If the contractor fails to deliver the immovable property within the period set in the contract, the landowner or home buyer may, where the conditions are met, have recourse to delay damages, specific performance, completion of incomplete work, elective rights concerning defective work and options for ending the contract. However, which right arises depends first on which relationship was formed: a construction contract in return for land share, a contract for work or a pre-paid housing sale to a consumer. Whether delivery has taken place, whether a formal notice is required, the relationship between loss of rent and the contractual penalty, the level of completion of the building and the transfers of title must be examined together. In particular, the unification-of-case-law decision of May 16, 2025 is decisive in assessing the position of third parties in good faith who acquired immovable property from the contractor.
The first issue determining the rights arising from the contractor's late delivery is the type of contract
In construction disputes, the statement “the contractor did not deliver the home” is not enough on its own to describe the legal relationship. The landowner may have undertaken to transfer part of the property to the contractor; a person may be having a building constructed on their own land in return for payment; or a consumer may have bought from a company a home that has not yet been built. The provisions on delivery, form, defects, the forum to apply to and time limits differ in these relationships. A single contract may also contain more than one element.
| Legal relationship | Principal performance | Main areas of review |
|---|---|---|
| Construction contract in return for land share (in return for flats) | The contractor builds the structure and delivers the agreed independent units to the landowner; the landowner transfers the agreed shares | Official form, mutual performances, delivery, construction level, transfer of title, third parties |
| Contract for work/construction contract for a price | The contractor creates the agreed structure or work in return for a price | TBK Article 470 et seq.; performance, defects, delivery, price and damages |
| Pre-paid housing sale to a consumer | The consumer pays the price of the home in advance; the seller transfers or delivers the home | Law No. 6502, official form of the sale, consumer-specific delivery and application rules |
A construction contract in return for land share is essentially a mixed contract combining an obligation to create a work with an obligation to transfer immovable property. For this reason, the problem of official form regarding the part involving the transfer of the property or a promise to sell cannot be disregarded as it might be in an ordinary construction job. The contract executed by a notary in official form (düzenleme), the transfers of title, the powers of attorney and any later protocols must be examined together. The legal consequence of non-compliance with form and its connection with the principle of honesty and good faith (dürüstlük kuralı) may be discussed separately according to the level of performance actually achieved under the transaction. [1] [6]
The mutual obligations of the landowner and the contractor must be assessed separately from the contract that a third party who buys an independent unit from the contractor concludes with the seller. Not every claim the landowner has automatically belongs to the buyer, and not every right the buyer has under consumer law automatically belongs to the landowner.
How is the delivery date determined, and when is the property deemed delivered?
The start of the period in the contract, the delivery day and additional periods must be read together
In determining whether delivery is late, the date on the cover of the contract may not be sufficient on its own. Provisions such as “24 months from the contract,” “30 months from the permit date,” “18 months after the land is vacated” and “with an additional period of 30 days after the permit is obtained” produce different results. First, it is determined which event starts the period, on what date that event occurred and by what method the period is to be calculated.
The annexes to the contract, the technical specifications, the land delivery record, the construction permit, the alteration permit, the phased delivery schedule, supplementary protocols and correspondence between the parties are integral parts of this calculation. The form and parties of any later-signed document alleged to have changed the period must also be checked. The claim that “the contractor is three years late” does not turn into a sound litigation calculation unless the starting date and the valid additional periods are established.
Handing over the keys, actual use, registration of title and the occupancy permit are not the same event
The occupancy permit (iskân), registration of servitude of floor ownership (kat irtifakı) or condominium ownership, handing over the keys to the independent unit and delivery in an actually habitable condition are different legal facts. If the construction contract in return for land share expressly provides for the performance “turnkey, with the occupancy permit obtained, common areas completed and ready for use,” the handing over of keys alone may not lead to the conclusion that the entire obligation has been performed. On the other hand, which party was responsible for obtaining the occupancy permit, or how this was agreed, must also be examined. [3]
Actual use of the home may, in some disputes, be regarded as evidence that delivery took place; but beginning to use it does not automatically mean acceptance of all deficiencies and waiver of all rights. Site records, utility meter subscriptions, habitability of the independent unit, delivery correspondence and special terms of the contract are assessed together.
In pre-paid housing sales, by contrast, the statutory method of delivery is regulated separately. According to the guide of the Ministry of Trade (Ticaret Bakanlığı) dated March 5, 2026, the handing over of keys alone does not by itself show that the official form of delivery provided for in the legislation has taken place for the consumer. [10]
Partial delivery, deficiencies in common areas and independent units completed on different dates
In multi-block projects, some independent units may have been delivered while others have not been completed. Deficiencies in stairs, elevators, fire safety, waterproofing, landscaping, parking and other common areas may affect the discussion of delivery in accordance with the contract. The legal status of each independent unit, the possibility of using it and any phased delivery clause must be determined separately. Using a single “delivered/not delivered” date for the entire project is not correct in every file.
At what point does the contractor fall into default: is a formal notice mandatory?
Under TBK Article 117, the debtor of a debt that has fallen due is, as a rule, placed in default by the creditor's formal notice (ihtar). However, if the parties have jointly set the performance date, or if a date to be determined in the manner provided by law has been agreed, the passing of that date may result in default without formal notice. The idea that a notarized formal notice is always required for every delay is wrong; likewise, it cannot be said that every expression of a delivery date makes a formal notice unnecessary. [1]
Particularly in contracts where the start of the period is tied to the construction permit or to delivery of the land, it must be examined whether that event has occurred. The reasonable additional period after default under TBK Article 123 must not be confused with the formal notice placing the debtor in default under TBK Article 117. A debtor's falling into default without formal notice does not mean that the reasonable additional period required for rescission of the contract is unnecessary in every case. TBK Article 124 separately regulates the cases that do not require an additional period.
A formal notice sent through a notary, even when not mandatory, is a strong tool for proving that the delay was notified, which performance was requested, that documents were requested and that certain rights were reserved. On the other hand, an incorrect delivery date in the notice or election statements inconsistent with substantive law may later be used against the sender. For this reason, when preparing the notice, the land registry and permit records and all protocols annexed to the contract must be compared.
Important distinction: The default date arising from delivery of the construction and the date from which interest runs on a calculated monetary claim are different issues. In the decision of the 6th Civil Chamber of the Court of Cassation (Yargıtay 6. Hukuk Dairesi) dated February 16, 2023, E. 2022/597, K. 2023/619, the start of interest was assessed separately for the amounts sued for and the amounts increased by amendment (ıslah) in a partial action. [2]
Related articles: The Creditor's Elective Rights on the Debtor's Default: TBK 125
Do force majeure, permit problems or the landowner's conduct extend the delivery period?
Earthquakes, serious administrative obstacles, failure of the competent authorities to act, unforeseeable extraordinary events, or the allegation that the landowner delayed the permit, the power of attorney, vacating of the property or the phased title transfers under the contract must be assessed in each specific case. A force majeure or adaptation defense is not accepted automatically merely because the event exists.
The contractor must explain, with evidence, when the event began, which work it actually prevented and for how long, whether there was an obstacle that could not be overcome by its own organization, whether it fulfilled its notification obligations and the causal link between the delay and the event. Likewise, the landowner must show with concrete records that it performed its contractual obligation on time or that the delay attributed to it did not actually prevent delivery. Seasonal conditions, cost increases, insufficient financing or general adverse market conditions are not by themselves an automatic extension of time.
The review should not aim only to exclude the contractor's defense: failure to obtain the agreement of the landowners, changes in zoning status, a legal obstacle affecting the land to be delivered and the order of performance of mutual obligations may also change the actual delivery date.
Under what conditions can completion of the construction and delay damages be claimed?
TBK Article 118 provides that a debtor in default is liable to compensate the damage arising from late performance unless it proves that it bears no fault for the default. Under TBK Article 125/1, a creditor for whom the conditions are met may claim performance of the contract together with damages arising from the delay. This is one of the basic grounds on which the landowner, while waiting for completion of the construction, can separately claim the economic consequences of the delay period. [1]
Delay damages may require concrete evidence as to the existence of the damage, the adequate causal link and the amount. The legal nature of a fixed-sum rent/indemnity clause agreed in advance in the contract is determined separately. The choice of specific performance + delay damages is not legally the same option as damages for non-performance claimed by abandoning performance, or as rescission of the contract. Failure to choose rights at the right time may lead to confusion of negative and positive damage calculations and to duplicate claims.
How are loss of rent or loss of use calculated?
The nature, location, intended use and delay periods of the apartments and commercial units agreed to be left to the landowner are determined. If the contract sets a fixed monthly amount per independent unit or for the project as a whole, the scope and legal nature of this clause are examined. Fixed rent compensation set in the contract is not automatically converted every year into the current market rate without a separate agreement or legal basis. The decision of the 15th Civil Chamber of the Court of Cassation (Yargıtay 15. Hukuk Dairesi) dated January 19, 2012, E. 2011/5439, K. 2012/156 is significant for the specific dispute in which the fixed monthly amount was agreed in the contract. [9]
Where the contract contains no express amount, the market rental values of similar independent units in the relevant periods, comparable contracts, the physical condition of the property and its capacity for use may be assessed by a court-appointed expert. For the start and end of the calculation, actual delivery, acceptance and contractual obligations are taken into account for each apartment. Compensation is not calculated simply by the formula “months of delay x rent demanded today”; the conditions of each period and the concrete evidence matter.
For a landowner living in rented accommodation, rent paid, moving costs or expenses arising from renting another home may also be discussed. However, it is not possible to compensate the same economic loss for the same period twice. Actual expenses must be documented and their relationship with the contractual loss of rent must be discussed. Where loss of income is claimed for commercial units planned for business use, speculative gain must be distinguished from provable loss of profit.
End of the delay period and acceptance of delivery with a reservation of rights (ihtirazi kayıt)
The date on which delivery in accordance with the contract and in usable condition took place may be the last day of the delay calculation; however, rights concerning incomplete or defective work may be separately reserved. The delivery record should clearly show the date, the number of keys, photographs, incomplete/defective work, the documents delivered and the reservation of rights. The effect of delivery without reservation on the delay penalty and its effect on delay damages already accrued may not be the same. This difference is explained separately below.
Can a delay penalty and rent compensation be claimed together?
Delay damages, a contractual penalty and a rescission penalty are different legal institutions. The words “penalty clause,” “delay penalty,” “rent assistance” or “monthly delay charge” do not on their own settle the nature of the clause. The judge assesses the intention of the parties and the event to which the payment is tied from the contract as a whole.
Under TBK Article 179, an alternative penalty tied to the debt not being performed at all or not being performed properly is distinguished from a cumulative penalty (ifaya ekli ceza) tied to the debt not being performed at the agreed time or place. With regard to the cumulative penalty, the creditor's express waiver of its right or unreserved acceptance of performance is of separate importance. TBK Article 180 regulates the situation where the damage exceeds the penalty amount; TBK Article 182 regulates the conditions of the penalty and the assessment of excessiveness. [1]
| Claim | Basis and nature | Critical check |
|---|---|---|
| Rent/loss-of-use compensation arising from delay | Damage arising from breach of contract and default, or a contractual fixed-sum indemnity | Nature as damage/fee, period, fault and delivery date |
| Cumulative delay penalty | Contractual penalty tied to delay | TBK Article 179/2, reservation at the time of acceptance, contract terms |
| Alternative penalty | Penalty tied to the debt not being performed at all or not properly | Choice between the principal performance and the penalty, and the specific clause |
| Rescission penalty | Penalty tied to the right to end the contract | Which party is given the right to withdraw, and on what condition |
In the decision of the 15th Civil Chamber of the Court of Cassation dated April 19, 2021, E. 2020/2403, K. 2021/1785, the monthly delay compensation in the contract was assessed as being in the nature of fixed-sum rent compensation; it was stated that the same loss of rent could not be awarded a second time and that the other penalty regulated in the contract was, by its nature, a rescission penalty. [3]
In the decision of the 15th Civil Chamber of the Court of Cassation dated July 2, 2018, E. 2018/979, K. 2018/2795, by contrast, the importance of the claim for the delay penalty being expressly preserved in the contract despite termination was discussed, but accepting all penalty claims of different types together was not considered appropriate. [8]
The consequence is this: the fact that two payment headings are written in the contract does not mean that they can be collected together unconditionally and in their full amounts. On the other hand, clauses that genuinely regulate independent losses and different breaches of obligation are not automatically void merely because they appear in the same contract. In litigation, the claim items must be structured by separating overlapping and non-overlapping losses.
Which rights are at risk if no reservation is made at delivery?
Unless there is a valid arrangement to the contrary between the parties, unreserved acceptance of performance may be important with regard to the cumulative delay penalty under TBK Article 179/2. For this reason, accepting delivery while reserving accrued delay penalties and other claims in the delivery record is a protective method. Nevertheless, whether a mere general statement that “all my rights are reserved” is sufficient in every case must be assessed together with the specific contract and the delivery process. It cannot be said, however, that a claim for damages already accrued due to delay is automatically subject to the same rule.
Why are incomplete work, defective work and non-delivery assessed separately?
Incomplete work may be examined as the failure to carry out at all a construction item or performance undertaken in the contract and technical specifications; defective work as the nonconformity of the work produced with the agreed qualities, the accepted technical and professional standards (fen ve sanat kuralları) or the intended use. Complete failure of delivery in accordance with the contract, partial performance and defective delivery must not be confused. A missing door handle or cupboard alone does not automatically render the entire building “undelivered”; a serious deficiency in the load-bearing system, insulation or fire safety, by contrast, may substantially affect usability and delivery in accordance with the contract.
In specific disputes, examples of incomplete work include the elevator provided for in the contract not being installed at all, or the parking area or common-area installations not being completed; examples of defective work include leaking insulation, the wrong class of materials, dimensions contrary to the project or faulty mechanical installations. Which deficiency counts as a defect and which as incomplete performance requires technical determination.
TBK Articles 473, 474–477 and elective rights against defects
TBK Article 473 regulates situations in which the contractor does not start the work on time, delays the work in breach of the contract or it becomes clearly apparent that it will be unable to complete the work; the second paragraph of the same article regulates the case in which it becomes clearly apparent during the work that the work will be produced defectively or in breach of the contract. Thus the project owner is not always obliged to wait passively for the work to be completed. However, which claim can be asserted and when is determined according to the conditions of the articles. [1]
With regard to defects after delivery, the project owner's inspection of the work, timely notice of defects, the distinction between apparent and latent defects and the consequences of acceptance are important. Under TBK Article 475, where the conditions are met, options such as rescission of the contract, price reduction or free repair may come into play. Price reduction may require one technical assessment in a typical contract for work where a monetary price is paid, and a different one in a mixed contract where the counter-performance is the transfer of a land share.
The relationship between elective rights and damages claims for defective work must be examined according to the nature of the defect, fault, damage and the terms of the contract. Standing to sue and the scope of calculation may differ between claims for the cost of a defect arising in an apartment left to the landowner and claims covering the construction items, left to the contractor but not built in accordance with the contract, throughout the entire project.
Why are the day the construction defect appeared and the date of notice important?
For defects visible at delivery and latent defects that appear later, inspection and notification obligations may produce different results. Under TBK Article 477, express or tacit acceptance of the work affects the contractor's liability; however, liability may continue for defects intentionally concealed by the contractor that could not be identified during a proper inspection. Notice and the statute of limitations are separate checks. [1]
For this reason, the date on which the landowner or buyer learned of the defect, the photographs taken, technical inspection records, repair requests, written replies and problems that reappear after repair must be kept together. The defense that “the building has already been delivered, nothing more can be claimed” is not correct in every case.
Substitute performance: Is it possible to have the construction completed by another contractor?
Under TBK Article 113, if an obligation to act is not performed by the debtor, the creditor may request authorization to have the performance carried out by itself or by another person at the debtor's expense. In construction disputes this is called substitute performance (nama ifa). The appropriateness of the claim is assessed together with whether the contract continues, whether the work to be completed can be determined, the technical condition of the work and the rights of third parties. [1]
At the first stage, the current physical condition of the work, the incomplete and defective construction items, how they will be remedied and the cost of remedying them must be established through an examination by a technical court-appointed expert. Then the authorization and the method of financing, advances/expenses, the status of title and securities, and the claims to be asserted for collection are structured specifically for the file. It cannot be concluded that every landowner may sell the independent units allocated to the contractor on its own, without court permission and an assessment under property law.
The decision of the 15th Civil Chamber of the Court of Cassation dated June 16, 2021, E. 2020/3018, K. 2021/2786 concerns a dispute that had to be examined as a whole with regard to substitute performance claims, remedying incomplete and defective work, the contractor's title registration claims and the reciprocal performance relationship. The decision does not turn a substitute performance claim into an automatic right in all circumstances; it shows the importance of assessing the claims and amounts together. [5]
If the contractor does not deliver, when do rescission or termination of the contract come into play?
In the face of the contractor's serious default or fundamental breach of contract, claiming only loss of rent may not always be sufficient. By examining the conditions of default, additional period and notice required under TBK Articles 123–125, options such as rescission of the contract or abandoning performance and claiming damages may be assessed. However, not every construction contract in return for land share can be deemed to have been eliminated retroactively, together with its title consequences, by a unilateral notice simply because there is late delivery. The nature of the official contract, the intention of the parties, the level of construction and third parties' rights in the land registry affect the need for a determination or an action.
Retroactive termination and restitution of performances
In the traditional approach of the Court of Cassation, the retroactive consequences of rescission, the parties' reclaiming of what they previously gave and the legal status of the settlement of the construction are important. Depending on the nature of the construction work done and the value it added to the assets, mutual restitution or monetary settlement calculations may come into play. It cannot be said that every title transferred in the contractor's name will automatically revert; in particular, the good-faith acquisition of rights in rem by third parties, explained below, must be taken into account.
Prospective termination and completion rate
When the construction has reached a very advanced stage, it may be discussed whether prospective termination is more appropriate, taking into account the performances the parties have rendered so far and the economic purpose of the contract. The decision of the Grand General Assembly for Unification of Case Law of the Court of Cassation (Yargıtay İçtihatları Birleştirme Büyük Genel Kurulu) dated January 25, 1984, E. 1983/3, K. 1984/1 and the practice based on this decision are among the classic foundations of this discussion. [6] [12]
Completion of the construction at 90% or any other fixed rate is not an automatic rule of prospective termination in every file. Which construction items the completion rate is calculated on, the occupancy permit, whether the independent units actually function, the cost of the remaining work, the fault and performances of the parties and the equity requirements of the specific case are examined together. The independent units to which the contractor will become entitled and the landowner's opposing claims cannot be considered independently of each other in the settlement.
The distinction between positive damage and negative damage
Positive damage (expectation interest) is a concept relating to the economic position the creditor would be in if the contract had been properly performed; negative damage (reliance interest) relates to the expenses and losses that would not have arisen if the contract had not been relied upon. They do not allow the same economic loss to be claimed under two different names.
The options of continuing the contract, abandoning performance or rescission lead to different damage regimes. Even in the case of rescission, it cannot be said that “no damages can be claimed any longer” without taking into account the special contract clauses and the specific case. In the decision of the 15th Civil Chamber of the Court of Cassation dated July 2, 2018, the separate assessment of the effect of an express contractual provision on the delay penalty in the event of termination illustrates this distinction. [8]
Related articles: Termination of a Construction Contract in Return for Land Share and Return of Title Deeds: Rights of the Landowner
Cancellation of title, sale to a third party and mortgage: what did the 2025 unification-of-case-law decision change?
One of the most serious legal risks in construction disputes is the landowner's belief that, after rescinding the contract, it can automatically extinguish the rights of third parties who bought property from the contractor. This issue can no longer be assessed without taking into account the unification-of-case-law decision dated May 16, 2025.
Decision E. 2024/1, K. 2025/2 of the Grand General Assembly for Unification of Case Law of the Court of Cassation was published in the Official Gazette (Resmî Gazete) dated July 18, 2025, No. 32959. According to the decision, after a construction contract in return for land share becomes invalid or ends retroactively, the claims of third parties who acquired ownership of property or a right in rem such as a mortgage from the contractor in reliance on the land registry to have acted in good faith must be examined. If good faith existed at the time of acquisition in the specific case, the acquisition may be protected under TMK Article 1023; if bad faith is established, a different result may follow. [6]
This decision does not mean that the contractor did not act in breach of contract toward the landowner or that the landowner's rights to damages have ended. What has changed is that the legal position of a third party who acquired a right in rem from the contractor is not automatically disregarded solely on the ground of “advance title” (avans tapu). The review covers the nature and date of the specific title transfer, the third party's state of knowledge and the acquisition of the right in rem. The issue concerning a person who did not acquire a right in the land registry but only took an assignment of a contractual claim must be assessed separately.
The existence of good faith is related to the statutory presumption; however, the parties' allegations, land registry records, project annotations, contracts, transfer prices, sale dates, encumbrances in the land registry, the actual state of construction and the connections between the buyer and the contractor become important. The decision of the 6th Civil Chamber of the Court of Cassation dated September 9, 2025, E. 2025/2010, K. 2025/2806 is also connected with the new unification-of-case-law approach. [7]
In the landowner's litigation strategy, not only the termination claim against the contractor but also the joinder of the correct parties in the action for cancellation and re-registration of title, the nature of third parties' rights in rem, the conditions for an interim injunction and proportionate measures to prevent new dispositions during the proceedings must be assessed separately. Requesting an interim injunction does not mean that the request will be granted automatically or that it will definitively extinguish the third party's right.
For current doctrinal assessments in this area, the 2026 study by İpek Betül Aldemir Toprak published in the Hacettepe University Faculty of Law Journal (Hacettepe Hukuk Fakültesi Dergisi) offers a detailed comparison regarding the principle of reliance on the land registry and the legal position of the third party. [11]
Related articles: Can Title Obtained from a Contractor Be Cancelled? The Third Party's Good Faith and the Current Approach of the Court of Cassation
Why do the rights of a consumer who buys a home in a construction project differ from those of the landowner?
The legal position of a landowner who concludes a construction contract in return for flats with the contractor is not the same as that of a consumer who buys a home in the project built by the contractor. Where the home is sold to the consumer against advance payment, the provisions of Law No. 6502 on Consumer Protection concerning pre-paid housing sales and the related regulation may come into play. This distinction is important with regard to form, the pre-contractual information to be provided to the consumer, delivery of the home, withdrawal, rescission of the contract and dispute resolution routes.
The guide of the Ministry of Trade dated March 5, 2026 states that in a pre-paid housing sale the delivery period cannot exceed 48 months from the date of the contract and that, if the parties have agreed a shorter period, the seller is bound by that period. This 48-month period is not a general delivery period applicable to all construction contracts in return for land share. [10]
The same guide explains that pre-paid housing sales are subject to official form; that, under certain conditions, the consumer has the options of a 14-day withdrawal and of rescission of the contract within up to 24 months; that there is a cost-free right of rescission in certain cases where the seller has not fulfilled its statutory obligations; and how official delivery is to take place. The applicability of these rights to the specific transaction must be separately verified with regard to dates, the form of the contract and the relevant transitional provisions.
For the consumer, non-delivery or defects of the home, and the claims arising from the contract for work that the landowner asserts against the contractor, must not be lumped together as regards the court, mediation and the statute of limitations. The status of the person who signed the contract is the starting point for the correct litigation strategy.
Related articles: What to Do If the Contractor Does Not Hand Over the Title Deed? Registration and Compensation for an Apartment Bought from the Contractor
Which documents should be preserved and which steps taken before filing an action?
Delivery, delay, the level of construction and technical defects are often facts that change over time. Later completion of the construction or repair of the defect may make it harder to prove the earlier state of the dispute. For this reason, evidence must be kept in a way that establishes its relationship to the subject and the date.
| Document / record | Function in the legal review |
|---|---|
| Main contract executed by a notary, its annexes, technical specifications, revision protocols | Scope of the work, delivery period, place of performance, contractual penalty, obligations of the parties |
| Land registry records, encumbrances and share transfer history | Land ownership, rights of the contractor and third parties, annotations and mortgages |
| Construction permit, alteration permit, occupancy permit, municipal records | Start of the period, legal/technical completion, allegations of administrative obstacles |
| Site logbooks, progress payments (hakediş), work schedule, building inspection reports | Actual progress, incomplete work and causes of the delay |
| Delivery record, key and subscription records | Time of delivery, usability and reservation status |
| Dated photographs, video, on-site examination and expert report | Nature and quantity of incomplete/defective work, completion rate |
| Notarized formal notice, e-mail, messages and meeting minutes | Notification, claims, extension-of-time defenses and statements of the parties |
| Comparable lease agreements, payment and rent documents | Calculation of compensation and loss of rent for the relevant periods |
When does preservation of evidence become important?
Within the framework of HMK Article 400 et seq., where the conditions are met, requesting preservation of evidence before filing an action may come into play. In a technical determination with a court-appointed expert, not only a general completion percentage but also the current state, incomplete work, defective construction items, repair method, cost, deliverability and disputed event dates must be determined on a block, floor and independent unit basis. Obtaining the land registry and zoning files, and why technical reports of different dates confirm or contradict each other, must also be examined.
Obtaining a private expert report or technical opinion by the parties may also be considered. The purpose of technical reports is not to make the legal characterization in place of the judge, but to set out objective information enabling the court to review the breach of contract.
Questions to be answered in the preliminary review
- What type of contract is it legally, and who are its parties?
- Is there a problem regarding official form and, if any, the annotation in the land registry?
- From which event is the delivery date calculated; is the additional period valid?
- To which dates do actual delivery, the occupancy permit, registration of title and completion of the common areas each correspond?
- Which conduct of the contractor and of the landowner contributed to the delay of the construction?
- Do the rent compensation and contractual penalties claimed concern the same loss?
- Has a separate technical calculation of the incomplete/defective work been made?
- Is there a transfer, mortgage or other encumbrance in the land registry in favor of the contractor or third parties?
- Will the principal claim be performance of the contract, substitute performance, abandonment of performance or rescission/termination?
- On which facts do the start of the statute of limitations for the claims, the start of interest and the competent court depend?
Statute of limitations and litigation time limits: can a single period be applied to all claims?
No. For each of the claims under a contract for work arising from a construction contract in return for land share, rights arising from defects, pre-paid housing sales and claims based on the land registry, the legal nature, the applicable statutory provision, the start of the period and possible exceptions must be determined separately. Knowing the date of late delivery does not show that every claim begins to become time-barred on the same day.
TBK Article 147/6 provides for a five-year statute of limitations for claims arising from a contract for work, other than where the contractor has failed to perform its obligations at all or properly through gross fault. TBK Article 478, on the other hand, provides, for actions concerning defective work, a statute of limitations regime of, as a rule, five years from delivery for immovable structures and twenty years in the case of the contractor's gross fault. The two articles must not be applied to the same action without scrutiny; defect, gross fault, delivery and the legal basis of the claim must be distinguished. [1]
The start of the statute of limitations for delay damages, by contrast, may be a matter of serious dispute in specific cases. In the decision of the 6th Civil Chamber of the Court of Cassation dated June 24, 2024, E. 2022/4125, K. 2024/2247, the failure to examine the statute of limitations defense was made a ground for reversal; in the dissenting opinion, a different approach to the start of the period for the delay claim of a creditor awaiting performance was explained. In this decision, the majority reasoning and the dissenting opinion cannot be substituted for one another. [4]
When calculating the statute of limitations, the contract date, the delivery date, the events on which the damage and the maturity of the claim are based, earlier actions filed and enforcement proceedings, as well as circumstances that suspend or interrupt the statute of limitations, must be investigated separately. Generalizations such as that no period runs at all because delivery has not taken place, or that all periods are suspended because a formal notice was sent, must be avoided.
How are the competent court, mediation and protective measures determined?
In construction disputes, the competent court is not determined merely by saying “the subject is immovable property.” The status of the landowner and the contractor, the relationship's connection with commercial enterprises, the contractual nature of the dispute, whether the buyer is a consumer and the legal protection sought must be examined. Depending on the case, the civil court of first instance (asliye hukuk mahkemesi), the commercial court of first instance (asliye ticaret mahkemesi) or the consumer court (tüketici mahkemesi) may have subject-matter jurisdiction. The rules of exclusive jurisdiction connected with the location of the property for a claim for cancellation and re-registration of title are also observed separately.
Whether mediation is a condition precedent to litigation also depends on the nature of the claim and the parties. A single rule that “mediation is mandatory first” cannot be asserted for all of the following: a commercial monetary claim or claim for damages, a consumer dispute, a land registry action relating to a right in rem and claims for rescission/settlement of the contract. Mandatory mediation whose conditions are met must be investigated before the action; for the claims to which it does not apply, the reason why they fall outside its scope must be clearly determined.
If, in the specific case, there is a risk of the title right being transferred to someone else, routes such as an interim injunction, a precautionary attachment where its conditions are met for securing a monetary claim, and preservation of evidence to preserve the technical situation may be considered. However, the conditions for these applications differ from one another. The subject of the dispute, security, prima facie proof, third parties' right of ownership and proportionality must be examined.
How should the mutual defenses of the landowner and the contractor be assessed?
A strong legal assessment is not complete merely by asserting that the contractor was late. The contract-based defenses that the contractor may raise, namely that the land was not delivered, the title stage did not take place, the construction permit could not be obtained, the scope of the contract changed, an extension of time was accepted, delivery was made, notice of defects was late, the claim is time-barred, must be examined one by one. The landowner, too, must assess these defenses with dated official records, delivery records, contract provisions and correspondence.
On the other hand, the contractor's statements such as “I handed over the keys,” “the construction is ninety percent finished,” “market conditions were unfavorable” or “the occupancy permit was the landowner's responsibility” may not on their own eliminate all liability. Which obligation the contract places on whom, the order of performances and the causation of the specific delay must be established. The landowner's performance of its own obligation and the contractor's delivery in accordance with the contract are assessed together within the reciprocal relationship of obligations.
What principles do current Court of Cassation decisions set out for the specific case?
The decisions below are not general commands that on their own determine the outcome of every dispute. They must be read together with the specific facts, the contract clauses and the outcomes of the judgments.
| Decision | Legal issue addressed | Significance for this article |
|---|---|---|
| Court of Cassation, 15th Civil Chamber, April 19, 2021, E. 2020/2403, K. 2021/1785 | Fixed-sum delay/rent compensation and a separate contractual penalty | The same rent loss cannot be compensated twice; nature of the rescission penalty |
| Court of Cassation, 6th Civil Chamber, February 16, 2023, E. 2022/597, K. 2023/619 | Delay claim and start of interest in a partial action | Separating the interest dates for the amounts sued for and the amounts increased by amendment |
| Court of Cassation, 6th Civil Chamber, June 24, 2024, E. 2022/4125, K. 2024/2247 | Delay claim and statute of limitations | Mandatory examination of the statute of limitations defense; distinction of the dissenting opinion |
| Court of Cassation, 15th Civil Chamber, June 16, 2021, E. 2020/3018, K. 2021/2786 | Substitute performance, incomplete/defective work and title registration | Assessing the completion cost together with reciprocal performance and title claims |
| Court of Cassation, Grand General Assembly for Unification of Case Law, May 16, 2025, E. 2024/1, K. 2025/2 | Good faith of a third party who acquired a right in rem from the contractor | Examination of the claim of reliance on the land registry and the ownership/mortgage right that may be protected |
| Court of Cassation, 15th Civil Chamber, July 2, 2018, E. 2018/979, K. 2018/2795 | Relationship between termination of the contract and the delay and alternative penalties | Interpreting penalty claims after termination in light of the contract as a whole |
When using the decisions, changes of court and chamber, the legal period in force at the time of the events, whether the decision resulted in reversal or affirmance, and any dissenting opinion must be stated separately. The old approach prior to the new unification-of-case-law decision, that “the rights of all third parties who acquired from the contractor are automatically cancelled,” must not be presented as a current rule.
Conclusion: In a late delivery action, the right claim, the right delivery date and the right evidence are decisive
The contractor's failure to deliver on time does not mean that the landowner can claim only rent compensation; likewise, it does not mean that all claims for damages, penalties and termination can be exercised together unconditionally. Completion of the construction in accordance with the contract, determination of actual and legal delivery, calculation of the delay period, remedying of incomplete and defective work, substitute performance, and the options of rescission or termination are interconnected headings with different legal conditions.
In light of the title transfers made in construction in return for land share and, in particular, the unification-of-case-law decision dated May 16, 2025, third parties' rights in rem must also be investigated from the outset. Unless the contract, permit, title, technical specifications, delivery record, comparable rents and pre-action preservation of evidence are addressed together, it may not be possible to benefit from a justified claim because of procedural or evidentiary deficiencies. The litigation strategy should be structured after the consistency of the claims with one another, the starting points of the periods and the damage calculation have been completed.
Frequently Asked Questions
The contractor did not deliver my apartment on time; what should I do first?
Determine the delivery date from the main contract and later-signed protocols; document the land registry, permits, delivery correspondence and the actual state of construction. Determine according to the contract whether a formal notice or a reasonable additional period is required. A legal review should be carried out without delay because of litigation time limits that may lead to loss of rights.
If the contract does not mention rent compensation, can I still claim loss of rent?
If the conditions are met, yes. Under TBK Articles 118 and 125, delay damages arising from default may be claimed. However, the start, the end, the amount of damage and fault/causation must be assessed. The absence of a fixed amount in the contract does not in every case mean automatic collection of market rent.
If I continue to live in rented accommodation, can I recover the rent I pay together with the loss of rent?
Different items of provable damage may be discussed; but the same economic loss cannot be compensated twice. Documents on rent paid, the use of the independent unit, the contract and the effect of the damage items on each other must be examined.
Can a delay penalty and rent compensation be claimed together?
It depends on the nature of the contract clauses and on whether a claim is made twice for the same loss. A cumulative penalty, an alternative penalty, a rescission penalty and fixed-sum rent compensation are not the same. TBK Articles 179–182 and the relevant Court of Cassation decisions must be taken into account.
Is taking delivery of the apartment with the keys a waiver of all rights?
No, not always. Nevertheless, unreserved acceptance may have important legal consequences, particularly with regard to the cumulative penalty and apparent defects. The delivery record should clearly show deficiencies, defects, the date and the reserved rights.
If the occupancy permit has not been obtained, is the apartment deemed delivered?
There is no single answer. To which party the contract assigns the occupancy permit and the handing over of keys, the state of use of the property, the delivery document and the type of contract are assessed together. In pre-paid housing sales, there are special official delivery conditions for the consumer.
If the construction is left half-finished, can I obtain court permission and have another company complete it?
A substitute performance claim whose conditions are met under TBK Article 113 is possible. However, the scope and cost of the incomplete work, authorization by the court, the continuation of the contract and title ownership must be examined separately.
If the contractor has completed ninety percent, is the contract necessarily terminated prospectively?
No. The completion rate of the construction is an important datum; but on its own it is not a definitive threshold that resolves every file. The usability of the buildings, the nature of the remaining work, the balance of performances, the conduct of the parties and equity are assessed together.
If the contractor sold an apartment to a third party, can I get the title back?
It depends on the nature of the transaction and on whether the third party was in good faith when acquiring the right in rem. Under the Court of Cassation unification-of-case-law decision dated May 16, 2025, the good-faith defense must be examined; the title is not automatically cancelled in every case.
What is the statutory maximum period for delivery in a pre-paid housing sale?
According to the guide of the Ministry of Trade dated March 5, 2026, the maximum delivery period for this type of contract is 48 months from the contract date; if the parties set a shorter period, the seller must comply with it. This rule does not generally apply to construction contracts in return for land share.
How many years is the statute of limitations in a late delivery and defective work action?
There is no single period. Depending on the basis of the claim, TBK Article 147/6, TBK Article 478 for defective work, as well as the nature of the contract and other relevant provisions become important. For the delay claim, the moment at which the period begins must be examined particularly carefully in the specific dispute.
Is it mandatory to have evidence preserved before filing an action?
It is not mandatory in every action. However, preservation of evidence under HMK Article 400 et seq. may be important with regard to the level of construction, the nature of incomplete and defective work, a technical situation that may change through later construction work and the damage that is the subject of the action.
Sources and legal bases
- Law No. 6098, Turkish Code of Obligations; in particular Articles 112–125, 147/6, 179–182, 470, 473–479. Text of the law (TBMM). Whether the relevant provisions were in force on the date of the specific dispute should be checked separately.
- Court of Cassation, 6th Civil Chamber, February 16, 2023, E. 2022/597, K. 2023/619. Full text of the decision.
- Court of Cassation, 15th Civil Chamber, April 19, 2021, E. 2020/2403, K. 2021/1785. Full text of the decision.
- Court of Cassation, 6th Civil Chamber, June 24, 2024, E. 2022/4125, K. 2024/2247 (the majority reasoning and the dissenting opinion were examined together). Full text of the decision.
- Court of Cassation, 15th Civil Chamber, June 16, 2021, E. 2020/3018, K. 2021/2786. Full text of the decision.
- Court of Cassation, Grand General Assembly for Unification of Case Law, May 16, 2025, E. 2024/1, K. 2025/2, Official Gazette, July 18, 2025, No. 32959; also discussions connected with the decision of the Grand General Assembly for Unification of Case Law of January 25, 1984, E. 1983/3, K. 1984/1. Full text of the decision of May 16, 2025.
- Court of Cassation, 6th Civil Chamber, September 9, 2025, E. 2025/2010, K. 2025/2806. Full text of the decision.
- Court of Cassation, 15th Civil Chamber, July 2, 2018, E. 2018/979, K. 2018/2795. Full text of the decision.
- Court of Cassation, 15th Civil Chamber, January 19, 2012, E. 2011/5439, K. 2012/156. Full text of the decision.
- Ministry of Trade of the Republic of Türkiye, General Directorate of Consumer Protection and Market Surveillance (Tüketicinin Korunması ve Piyasa Gözetimi Genel Müdürlüğü), “Information on Pre-Paid Housing Sale Contracts” (“Ön Ödemeli Konut Satış Sözleşmeleri Hakkında Bilgilendirme”), March 5, 2026. Official guide.
- Aldemir Toprak, İpek Betül, “Protection of Third Parties' Reliance on the Land Registry and of the Right of Ownership in Construction Contracts in Return for Land Share after the Court of Cassation's Unification-of-Case-Law Decision of May 16, 2025, E. 2024/1, K. 2025/2” (“Yargıtay’ın 16.05.2025 Tarih E.2024/1, K.2025/2 Sayılı İçtihadı Birleştirme Kararı Sonrasında Arsa Payı Karşılığı İnşaat Sözleşmelerinde Üçüncü Kişilerin Tapu Siciline Güveninin ve Mülkiyet Hakkının Korunması”), Hacettepe University Faculty of Law Journal, 16(2), 2026, pp. 43–72. DOI: 10.32957/hacettepehdf.1828120.
- Court of Cassation, 14th Civil Chamber (Yargıtay 14. Hukuk Dairesi), April 1, 2009, E. 2009/1031, K. 2009/4125 (assessment of retroactive/prospective termination and settlement). Full text of the decision.