Title Cases Arising from Abuse of Authority Under a Power of Attorney
Transferring a property by power of attorney requires the agent to use the authority of representation in the interest of the principal and in line with the duty of loyalty. Where the agent transfers the property for the agent’s own benefit or for the benefit of a third party, the price is not paid, the transaction departs markedly from the real value, or the agent acts contrary to the principal’s will, the parties to the transaction and the position of the third party are examined together.
In this context:
- The agent transferring property to himself or herself or to connected persons
- Sales and transfers contrary to the principal’s instructions
- Failure to pay or pass on the sale price to the principal
- Transactions made outside the scope of the authority of representation
- Allegations that the agent and the buyer acted together
- Assessing the good faith of subsequent owners
- Claims for compensation and for an accounting if the land registry record cannot be corrected
Cancellation and Re-Registration of Title for Lack of Capacity
Whether the person who transferred the property had the capacity to act on the date of the transaction is significant, particularly in files involving age, illness, cognitive condition, medication or a guardianship relationship. The examination looks at the person’s condition not on the date of the action but on the date the land registry transaction was carried out.
In this context:
- Assessing capacity to act on the date of the transaction
- Reviewing hospital, family physician, pharmacy and treatment records
- Assessing guardianship and restriction records
- Examinations by the Council of Forensic Medicine (Adli Tıp Kurumu) or the relevant medical board
- Witness accounts of conduct before and after the transaction
- Reviewing the land registry transaction file and the records of the identity and declaration of intent
- Assessing later transfers and the legal position of third parties
Land Registry Disputes Based on Fraudulent Misrepresentation, Mistake or Duress
Where it is alleged that a transfer of property took place under the influence of fraudulent misrepresentation, fundamental mistake or duress, the nature of the defect of intent, the date of learning of it or of the end of the influence, the notices given to the other party and the preclusive periods are significant.
In this context:
- Misleading as to the nature or consequence of the transaction
- Transfers made in the belief that a different document was being signed
- Fraudulent conduct concerning the price, the buyer or the property details
- Land registry transactions made under pressure or threat
- Correspondence, bank records and witness accounts capable of proving the defect of intent
- Assessing time limits and the notices given to the other party
Because time limits in claims based on a defect of intent vary according to the legal ground and the dates of the specific case, the dates of the transaction and of learning of it should be determined without delay.
Documenting the Situation on the Date of the Transaction
A claim of lack of capacity cannot be built on advanced age alone. Medical records close to the date of the transaction, prescriptions, guardianship documents and witnesses who knew the person’s conduct on that date are addressed together. In a power-of-attorney dispute, the instructions, the sale price and to whom the money was transferred matter as much as the wording of the authority.
Time limits and notice for defects of intent
In claims based on fraudulent misrepresentation, mistake or duress, the date of learning of it or of the end of the influence under Article 39 of the Turkish Code of Obligations (TBK), and the declarations of intent, are examined separately. These claims should not be assumed to be subject to the same time-limit regime as an allegation of wrongful registration. Share the dates and any notices sent to the other party without delay.