A transfer of land carried out without the owner’s knowledge or valid consent, using a forged identity, signature or power of attorney, may be the subject of an action for cancellation and re-registration of title. However, the fact that the property remains with the first buyer and that it was later sold to another person does not produce the same result. The forgery of the document, the chain of transfers and the good faith of the later person are examined separately. Filing a complaint with the prosecutor’s office also does not restore the title record automatically. [1, 2]
In disputes of this kind, the first aim is not only to prove the forgery. Preventing a further transfer of the property, preserving the originals of the transaction documents and directing the claim to the current registered owner must be considered together. The fact that the person who used the forged document cannot be found does not, on its own, prevent legal protection being sought for the property. On the other hand, suing the wrong person, or only waiting for the outcome of the criminal investigation, may cause considerable loss of time.
Which transactions can lead to title cancellation because of forgery?
Another person acting in place of the owner
A person who uses the identity details of the owner to act at the land registry as if they were the owner, replaces the owner’s photograph or identity document, or has a power of attorney drawn up at a notary using another person’s identity may be involved. The apparent official transaction does not by itself prove the actual owner’s participation or valid will. In the examination, the authenticity of the identity is determined, as is who actually carried out the transaction.
The claim must be turned from “I did not sell” into a concrete finding about a transaction. Which transaction, on which date and under which journal (yevmiye) number, is in dispute? Where was the owner on that day? Whose photograph, signature and identity details appear in the land registry or notary file? These questions determine which documents the court will require.
Forged power of attorney or altered authority document
Producing a power of attorney that was never given, and changing the scope of a genuine power of attorney, may call for different technical examinations. The original notary record, the journal entry, the form of execution and the copy submitted to the land registry should be compared. A seal or verification image on a photocopy of the document is not, on its own, sufficient proof of authenticity.
For documents said to have been issued abroad, the registry of the issuing authority and the chain of certification and translation are examined. The fact that a document bears an apostille or certification should not be regarded as an absolute guarantee that resolves every dispute about whether the owner really granted authority. The examination is directed at the particular part of the document to which the forgery claim relates.
How it differs from misuse of genuine authority
Where the owner really granted sale authority but the attorney acted contrary to instructions, the matter is not always forgery. Where the authority was valid but misused, the knowledge and diligence of the buyer who dealt with the attorney are also particularly important. In a forged power of attorney, by contrast, there was no representation intention from the start. For this reason, the outcomes of the review on misuse of a power of attorney should not be carried over mechanically to a forged-document case. [1, 3]
Why the first buyer and the later owner are assessed differently
The first buyer who acquired directly through the forged transaction
Article 1023 of the Turkish Civil Code (TMK) protects, under certain conditions, a third party who acquires a real right in good faith on the basis of an entry in the land register. However, where the basis of the first buyer’s own acquisition is forged, saying only “I did not know it was forged” does not make that invalid transaction valid. The examination asks whether the owner’s real will or a valid authority to represent existed in the original transaction. [1, 2]
For the details of this subject, see the article on cancellation of title obtained from a contractor and the good faith of a third party.
If the buyer has been harmed, that may give rise to claims against others arising from the forgery. However, this does not mean that the real owner’s ownership must necessarily be sacrificed. Cancellation of the title and the buyer’s claim to recover the money paid may proceed against different persons and on different legal grounds.
Reliance on the register at a later sale
For a person who later acquires ownership or a mortgage over the property on the basis of the register entry created by the forged transaction, Articles 1023–1024 of the Turkish Civil Code need to be assessed. If that later person knew of the irregularity of the earlier entry at the time of acquisition, or was in a position to know it had they taken due care, their protection may be prevented. Good faith is assessed as at the time of acquisition; the later discovery of the dispute does not by itself invalidate the earlier acquisition.
Short intervals between sales, an unrealistic price, a close relationship between the parties, the owner’s continued actual use of the property, and knowledge of a lawsuit or formal notice are indicators to be assessed together. Not every family relationship or quick sale is automatic proof of bad faith. Likewise, a payment made through a bank does not neutralize all the other indicators.
| Situation | Core examination | Defence that is not sufficient on its own |
|---|---|---|
| First acquisition with a forged power of attorney | Genuineness of the document and valid authority to represent | Saying one did not know it was forged |
| Later acquisition from the first buyer | Reliance on the register, knowledge at acquisition and due care | Having bought only from the person shown as owner in the land register |
| Mortgage created later | Conditions for reliance on the register when acquiring a mortgage | Being a bank or an institutional creditor |
| Misuse of genuine authority | The purpose of the authority, the misuse and the position of the other party | The power of attorney containing broad authority |
The chain of transfers in a Court of Cassation decision
In the decision of the 1st Civil Chamber of the Court of Cassation (Yargıtay 1. Hukuk Dairesi) dated March 10, 2016, E.2015/7100, K.2016/2940, transfers made with a forged identity and power of attorney were examined. The Chamber explained that examining the good faith of the first buyer does not give validity to the forged transaction, and that a later buyer must be assessed separately. In the case at hand, the short-interval transfers, the difference in value and the problems in the payment defence were considered together. The rejection of the title claim was reversed on the ground that the later owner could not be protected either. [2]
The function of the decision is not to say that once forgery is discovered, all later sales are automatically cancelled. On the contrary, it requires the legal positions of the persons in the chain of transfers to be separated. The petition should show separately the date of each acquisition and the bad-faith facts relating to each person.
How is a forged signature or power of attorney proven?
The transaction file and the original document
Obtaining only the current land register entry from the land registry directorate is not enough. The official deed of the disputed transfer, the application and authority documents, identity documents, the copy of the power of attorney and the relevant entries in the transaction file should be requested. Where the originals are held at the notary, the underlying records and their comparison with the original document are also important. Where the location of each record is known, it should be stated clearly in the evidence petition.
Where the original document cannot be reached, the reason and the institutions searched are recorded. The limits of any technical examination that can be carried out on a photocopy are put to the expert. The court’s assessment should not rest only on a cut-out image or an unclear screen print submitted by one of the parties. The provisions of the Code of Civil Procedure (HMK) on production of documents and examination of forgery are therefore decisive. [4]
Comparison material for signatures and fingerprints
In signature examination, comparison documents that are close in date to the transaction and whose attribution is undisputed carry weight. Signatures on notary transactions, bank records and official institutions’ records can be investigated. Changes in a person’s health or hand movements over the years should also be taken into account in the technical assessment. It cannot be assumed that a few recent signature samples will be sufficient in every file.
Where a fingerprint was used in a transaction, suitable comparison prints and image quality are assessed. Is the matter in question a signature, a fingerprint, an identity photograph or a physical alteration of the document? The questions put to the expert should keep these distinctions apart. Where reports conflict, the expert should be asked to explain which finding and which method the conflict concerns, and to resolve it.
| Fact to be proven | Main record | Limit of the examination |
|---|---|---|
| The signature does not belong to the owner | Original document and comparison samples of undisputed authorship from close dates | Visual similarity alone does not produce a legal consequence |
| The power of attorney was not issued | Notary journal and underlying file | The submitted copy is compared with the institutional record |
| The owner was not at the place of the transaction | Appropriate travel, work or hospital records | A location record alone does not exclude every possibility of representation |
| The later buyer knew of the dispute | Formal notices, correspondence, actual use, payment and relationship records | The indicators must be tied to the date of acquisition |
Lawful gathering of evidence
Correspondence and documents in your own possession should be preserved. No one should access another person’s account without permission, and records must not be altered. For electronic messages, the date, the sender and the context of the conversation should be kept. Health, bank and identity records are obtained, where needed, through the court or the investigating authority. Finding evidence matters, but so does obtaining it lawfully and showing its connection to the dispute. [4]
Does a criminal complaint replace the title action?
Forgery and fraud allegations can be reported to the prosecutor’s office so that the originals of the documents are preserved and the perpetrators are investigated. However, a criminal investigation and the correction of the land registry record are different legal processes. Opening a criminal file does not create an automatic sales ban over the property; the claims in the civil action and temporary protection must be separately established.
Where the examination in the criminal file is necessary for resolving the dispute, the civil court may consider a stay of proceedings pending a preliminary question. Not every investigation requires the whole civil proceeding to be stayed. The Code of Civil Procedure (HMK) Article 209 regulates differently the effects on proof of allegations of forgery of official and private documents. The statement “I said it is forged, so no transaction can now be carried out” is not correct. [4]
Under the Turkish Code of Obligations (TBK) Article 74, the civil judge is independent in assessing acquittal, fault and damage. Even so, findings on the material facts in a final criminal judgment have their own effect, which is assessed separately. No conclusion that “the transfer of title is definitively valid” should be drawn directly from a decision of non-prosecution or an acquittal. [3]
Against whom, where and with what claim is the action brought?
The action for cancellation and re-registration of title is, as a rule, directed against the registered owner on the date the action is filed. Holders of rights in rem whose rights are affected by the claim, such as a mortgage the cancellation of which is sought, are also assessed in connection with the claim. The person who prepared the forged document, the former owner and the notary do not become the correct defendant in a title cancellation claim merely because their names appear in the events. The liability of persons from whom money is claimed must be explained separately.
For an ordinary private law dispute, the civil court of first instance (asliye hukuk mahkemesi) has jurisdiction, and the court of the place where the property is located has exclusive territorial jurisdiction. Where a special rule of jurisdiction applies, that is checked at the outset. The mere fact that a claim concerns a land registry matter does not mean that general mandatory mediation applies; whether the claim and the relationship fall under special provisions is examined. [4]
Where the owner has died, the structure of the estate partnership and whether the claim is directed at the estate or at a specific share must be explained. Where the property was transferred while the action was pending, the current register entry is obtained and HMK Article 125 applies. Where the old parcel was subdivided or merged, the claim is matched with the new records; for an enforceable judgment, the property, the share and the type of right must be clear. This subject is addressed separately in the article on title cancellation and registration for foreigners and persons living abroad.
Interim injunction and time limits
An interim injunction may be requested by setting out the concrete risk of a further resale or mortgage. The court assesses prima facie proof, the risk, proportionality and security. Obtaining a decision is not enough: the measure must be enforced by a request made within one week of its pronouncement (tefhim) or notification, under HMK Article 393. For a measure obtained before the action is filed, the supplementary steps within two weeks concerning the main action and the submission of documents under HMK Article 397 must also be followed.
The one-year period for fraud does not apply merely because a year has passed since the sale, so far as a request to correct an unlawful registration created by a forged transaction is concerned. However, reliance on a legal basis predating the cadastral survey, the later person’s acquisition of a real right, special acquisition provisions and independent claims for money each require separate assessment. The idea that “there is no time limit and no risk” is equally misleading.
If the title cannot be recovered, from whom can compensation be sought?
The protection of a later person does not automatically extinguish the monetary liability of those who took part in the forgery or of other responsible persons. Liability for tort (unlawful act), unjust enrichment, notary liability and the State’s liability for keeping the land registry are each subject to their own conditions. TMK Article 1007 and Law No. 1512, Notaries Act (Noterlik Kanunu), Article 162 are not the same claim; the responsible person, the loss, adequate causation, jurisdiction and time limits are examined separately. [1, 3, 5]
Rejection of a title claim does not by itself produce automatic collection of the same amount from all responsible persons. It must be shown which conduct of the person from whom compensation is sought caused which loss. The same loss cannot be fully recovered several times over; payments made and rights recovered are taken into account.
Court fees and expenses are also determined according to the type of claim and the value of the action. The value of the property, its share, expert and on-site examination needs, notifications and the appeal routes all affect the total cost. For a judgment on the title itself to be applied in the register, finality is required. The possibility of appeal (istinaf) and of appeal on points of law (temyiz) is assessed by the nature and value of the judgment and the date of its notification. [4]
For related topics, see also our articles on cancellation of title for fraud, mistake and duress and the one-year period, cancellation of title for incapacity and cancellation of a sham transfer of immovable property.
Conclusion
Effective preparation for a title transfer made with a forged document rests on the original of the transaction file, a complete chain of transfers, and claims set up for each person. The legal position of the first buyer and the later person’s reliance on the register must be kept apart. The criminal investigation, the title action and temporary protection must be pursued together. The existence of forgery is important, but it must also be shown on what ground whose title will be cancelled, and who will be liable for which loss if the title cannot be recovered.
Frequently Asked Questions
Can I take back my house if it was sold without my knowledge?
If a transaction was carried out with a forged document without your valid will or authority to represent you, cancellation of the title may arise. The outcome also depends on where the property is now and on the circumstances of later acquisitions.
If the first buyer did not know it was forged, does the title stay with them?
The first buyer’s lack of knowledge does not, on its own, remove the invalidity of their own acquisition, where they acquired directly through the forged transaction. A later buyer’s reliance on the register is a different examination.
If the title has been sold to a second person, can I no longer sue?
You can. However, whether the later person is protected under TMK Article 1023 is decisive. Their knowledge at the time of acquisition and their due care are assessed on concrete evidence.
Do complaints to the prosecutor automatically block sales?
No. A suitable request for protection of the title, and the enforcement of the decision given, are also needed separately.
Can a signature examination be carried out on a photocopy alone?
Technically, the examination that is possible depends on the nature of the document. The original and suitable comparison samples should be sought, and the limits of the photocopy should be explained in the report.
Is a document issued by a notary necessarily genuine?
No. The institutional record, the form of execution, the identity and the submitted copy are checked together. An official appearance does not make a forgery claim unexaminable.
Must I wait for the criminal judgment before bringing the title action?
Waiting is not necessary in every file. The need for interim relief, the time limits for independent claims and the civil court’s assessment of a stay pending a preliminary question should be addressed separately.
Can I recover both the property and its full value?
The same loss cannot be compensated twice. Losses proven separately as arising beyond the return of the title must be distinguished from each other.
Sources and legal bases
- Law No. 4721, Turkish Civil Code (4721 sayılı Türk Medeni Kanunu), in particular Articles 3, 640, 702, 1007 and 1023–1025.
- Court of Cassation, 1st Civil Chamber (Yargıtay 1. Hukuk Dairesi), March 10, 2016, E.2015/7100, K.2016/2940, full published text of the decision, as reproduced by Adıyaman & Severcan Law Office.
- Law No. 6098, Turkish Code of Obligations (6098 sayılı Türk Borçlar Kanunu), in particular Articles 40–48, 49, 72, 74, 77–82 and 504–508.
- Law No. 6100, Code of Civil Procedure (6100 sayılı Hukuk Muhakemeleri Kanunu), in particular Articles 2, 12, 111, 125, 165, 189–211, 219–220, 266–281, 345, 361, 367 and 389–397.
- Law No. 1512, Notaries Act (1512 sayılı Noterlik Kanunu), Article 162.