Where what the parties state externally in a property transfer differs from their real common intention, simulation (muvazaa) may come into question. However, who objects to the apparent sale is decisive. The transacting person's own claim, the heir's claim of simulation by the deceased and an action brought by a creditor to collect a debt are not subject to the same rules of proof or the same legal consequence. [1, 2]
This article deals in particular with the claim of a party to the transaction that "we did not actually want a sale" or "we showed a sale but intended a gift." The existing guide on simulation by the deceased and title cancellation should be assessed separately for the specific dispute involving the removal of assets from heirs.
What Is Simulation, and How Is It Distinguished from a Low Price?
Under TBK Article 19, when the type and content of a contract are determined, the real and common intention of the parties is taken as the basis rather than the words used. Simulation is not merely one person's secret thought or a regret felt later. There must be an agreement between the parties that the apparent transaction does not reflect the real situation. [1]
A low price stated in the title deed, a sale price that was never paid, a transferee who is a close relative, or a seller who continues to use the property are facts that may be examined. However, none of them always produces the result of simulation on its own. Non-payment of the price may also occur in a genuine sale; for a low price, the conditions for laesio enormis (gabin) are examined separately. For a similar dispute, the article on unauthorized or irregular transfer of company property may also be reviewed.
Absolute and relative simulation
In absolute simulation, the legal result stated by the apparent transaction is not actually wanted. In relative simulation, by contrast, the apparent transaction conceals another real transaction behind it. Showing a sale in the title deed while actually intending a gift is an example of the second category. Besides the invalidity of the apparent transaction, the validity requirements of the hidden transaction are also examined.
The official form required for the transfer of immovable property is particularly important here. Proving the hidden transaction does not automatically satisfy all the form and validity requirements of that transaction. The fact that TBK Article 19 looks to real intention does not remove the official form requirement for a gift of immovable property. [1, 3]
Can a Party to the Transaction Rely on Its Own Simulation?
It is not right to regard a claim by a party to the transaction as entirely impossible. A party may also assert that the real common intention was different. However, which evidence it will rely on to prove this, and how the exercise of that right is viewed under the principle of good faith (dürüstlük kuralı) in TMK Article 2, are separately important. The one-sentence rule that "a person can never rely on his own simulation" confuses questions of proof with questions of honesty. [1, 2, 3]
The requirement of written evidence
Where there is a formal or written transaction between the parties, the claim that the apparent transaction does not reflect the truth is assessed together with the rules of proof against a written instrument (senede karşı ispat). A counter-document, a written agreement, an admission or other available legal means of proof may come into question. However, a statement by family members alone that "it was really a gift" is not sufficient in every case. [2]
The written evidence, initial evidence (delil başlangıcı) and exceptions under Articles 199–203 of Law No. 6100, Code of Civil Procedure (HMK), must be made concrete. Close kinship should not be treated as if it created automatic freedom to use witnesses against every written instrument. On the other hand, if a valid initial piece of evidence or another means of proof exists, that must also be examined.
Why did decision No. 2025/5756 result in dismissal?
In decision E.2025/311, K.2025/5756 of the 1st Civil Chamber of the Court of Cassation (Yargıtay 1. Hukuk Dairesi), dated December 8, 2025, a person who transferred the bare ownership of a property to grandchildren by showing a sale argued that the real purpose was a gift. The regional court of appeal treated the dispute as party simulation and, because the written proof was not established, upheld the dismissal. The Court of Cassation affirmed the decision. [4]
In the file, the defendants also argued that they could not rely on their own simulation. But every sentence of a defense is not a rule of law that the court applies to all events. When explaining this decision, the party's defense, the court's characterization and the result of the affirmance must be kept separate. The practical lesson is that the claim of a hidden gift and the ground for reversal raised afterwards must each be proven separately.
Why are party simulation and simulation by the deceased distinguished?
In simulation by the deceased, the particular types of apparent sales and hidden gifts made by the estate-leaver with the intention of removing assets from heirs are discussed. The heir making the claim is not in the same position as the transferor who was a party to the transaction. Relying on the right of succession affects the proof and the scope of the claim.
By contrast, where the owner, while alive, challenges a transaction he himself made, merely referring to a property that may later become part of an estate does not turn the case into simulation by the deceased. The expectation that children will become heirs in the future also does not create a right to intervene in every disposal by the living owner. Where incapacity, representation or another existing right is claimed, these are assessed on their own terms.
Not every apparent transaction made by the estate-leaver is simulation by the deceased. A genuine sale, an open gift, a fiduciary relationship and a transfer subject to abatement (tenkis) may lead to different legal consequences. Since the existing article on simulation by the deceased addresses these limits in detail, rather than reproducing the same content here, it is important to identify the correct type of action.
The boundary between fiduciary transfer and simulation
In a fiduciary transfer, the right may genuinely be meant to pass, with an obligation to return it under certain conditions. In simulation, the apparent transaction, or its nature as shown outwardly, does not reflect the real common intention. Therefore, the statement "I temporarily gave the title deed" does not mean simulation in every file.
If the return agreement creates an obligation to register on payment of a debt or on the occurrence of another purpose, the provisions on fiduciary transfer are examined. Written evidence, maturity and the limitation period take on different importance. A distinction must be drawn between invalidity from the beginning and breach of an obligation after a valid transfer.
| Question to ask | Possibility of simulation | Possibility of fiduciary transfer |
|---|---|---|
| Was the result of the transfer actually wanted? | The apparent result or nature was not actually wanted | Transfer of ownership was actually wanted |
| What does the request for return rely on? | Invalidity of the apparent transaction | Performance of the obligation to return |
| Which point in time matters? | The common intention at the time of the transaction | The agreement, the condition and the maturity of the obligation to return |
| What is the core evidentiary issue? | A common intention different from the apparent transaction | The return agreement and the fulfilment of the condition |
In a creditor's TBK Article 19 action, in whose name is the title registered?
A creditor may claim that the collection of its debt has been obstructed by a collusive transaction between the debtor and a third party. Here, a genuine debt, a loss and the link to the collusive transaction are examined. The aim is not always to register the property in the name of the creditor who brought the action; the authority to attach and sell in order to collect the debt may come into question. [5]
2026/932: certificate of insufficient assets and the distinction in the operative part
In decision E.2025/9160, K.2026/932 of the 12th Civil Chamber of the Court of Cassation (Yargıtay 12. Hukuk Dairesi), dated February 16, 2026, an action relying in the alternative on Articles 277 et seq. of the Enforcement and Bankruptcy Law (İİK) and on TBK Article 19 was examined. The chamber held that a simulation claim based on TBK Article 19 cannot be rejected solely for lack of a certificate of insufficient assets (aciz belgesi). It required the court first to examine whether the debt was real and then the other conditions, and it reversed the decision. It explained that if the claim is proven, the creditor may be granted attachment and sale authority by analogous application of Article 283/1 of the Enforcement and Bankruptcy Law. [5]
This decision does not mean that proof of creditor status is unnecessary. It also shows that the period and procedural requirements of an action for annulment of disposition under the Enforcement and Bankruptcy Law cannot be treated as identical to those of a general simulation action. The action against a creditor must be structured separately from the owner's claim to get back its own title.
Which evidence supports which claim?
First, the claimant's position in the transaction must be determined. The assessment of proof may differ for a party to the transaction, its legal successor, and a third party who objects on the basis of its own right. In particular, the right on which the heir relies must be stated clearly. Merely saying "I am an heir" does not by itself determine all the rules of proof.
| Evidence | Possible contribution | Limit to watch |
|---|---|---|
| Counter-document or written agreement | Reveals the real common intention | Signature, date, the property and its link to the transaction |
| Bank and payment records | Shows whether the price was actually paid | Non-payment alone is not simulation |
| Possession and use | The factual arrangement after the transfer | Use may continue under a lease, usufruct or permission |
| Witnesses | Agreements and conduct directly observed | Limits on proof by witness depending on the claimant's position |
| Correspondence | Shared purpose or explanation of return | Attribution, full context and lawful acquisition of the material |
Whether the sale price was returned to the transferor, or whether the same amount was sent back after an apparent payment, may be examined. However, the possibility that the money flow stems from another debt is also considered. Evidence must be read as a whole within the entire transaction relationship, not by selecting only the parts that support the claim.
Good faith of third parties and mortgages
A person who later acquires a right in rem on the basis of a registration created by a collusive transaction may come into consideration for protection under Article 1023 of the Turkish Civil Code (TMK). This person is not the same as the first buyer, who was a party to the apparent agreement. Whether the later person knew, or ought to have known, of the irregularity at the time of the transaction must be shown with separate evidence. [3]
For mortgages too, the transaction that created the mortgage, the right holder and the date of acquisition are examined. Cancelling a sale does not automatically extinguish every right in rem on the property. The defendant structure and the relief sought must be set up separately for each right whose cancellation is requested.
How are time limits, court and interim protection determined?
A claim of invalidity based on simulation is not the same as the one-year period for exercising the right that applies to fraud (aldatma). However, the mere use of the word simulation does not mean that every time-limit problem disappears. Pre-cadastral grounds, the protection of a later person, independent claims for a debt and the nature of the legal consequence sought are all examined. [1, 3]
In a title cancellation dispute based on the owner's right in rem, the ordinary court is the civil court of first instance (asliye hukuk mahkemesi), and the mandatory venue (kesin yetki) lies where the property is located. In a creditor's collection action, however, the consequences of an action concerning a right in rem do not apply automatically. The nature of the claim affects subject-matter jurisdiction, venue and the type of interim protection available. [2, 5]
Where the aim is to recover the title, an interim injunction (ihtiyati tedbir) against a repeat transfer may be considered. In a creditor's collection action, interim measures or precautionary attachment must be examined separately, according to the relevant type of action and current case law. It is not correct to use a single standard protection petition for all "simulation" actions.
Court fees (harç) and expenses are determined according to the value in dispute and the relief sought. In a judgment on a right in rem, finality and the accuracy of the current parcel details are important. The judgment under which a creditor obtains attachment and sale authority does not follow the same enforcement process as the return of the title to the owner's name. [2]
For related topics, see our articles on return of a donated property and witness evidence in civil cases, and our page on title cancellation and registration actions.
For details, see our article on contract of maintenance until death.
Conclusion
In a simulated property transfer, the correct starting point is to identify who the claimant is, what the real common intention was and which legal result is sought. In party simulation, written evidence takes prominence; in simulation by the deceased, the heir's own right; and in a creditor's action, the real debt and the purpose of collection. A general "title cancellation" heading used without drawing these distinctions can mislead as to evidence, time limits and how the judgment is applied.
Frequently Asked Questions
Does a gift shown as a sale in the title deed always get cancelled?
No. The real intention, the validity requirements of the hidden transaction, the claimant's position and the rules of proof are assessed together.
Can I rely on a simulated transaction that I made myself?
The claim is not entirely impossible. However, written evidence and the principle of good faith are decisive in the concrete file.
Is non-payment of the sale price sufficient evidence?
Not in every case. In a genuine sale, non-performance of the payment obligation may also occur.
Is a witness always sufficient among relatives?
No. Proof against a written instrument, initial evidence and the applicable exceptions must be examined.
Can children bring an action for simulation by the deceased while the owner is alive?
A mere expectation of becoming an heir in the future does not give rise to this special right of action. Other existing rights and questions of capacity are assessed separately.
Is a fiduciary transfer also simulation?
Not always. A relationship involving a genuine transfer and an obligation to return, and an apparent transaction that remains only apparent from the start, are different legal structures.
If the creditor wins the case, is the house transferred into its name?
In a collection action under TBK Article 19, depending on its conditions, the outcome may be authority to attach and sell. Registration in the name of the creditor who brought the action is not an automatic result.
Is the later buyer's title also necessarily cancelled?
No. The later person's reliance on the register and their good faith are assessed separately.
Sources and legal bases
1 — Law No. 6098, Turkish Code of Obligations, especially Articles 19, 28, 39, 237 and 288.
2 — Law No. 6100, Code of Civil Procedure, especially Articles 2, 12, 26, 33, 190, 199–203, 367 and 389–397.
3 — Law No. 4721, Turkish Civil Code, especially Articles 2–3, 706 and 1023–1025.
4 — 1st Civil Chamber of the Court of Cassation (Yargıtay 1. Hukuk Dairesi), December 8, 2025, E.2025/311, K.2025/5756, decision text; party simulation and proof.
5 — 12th Civil Chamber of the Court of Cassation (Yargıtay 12. Hukuk Dairesi), February 16, 2026, E.2025/9160, K.2026/932, decision text; distinction between TBK Article 19, Articles 277 and 283/1 of the Enforcement and Bankruptcy Law.