so that you know which way to go and NEVER EVER GIVE UP.
good luck KALE
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Old 14th July 2011, 17:23   #9 (permalink)
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Re: Help! Constructors not giving tapu(deed)!

lt is odvious he hasn't payed the landowner and the taxes.Get some advice on how to go to the tax office and also write a detailed letter to the ministry of housing[l think] in ankara about your experience.Name the culprit that he probaly hasn't payed the taxes.Which is most likely because why would he change the locks and give you all the excuses of delays.

Just an idea
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Old 14th July 2011, 18:04   #10 (permalink)
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Re: Help! Constructors not giving tapu(deed)!

Quote:
Originally Posted by lolomaher View Post
Thanks everyone. Well, our lawyer has told us who the tapu is under and we have been in touch with this Turkish man. He said he worked for UZAS the constructor and they gave him this apt as payment, and we also told him our situation. He has said he will return our furniture. So we are planning to go to the apt with the police, if we can, (to make a record) and get our (new) furniture. Any suggestions as to where to keep it or if it can be shipped elsewhere to us? Then of course we have to decide what we will do with it all and where we will keep it, which is another major hassle. Yes, we are suspect of our lawyer as she made us many promises of negotiating with the constructor for the tapu and suggested we avoid the group law suit option. Yet, as I said the group lawsuit showed no results as the UZAS constructor/owner has fled the country and filed bankruptcy. Its a hard situation, but I agree we should not give up as I get the feeling that is what the lawyer would rather we did. I think its time for another lawyer or legal advisers point of view?
Hi Lolo, they will hide (transfer) Tapu's into a variety of people's names, family, friends, so-called EX-workers. This is done to remove the asset from having a 'lien' put on it & to CLAIM it no longer belongs to them, 'poor little me', I have NO money left!!! Do you know how much he owed this ex-worker? Must have been more than a lifetimes wages for a Turkish worker! You can find out exactly what amount was claimed for on the Tapu, obviously the price declared on the Tapu would have been much lower than the real value or the price you paid him for it, this is to avoid taxes, which when it's signed back to him, or onto the next buyer (victim) will not attract a much higher value of tax, on paper that is! all highly illegal, but seems to be 'the norm'.

Was your contract Notarised?
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